Spurred by a desire to strengthen factual claims about the state of the law in scholarship and practice, the University of Chicago Law Review will convene top scholars and judges next week for a conference aimed at bringing a more rigorous methodology to legal analysis.
The symposium—organized by Anup Malani, the Lee and Brena Freeman Professor of Law; William Baude, the Neubauer Family Assistant Professor of Law; and Assistant Professor Adam Chilton—is designed to help develop best practices for different methodologies for describing law and legal practice, whether used as the basis for legal argument or for normative claims about what the law ought to be.
“Much of the core task of a lawyer, a judge, or a researcher amounts to assessing substantive legal materials, like constitutional provisions, legislation, or court decisions,” the organizers wrote. “But these materials are often canvassed and analyzed non-systematically. Although there are already extensive debates about how to interpret statutes or constitutional text or precedents, those debates tend to center on substantive disagreements about the legal effect of the provisions and not the more methodological question of how a given interpretive approach should be pursued. The academy can help by developing best practices for careful analysis.”
Other disciplines, particularly medicine and psychology, already employ rigorous standards for generating and analyzing data, systematically supporting claims with evidence and reviewing literature—an approach that makes it easier for readers to evaluate the validity of descriptive or positive claims made by researchers and practitioners. The legal profession has not fully developed best practices for its own brand of empirical work for at least two reasons, the organizers said. First, there is no shared normative objective—analogous to curing a patient’s illness. This has left the focus on normative claims rather than positive ones. Second, recent methodological innovations have focused on borrowing theoretical structures from other disciplines rather than developing empirical methodologies for quintessentially legal data, such as cases, statutes, and regulations.
Malani, Baude, and Chilton will present a paper on conducting doctrinal work that argues for a four-step process that includes clearly defining a question about the state of the law, conducting an exhaustive search for relevant cases, examining the quality of those cases, and synthesizing the results of those cases using transparent methodology. The case selection process will ensure that authors avoid confirmation bias, which arises because lawyers consciously or unconsciously select cases for review that support their prior beliefs on what the law is or ought to be. Transparency also enables doctrinal work to be replicated, increasing readers’ confidence that an author’s survey was conducted correctly.
“We hope that this symposium will start a discussion on how best practices can be developed to make legal analysis more accurate, transparent, and useful,” Chilton said.
Sessions will cover a variety of topics, including frank discussions on whether more rigorous standards are needed and how legal scholarship can best help judges. Many sessions will explore standards for specific areas of legal research, including analyzing administrative regulations and interpreting the Constitution from an originalist perspective.
“The Law Review is excited to facilitate this discussion,” said Michael Kenstowicz, ’16, the Law Review’s 2016 Book Review and Symposium Editor. "Our journal aims to publish thought-provoking scholarship that advances our understanding of diverse areas of the law and that raises new important questions. We believe that this conference will improve our ability to consistently realize these goals by generating insights that can guide our evaluation of potential publications. We also think that these insights will be very useful for practicing attorneys and legal academics."