Academic legal research isn’t what it used to be.
Historically, legal scholars focused largely on theoretical work—poring over dusty law books to track down the intended meaning of a particular legislative clause, for example. Yet recent years have seen a new development: the rise of empirical, data-driven, and collaborative research in the legal academy—often aiming to study the real-time effects of the law on people and institutions.
“The legal academy has been turning to empirical work in recent years to get a better handle on what the world looks like and the impacts of legal change and legal reform,” says J.J. Prescott, the Henry King Ransom Professor of Law, co-director of the Empirical Legal Studies Center, and co-director of the Program in Law and Economics. He is one of several Michigan Law faculty members who are actively pursuing empirical research projects. “There are a lot of perceptions about how the system works, and often we have no real data to back up those perceptions,” Prescott adds. “They can be quite different from what’s actually going on.”
The value of empirical research
“To really understand law, we need to have a description of how legal actors behave and how the world actually works,” Prescott says. “That often requires thinking about measurement and framing. You need data, but you also need to think very carefully about distance, angle, and perspective if you want to draw out the most important aspects of any descriptive account. We need to understand not only the gist but also the amount of uncertainty and the underlying mechanisms that create our world. And that’s hard.”
Albert Choi, the Paul G. Kauper Professor of Law, started shifting his focus from theoretical research and doctrinal analysis to more empirical work six or seven years ago. “I wanted to get a better understanding of the impact of changing laws,” he says. “These are questions that cannot be readily answered by theory. I wanted to see what is actually happening at the ground level.”
Eve Brensike Primus, ’01, is the Yale Kamisar Collegiate Professor of Law as well as director of the MDefenders program and the Public Defender Training Institute. “I think a lot of legal doctrines can be and should be informed by actual practices about what is happening in the world,” she adds. “For example, in my field of criminal procedure, there are a lot of standards where the court asks, what is a person’s reasonable expectation of privacy under certain circumstances? We can stand back in the abstract and have judges opine about what they think privacy expectations should be, or we can give them data about what people think.”
Not surprisingly, researchers hope their work will ultimately have an impact in the world outside academia, and empirical work can help accomplish that.
“Empirical research is important because the law is a human institution,” says Assistant Professor Roseanna Sommers, who also holds a PhD in psychology and is well known for her research on issues of consent and autonomy. “It’s meant to govern real people who are not always perfectly informed or perfectly rational. So if we’re trying to use the law to either govern people’s behavior or shape their attitudes, we have to understand how people think and behave. Empirical research can help us understand where the law departs from ordinary intuition and hopefully bridge that gap where translation is necessary.”
Professor Edward Fox, an expert on tax issues, adds: “In my work, I’m hoping to inform policymakers about the relevant trade-offs of different choices and trying to make better policy. You can’t really understand that without understanding the empirical data and understanding the effects that laws are having in the real economy. That’s the primary thing.”
Other changes in academic legal research
Empirical research requires data. Often, it requires lots of data—data that may be hard to find, or scattered in a number of different places, or that exists but hasn’t been collected in any meaningful way.
The increase in publicly available databases and other digital tools is one trend running parallel to the rise in empirical research—and helping to enable it. Primus noted that her work drawing on old newspaper articles, for example, would have been impossible before the digital era.
“It used to be really challenging to find briefs that lawyers had filed in cases, and now there are databases where you can find those briefs. Finding social science research used to be far more challenging for those in law fields, and now there are lots of different ways you can do that,” she says. “As we get into the world of generative AI, I imagine that all of these databases and what they can do will continue to evolve.”
Sommers mentioned another practical change that technology has enabled: She recruits study participants and conducts surveys online, saving countless hours.
One trend that started earlier but continues to develop is an increase in interdisciplinary research involving law and another field, such as psychology, sociology, or philosophy. Fox—whose work combines law and economics—says, “I think it really helps introduce new perspectives into the law and often additional rigor. But I also think it has some drawbacks—particularly when judges regard law scholarship as less useful than it used to be because it’s less doctrinal.”
Sommers noted a related trend developing over recent decades: moving from purely observational research into more complex analyses. In the past, she says, a researcher might “tally up the cases that all have this feature or that feature. It didn’t involve statistical analysis.” More recently, though, “people with interdisciplinary training or serious technical training in economics or political science or psychology are going beyond counting to test hypotheses, to try to establish causality. It’s gotten more sophisticated.”
One other change relating to all these is a rise in collaborative research. “For a long time in legal research, the standard was solo-authored works,” Prescott says. “Now collaborative research is much more common, and it has become easier because of technology. My co-authors and I are constantly emailing, texting, or on the phone, plus we have regularly scheduled Zoom meetings. We have a lot of different ways to communicate, even when we’re on different continents.”
The continuing value of law libraries
For most of legal history, research has meant libraries. As the work becomes more empirical, more digital, and more collaborative, do libraries still have an important role?
Michigan Law researchers strongly feel they do, even as the libraries’ roles continue to evolve. The Michigan Law Library currently has two research associates dedicated to empirical studies, as well as a faculty research librarian, Shay Elbaum, ’14, who manages the library’s faculty research services. Professors regularly turn to these staff members for assistance.
For example, Choi often works with the library staff to learn which types of relevant datasets may be available for a given project, and they have also helped him get access to some of that data when it’s not fully available to the public. “The library has been hugely helpful,” he says.
Prescott has worked with one of the empirical research associates, German Marquez Alcala, on a number of papers. “He has played an important hands-on role with the empirical analysis or has helped me present or visualize the results—or even just read my papers with empirical chops to help critique and improve them,” Prescott says.
The researchers all agreed that the library will continue to play an important role in future research. “Moving to a more digital world doesn’t change the fact that we will still need repositories,” Primus says. “But I also think of libraries as expert institutions. It’s not just the collections, it’s the people working on the staff.
“There are a lot of people in my field, and probably in other fields, who don’t truly understand the expertise that people who work in libraries have and how much they can be partners in helping you think about how to approach research and in assisting you when you’re dealing with complex, large projects. I would encourage more people to think about the expertise of law librarians as integral to the work that they’re doing. I think they’ll find the quality of the work they’re able to do as a result will improve.”
What Are You Working On Now?
Faculty members typically have several research projects underway at any given time. Following are a few current examples from faculty doing empirical work.
Albert Choi, Paul G. Kauper Professor of Law
“Since the emergence of the Robinhood stock-trading app, and since several large brokerage firms dropped their commissions, we have seen a new trend: a large increase in individual, retail shareholders. One of the biggest puzzles within corporate finance is how this change in shareholder base affects the corporate governance of the firms. I have more or less completed one project related to this—on the phenomenon of meme stocks—but that has led to some follow-up projects: looking at the influx of retail shareholders much more broadly, across all publicly traded companies. Specifically, I’m studying the impact of the increase in retail stock ownership on various metrics, especially on corporate governance. This is a massive project that requires a lot more data. We’re making good progress on the project.”
Edward Fox, Professor of Law
“One current project focuses on the realization rule, which is the idea that increases in the value of assets are not subject to tax until the assets are sold. The first part of the project uses data from the Federal Reserve Survey of Consumer Finances to measure how much unrealized income is out there, and from that to try to understand what portion of total income (including unrealized gains) the current tax base captures. The other part of the project involves this idea in the popular press of ‘buy, borrow, die’—where rich Americans purchase assets, borrow against the appreciation of those assets, consume that cash, and roll over those loans until they die. There’s no income tax on unsold gains held at death, so the net result is that they never pay a dime in income tax. This seems like a problem, but we don’t know anything systematic about how prevalent this practice is. We’re trying to get a handle on that empirically.”
J.J. Prescott, Henry King Ransom Professor of Law
“I’m evaluating Michigan’s adoption of automatic expungement of criminal records for those who qualify with Sonja Starr at the University of Chicago. This is different from traditional, petition-based expungement, which presents those eligible with a number of barriers—such as the person not having the money or expertise to complete the process or even not knowing that it’s available. Automatic expungement is designed to reduce those barriers. The idea is that the state can just check your record, and if you’re eligible, you receive record relief behind the scenes. The problem is notice; with automatic expungement, you may have no idea that you now have a clean slate to work with, so you continue to work under the table or decide not to apply to certain jobs because you think you have a record. We really don’t understand what kind of impact automatic expungement will have on people’s lives, and such reforms already affect millions of people across many states. We’re currently at the data collection stage.”
Eve Brensike Primus, ’01 Yale Kamisar Collegiate Professor of Law
“I’m working on a project about delays in the appointment of public defenders or indigent defense attorneys. In many parts of the country, we’re seeing circumstances where an individual is accused of committing a crime and because of a dearth of available lawyers, they’re languishing in jail waiting for counsel. I am collecting data about the ways in which different public defense or indigent defense delivery systems operate—such as, in a given jurisdiction, how long after somebody gets arrested is a lawyer made available to them, how many cases does that lawyer have, and how much time does that lawyer have with them? Through the aggregation of that data around the country, we can figure out when there are constitutional problems, and we can also often figure out how jurisdictions that are doing it better are able to do so.”
Roseanna Sommers, Assistant Professor of Law
“I just published a paper with Kate Weisburd, a criminal procedure scholar at the University of California College of the Law. We ran a survey looking at how ordinary people understand Miranda rights—not what Miranda rights are, but how to invoke them. What do you need to do in order to, for instance, invoke your right to silence or to invoke your right to counsel during an interrogation? That study exposed a disconnect between the way that the case law has developed to require quite a high bar for invocation and the way the public tends to understand Miranda. Various courts say that it’s not enough for a person to say, ‘Maybe I should get an attorney,’ or ‘It’d be a good idea for me to get an attorney.’ The law says those statements are too ambiguous or equivocal. You have to speak clearly and unambiguously. We’re studying whether regular people think statements like that are perfectly clear and whether they expect the law to recognize that kind of language as an invocation.”
