Building Theory Through
Empirical Legal Studies
Richard Lempert, Eric Stein Distinguished
University Professor of Law and Sociology,
emiritus, University of Michigan
What are we theorizing?
Everything:
• E = MC2
• Bush v. Gore stands for the proposition that …
Everything but the above:
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Extra legal force that affect legal decisions
Effects of law and its enforcement
Law as a model for other social institutions
Etc.
Is the Title Redundant?
How else does one do theory?
• Physics Envy
• First theory then data
– Einstein and Eddington
• Deduce from mathematical logic
• Einstein had it easy.
• Subatomic particles do not have minds of their own.
• We care about the tails.
A Bad Influence
The Grand Theory Tradition
• Marx, Weber, Durkheim, Parsons,
Wallerstein,Black
• As much perspective as theory
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Implications not formally derived
Conceptually hard to operationalize
Predictions hold only to some degree for some cases
Possible tests of implications not at theory scale
• Insights and tropes
– Influences without incorporation
Middle Range Theory
• Resource Mobilization, Labeling, Differential
Association, Social Movement, etc.
– Closer to the data.
• More specific implications.
• Easier to operationalize.
• Greater chance of formal treatment.
– Differences from grand theory inconsistent and often
slight.
• Theories compete for same turf.
• In and out of style but seldom absorbed or replaced.
– Partial explanations.
Micro Level Theories
• Made for testing
– Precise derivations from theory
– (Relatively) Easy to operationalize hypotheses
– Sophisticated formal modeling
• But
– Everything has a theory
– Theory or explanation
Two Types of Theory
• Capital T Theory
– Self conscious social science explanation.
• Generalizable motivation for or result of research.
• Derived hypotheses allow theoretically informed investigation.
• Optional.
• Small t Theory
– Conscious or subconscious expectations.
• Reflects world view (e.g. what measures what; how variables
relate; what to observe).
• Often mimetic.
• Unavoidable.
Theory Construction:
A Priori or Post Hoc
• Before is better
– Tests have chance to fail.
• We (humans) make sense of randomness.
– 3, 7, 11 __
20
– True of methods as well
• The more diverse our attempts the more likely we are
to find something.
– Analogous to significance with many variables
EDA Makes Sense
• Questions and concerns.
– How much?
– Can we test results on independent sample?
– Sensitivity testing?
– What to disclose?
– Do results make theoretical sense?
– What do I want to find?
Inductive Approaches to Data
• Virtues
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Grounded in reality.
Sorts data.
Opens the eyes and imagination.
Starts dialogue with theory.
• Cautions
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Data quality crucial.
Requires reasonable small t theories.
Replication essential.
Avoid “dustbowl empiricism.”
Uses of Theory
• Search for Evidence.
• Assess empirical research.
• Important for Policy
Good Theories Suggest Good Tests
• Durkheim on Egoistic Suicide (Stinchcombe)
– A higher degree of individualism in a group causes
higher rates of suicide in group.
• Do Protestants have higher suicide rates than
Catholics?
• Do Bachelors have higher rates of suicide than men
married with families.
• Do highly educated urban, commercial regions have
higher rates of suicide than traditional rural areas?
– Are Jews an exception?
• Ellickson on Coase Theorem
Theoretical Warning Signs
• Expect robustness to theory-irrelevant
variation.
– Ehrlich and the death penalty (longitudinal).
• Expect theoretically relevant variables to be
there absent a good reason why not.
– Ehrlich and the death penalty (cross-sectional)
• Expect “side variables” to make theoretical
sense.
– Lott and Mustard on right to carry.
Policy and Theory
• Theoretically based policy should demand
evidence.
• Evidence based policy should
(almost always) demand theory.
– Sherman and Berk and arrest for spouse abuse.
• Importance of mechanism or Milwaukee is not
Minneapolis (and to leave a woman is not to stop
hitting women.)
Bottom Line on Policy, Research and
Theory
Policy makers should not be choosing
between reliance on theory and reliance on
the results of empirical investigation. Instead
empirical investigation should be informing
theory and theory should be suggesting areas
where it is in need of refinement through
further investigation. If theory is the foot that
I would on balance want to see in front, it is
not less important that there be an empirical
foot as well to stand on.
A look at the Future
• Complexity, dynamic models and a different
role for theory
– Experimental design
– Network models
– Agent-based models
– Games and Simulations