Empirical Methods and the Law

One can divide empirical analysis of legal issues into three major branches: (1) the use of scientific empirical analysis by litigants to attempt to prevail in individual cases, (2) the use of social scientific empirical analysis in individual cases, and (3) the use of the empirical methods to describe the legal system’s operation. The first two uses present difficulties that reflect a fundamental limitation on using statistical methods in law: the difference between establishing statistical association and establishing actual causation in an individual case filtered through our adversary legal system. The third use encounters no such obstacle and can aid understanding of how the legal system operates and inform policymakers. Accurate description of the legal system’s operation can in turn influence the outcome of specific cases. More important accurate description of the legal system can supply the information necessary for sound policymaking; for example, a substantial body of evidence suggests that our civil justice system performs quite well