The Past, Present, and Future of Empirical Legal Scholarship: Judicial Decision Making and the New Empiricism

Over the last century, empirical legal scholarship has joined the ranks of the mainstream within the legal academy. In this article, Professor Heise traces the history of legal empiricism and discusses its growing role within the legal academy. First, the article traces legal empiricism through the twentieth century from the legal empiricism movement of the early twentieth century, to post-World War II efforts to revive legal empiricism, including the Chicago Jury Project and large-scale foundational support for empirical legal research, through current support for legal empirical research from both the law schools and other research centers. The article then discusses several factors which have influenced the recent growth in legal empirical research including: the increasing breadth and maturity of legal scholarship overall, an increase in collaborative research by law professors, a growing number of available datasets and sophisticated computational tools for statistical analysis, and an increasing call for empirical research from the bench. Next, the article uses empirical judicial decision-making literature to illustrate current trends in empirical legal research, including the two predominant research models of behaviorism and attitudinalism, and developing research in the areas of the legal, public choice, and institutionalism models for explaining judicial decision making. Finally, the article discusses some of the inherent limitations of current research methodologies and available databases, but concludes that structural limitations aside, empirical legal scholarship has arrived as a research genre and will continue to flourish