A common criticism one reads of ELS is that “too much of the work is driven by the existence of a data set, rather than an intellectual or analytical point.” It’s ironic that this is the very critique that the realists made of traditional legal scholarship. Consider the great Llewellyn:
“I am a prey, as is every man who tries to work with law, to the apperceptive mass. I see best what I have learned to see. I am a prey, too — as are the others — to the old truth that the available limits vision, the available bulks as if it were the whole. What records have I of the work of magistrates? How shall I get them? Are there any? And if there are, must I search them out myself? But the appellate courts make access to their work convenient. They issue reports, printed, bound, to be had all gathered for me in the libraries. The convenient source of information lures. Men work with it, first, because it is there; and because they have worked with it, men build it into ideology. The ideology grows and spreads and gains acceptance, acquires a force and an existence of its own, becomes a thing to conjure with: the rules and concepts of the courts of last resort.”
Or to put it differently, all of our work – quantitative empiricists, doctrinalists, corporate finance wizards, administrative regulation parsers, legal philosophers, and derivative social psychologists alike – is driven by the materials at hand. For most lawyers and legal academics, appellate opinions are the most convenient pieces of information available; we use such opinions to create mental models of what the “law” is, and (ordinarily in legal scholarship) what it ought be. Indeed, whenever trial court opinions are cited, they are often discounted as aberrant or transitory, in part because they are known to be unrepresentative!
Why, you might wonder, is the convention of data-driven-scholarship a particular problem in quantitative empirical work? ELS’s detractors make three interrelated claims: