Making the Case for Case Studies in Empirical Legal Research

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Title: Making the Case for Case Studies in Empirical Legal Research

Author: aikaterini argyrou, description: article, 19 pages., subject: legal research, qualitative research, publish date: - -, dois: https://doi.org/10.18352/ulr.409, language: english, location: online | click here.

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  • October, 2016
  • Stumbling Blocks in Empirical Legal Research: Case Study Research
  • October 2016
  • Artikel Stumbling Blocks in Empirical Legal Research: Case Study Research
  • Artikel Statistical Analyses of Court Decisions: An Example of Multilevel Models of Sentencing
  • Redactioneel Introduction Special Issue Stumbling Blocks in Empirical Legal Research

Citeerwijze van dit artikel: Lisa Webley, ‘Stumbling Blocks in Empirical Legal Research: Case Study Research’, 2016, oktober-december, DOI: 10.5553/REM/.000020

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  • Introduction

Such legal research employs an empirical method to draw inferences from observations of phenomena extrinsic to the researcher. Putting it simply, legal researchers often collect and then analyse material (data) that they have read, heard or watched and subsequently make claims about how what they have learned may apply in similar situations that they have not observed (by inference). 1 x For insight into the extent to which legal researchers undertake empirical research and the lack of clarity around empirical methods in law see Epstein, L. and King, G. (2002) ‘The Rules of Inference’ Vol. 69 No. 1 The University of Chicago Law Review 1-133 at 3-6, Part I. One such form of empirical method is the case study, a methodological term which has been used by some researchers to describe studies that employ a combination of data sources to derive in-depth insight into a particular situation, by others to denote a particular ideological approach to research recognizing that the study is situated within its real-world context. 2 x Yin, R. K. (2014) Case Study Research Design and Methods (5th edn.) Sage Publications, 12-14. It is consequently a flexible definition encompassing approaches to the data and the stance of the researcher, 3 x See Hamel, J. with Dufour, S. and Fortin, D. (1993) Qualitative Research Methods Volume 2 , Sage Publications, ch 1. but its malleability has led some researchers incorrectly to stretch the term to encompass any study that focuses on one or a restricted number of situations. 4 x See Gerring, J. Case Study Research: Principles and Practices , Cambridge, Cambridge University Press, 2007 at 6. For a further discussion see Gerring, J. ‘What is a case study and what is it good for?’ (2004) Vol. 98 No 2 American Political Science Review 341-354. This looseness in definition in a legal context may perhaps be linked to confusion as between teaching and research case studies; some traditions in legal education employ a teaching method known also as ‘case study method’ which operates quite differently from its research counterpart. For a discussion of the differences between teaching and research case studies see Yin, 2014, 20 and for a discussion of teaching case studies see Ellet, W., (2007) The Case Study Handbook: How to Read, Discuss, and Write Persuasively About Cases , Boston MA, Harvard Business Review Press; Garvin, D. A. (2003) ‘Making the Case: Professional Education for the World of Practice.’ (Sept–Oct) Harvard Magazine 56-65. This has resulted in concerns that the definition has been co-opted as a means to explain any small n 5 x ‘n’ (number) is used to denote the number of observations in the study, N is used to describe the total number within the population when n denotes the sample observed. empirical study that has a focus on a particular subject, time-frame or location, and further that this has led to poor quality empirical research in law. 6 x For a discussion of the state of empirical research in law see Epstein and King, 2002. This is perhaps unsurprising, as law programmes tend to be very strong at teaching lawyers how to source, interrogate and then draw valid inferences from legal data sources such as cases and legislation, but less adept in the context of other types of data (for example survey data, interviews, non-legal documents and/or observation). 7 x See Webley, L. (2010) ‘Part III Doing Empirical Legal Studies Research Chapter 38 - Qualitative Approaches to ELS’ in Cane, P. and Kritzer, H. (eds.) Oxford Handbook of Empirical Legal Studies , Oxford, Oxford University Press. Case study method usually involves an array of research methods to generate a spectrum of numerical and non-numerical data that when triangulated provide a means through which to draw robust, reliable, valid inferences about law in the real world. 8 x For a discussion about the differences between numerical (quantitative) and non-numerical (qualitative) data see Webley, id; Epstein and King, 2002, at 2-3; King,G., Keohane, R. O., and Verba, S ., Designing Social Inquiry: Scientific Inference in Qualitative Research , Princeton NJ, Princeton University Press, 1994 at 6. It is relatively underused in empirical legal research. This article aims to make a contribution to those new to the case study method. It will examine the purpose of and why one may wish to undertake a case study, and work through the key elements of case study method including the main assumptions and theoretical underpinnings of this method. It will then turn to the importance of research design, including the crucial roles of the academic literature review, the research question and the use of rival theories to develop hypotheses in case study method. It will touch upon the relevance of identifying the observable implications of those hypotheses, and thus the selection of data sources and modes of analysis to allow for valid analytical inferences to be drawn in respect of them. In doing so it will consider, in brief, the importance of case study selection and variations like single or multi case approaches. Finally, it will conclude with some thoughts about the strengths and weaknesses associated with undertaking research via a case study method. It will address frequent stumbling blocks encountered by researchers, as well as ways so as to militate against common problems that researchers encounter. The discussion is necessarily cursory given the length of this article, but the footnotes provide much more detailed sources of guidance on each of the points raised here. This article is an introduction to a case study method rather than an analytical work on the method.

  • 1. Case Study Method: Purpose of a Case Study, Why Undertake One?

Case study method falls within the social science discipline and as such has scientific underpinnings. The case study examines phenomena in context, where context and findings cannot be separated. Case study design is also sometimes used to investigate how actors consider, interpret and understand phenomena (e.g., law, procedure, policy) and therefore allows the researcher to study perceptions of processes and how they influence behaviour, for example to understand judges’ sentencing choices in a Dutch police court. 9 x Mascini, P., van Oorschot, I., Weenink, D. and Schippers, G., (2016) ‘Understanding judges’ choices of sentence types as interpretative work: An explorative study in a Dutch police court’, (37) (1) Recht der Werkelijkheid 32-49. This may help to understand how laws are understood, and how and why they are applied and misapplied, subverted, complied with or rejected. This can flow back into the legal and policy making processes, court procedure, sentencing, punishment, diversion of offenders etc., and may have a high impact as a result. The conditions precedent for case study method have been succinctly explained by Yin as follows:

‘doing a case study would be the preferred method, compared to the others, in situations when (1) the main research questions are “how” or “why” questions; (2) a researcher has little or no control over behavioural events; and (3) the focus of study is a contemporary (as opposed to entirely historical) phenomenon.’ 10 x Yin, 2014: xxxi and further 16-17.

The key points to note here are that a case study is a real-world in-depth investigation of a current complex phenomenon. The research will take place in situ (rather than in the library or moot court room) where the researcher cannot control the behaviour of research participants.

The purpose of the study is to learn how or why something happens or is the way it is, and this is achieved by collecting and triangulating a range of data sources to test or explore hypotheses. 11 x Triangulation is the term used to explain that a research question is considered from as many different standpoints as possible, using as many different data types as possible to permit a holistic examination of the question to see which explanations, if any, remain consistent across all data sources. It caters for a wide range of modes of enquiry: the investigation may be exploratory (explore why or how something is the way it is), descriptive (describe why or how something is the way it is) or explanatory (determine which of a range of rival hypotheses, theories etc. explain why or how X is the way it is). 12 x Yin, 2014: 5-6. Some categorise case studies as those designed to be theory orientated, and those designed to be practice orientated. 13 x See Dul, J. and Hak, T. (2008) Case Study Methodology in Business Research , Oxford: Elsevier 8-11, 30-59. Thereafter the design scope is very broad; the data collected may be qualitative and/or quantitative, collected via a variety of methods, and the case study may be a single case or be made up of a small number of cases. The breadth of data collected may be illustrated by Latour’s ethnography of the Conseil d’Etat in France, which studied the connections between human and non-human actors to explore their relationship with ‘the legal’ and ‘the Law’ is assembled in that court context. 14 x Latour, B. (2010) The Making of Law: An Ethnography of the Conseil D’Etat , Cambridge: Polity Press. Case study method is a way of thinking about research and a process through which one seeks to produce reliable, fair findings. It can provide deep insight into a particular situation, whether particular in time, in location or in subject-matter. 15 x For a discussion of ethnomethodological aims to study practical life as experienced in context as an end in itself, as experience is subjective and situational, see Small, M.L. ‘‘How many cases do I need?’ On science and the logic of case selection in field-based research’ (2009) Vol. 10 (1) Ethnography 5, 18. It may allow for transferable findings in respect of the theoretical propositions/hypotheses being examined if not to a population as would often be the situation in much quantitative research. 16 x For greater insight on this point see Lipset, S. M., Trow, M. and Coleman, J.S. (1956) Union Democracy: The Internal Politics of the International Typographical Union , New York: New York Free Press at 419-420; Yin, 2014, 21. For a discussion of the problems inherent in aping quantitative terminology in qualitative work see, Small, 2009, 10, and at 19 for further reading on the logic of case study selection and further reading on extended case method. It aims to examine rival hypotheses, propositions, potential explanations previously advanced (exploratory study), or to test findings from a previous case study examining similar phenomena in a new instance (a replication or confirmation study). 17 x Gerring, 2007, 346.

As described so far it is a research method that appears to have a lot in common with experiments and tests of statistical significance. But case study method differs markedly from a big data survey or double-blind experiment in that it seeks explicitly a phenomenon in its natural environment and (in most instances) without means to control for variables, including the behaviour of any participants. 18 x Although note that there are some scholars who believe that case study method can include elements of experimental testing, for example, Gerring, J. and McDermott, R. (2007) ‘An Experimental Template for Case Study Research’ Vol. 51 No. 3 American Journal of Political Science 688-701. One such study in law that has been described by some, if not by the researchers themselves, as a case study did include an experimental design within the battery of methods employed see: Moorhead, R., Sherr, A., Webley, L., Rogers, S., Sherr, L., Paterson, A. & Domberger, S. (2001) Quality and Cost: Final Report on the Contracting of Civil Non-Family Advice and Assistance Pilot (Norwich: The Stationery Office). Experiments aim to control some factors so as to test hypotheses under different conditions, quantitative studies attempt to control for environmental factors through sampling techniques and data collection instrument design so as to minimise their biasing effects, but case study method does not involve control of the environment, or control for the environment, instead it aims to harness context and work within it. It examines in great detail one situation (referred to as a case or unit) or a very small number of situations, to use context as a means to particularise the findings. It also seeks to explain which elements of context may mean that some of the findings are applicable to other situations and if so under what conditions. A case study tells the researcher about the case and the extent to which previous explanations are sustained, in some instances it may also allow the researcher to make claims that some of the findings can be applied to another case or cases too, although this is heavily dependent on the research design and its execution. 19 x Campbell, D.T. Foreword in Yin, 2014 xviii. But it is rarely, if ever, a method that can be used by one to want to make universal claims. A case is not a proxy for a sample of a population in a survey, for example, it is a study of a phenomenon in itself rather than a means through which to view the whole world. Having said that, samples can be used to help select cases in a sound manner. 20 x Seawright, J. and Gerring, J. (2008) ‘Case Selection Techniques in Case Study Research: A Menu of Qualitative and Quantitative Options’ Vol. 61 No. 2 Political Research Quarterly 294-308.

Case studies are only one of a number of ways to undertake socio-legal or criminological research and it is important to give proper consideration to the full range of research methods prior to making a final decision to adopt a case study method. 21 x Yin, 2014: chapter 1. It may be better to employ a different one: legal history; doctrinal legal study (legal cases, legislation, regulatory documents); a policy study (policy documents, communiqués etc.); a statistical analysis (an analysis of the number of different types of legal cases that go before the courts, their key features and what role these play in chances of success for the plaintiff); a large-scale survey; stand-alone interviews; or an experiment in a simulated setting (asking lawyers to read through some scenarios and explain what advice they would give to a client in those situations). But a case study could employ a number of these methods in combination, so how then does one determine whether case study method is right for one’s study? It will largely depend on the nature of the research question to be answered and one’s appetite for undertaking in-depth research aimed at achieving thick description (detailed description of how or why something is as it is) 22 x For a discussion see: Ryle, G. (1949). The Concept of Mind . London: Hutchinson; Lincoln, Y.S. and Guba, E.G. (1985). Naturalistic Inquiry . Newbury Park, CA: Sage Publications; Holloway, I. (1997). Basic Concepts for Qualitative Research . London: Blackwell Science. and/or triangulated findings derived from a range of data sources that develop a new theory or test existing rival theories. It is an intensive study, it requires extremely good planning and design and a robust approach to data analysis too.

  • 2. Case Study Method: Research Design

Research design is of paramount importance in achieving a successful case study, especially so given that the study focuses on one or a small number of situations and the researcher’s in-depth knowledge of and immersion within that case may lead more readily to confirmation bias than in some other forms of study. 23 x Confirmation or interpretive bias of data is something we all have grapple with, as the natural human tendency is to place more weight on evidence that confirms our view than on evidence that contradicts it. Strong research design can assist with counter-balancing this to some extent, including the transformation of any expected finding into a hypothesis that one then seeks to falsify rather than to confirm. Research design begins with the choice of research topic, usually then followed by a review of any relevant academic literatures (perhaps beyond the boundaries of one’s own discipline, for example sociology, criminology, political science) to determine an appropriate research question, noting all possible answers to the research question that are posited in the literature. 24 x See Yin, 2014, chapter 1 for more information on the role of the literature review. During this iterative phase the research question will be further refined, so that it may be articulated with precision, which is particularly important for much case study research as the link between the question and the chosen case or cases is usually explicit and explained, consequently a clear research question is considered by many to be an essential starting point to aid the selection of cases to be examined. The rival hypotheses, theories or propositions that may answer the question should, normally, be similarly delineated and clarified, those that remain plausible answers to the research question should be retained and be supplemented with any others that the researcher considers to be alternative viable explanations. Other approaches may be used that are more inductive than deductive, as in the case of many ethnographic case studies such as Latour’s, for example. This phase is an intellectually demanding one, but it sets the foundation for a strong study that is easier to execute at the point of data collection. The literature review also helps to ensure one is up-to-date, that one does not make the same mistakes that earlier researchers have reported as hazards, and to add a theoretical depth to one’s study that aids sophisticated analysis. It may also help to identify useful data collection methods and instruments too. And so time spent on the literature review may be very profitable. So far the discussion has been very general and therefore a little abstract. At this stage it may help to consider a hypothetical research proposal for case study research and work though it as the article progresses. The researcher in our hypothetical scenario is interested in undertaking research on recent reforms to the use of family mediation in the family justice system in England and Wales. She knows that it is now compulsory in most instances for the person who is initiating any court proceedings in a divorce to have participated in at least one mediation information and advice session with the aim of negotiating an outcome in relation to children, money and/or property prior to initiating proceedings in court. She is clear on the law and the procedural issues but not clear on how effective have been these changes, and this is her broad area of interest. After completing her literature review she understands that the key aims of the reforms were to reduce the number of cases going to court by increasing the number of cases that result in negotiated agreements between the divorcing spouses and in doing so to reduce the cost and the time involved in reaching outcomes in divorce cases, reduce the need for people to use lawyers in the negotiating process, to reduce acrimony between the divorcing spouses and to reduce the negative effects on children. Further, the reforms were intended to promote more durable outcomes between divorcing spouses that could be renegotiated effectively if the arrangements for the children needed to be updated to meet changing circumstances. But the researcher still needs to work these insights into a research question before making a final decision on whether a case study is the best method by which to conduct the research. The next sub-section will consider the framing of the research question, and will include examples of how our researcher may draft her question to maximise her chances of undertaking a great study on her area of interest.

A. The Research Question

The process of defining the research question may be a painful, frustrating one but it could also be creative too. It may be necessary to spend a considerable period of time reading the literature so as to narrow down the research topic or statement to a manageable, novel and/or important and scholarly question. 25 x For more assistance with legal research questions refer to Epstein, L. (1995) Studying Law and the Courts in Lee Epstein (ed) Contemplating Courts , Cong Q, 1, 3-5. Some argue it should also seek to address a real world problem, although that is a controversial component and suggests that knowledge for knowledge’s sake is not a legitimate aim. 26 x See King, Keohane and Verba, 1994, 15. The development of a research topic into a research question with reference to the academic literature is sometimes described as the phase in which the researcher has a conversation or dialogue with the literature. This dialogue grounds the study, it also informs the study design, including the case selection and data to be collected. The research question (a statement that ends with a question mark) is made up of two key elements: its substance, the topic or issue that you wish to address and the form of the question ‘who, what, where, how, why’. 27 x See Yin, 2014, at 11, and see further Campbell, J.P., Daft, R.L., Hulin, C. L. (1982) What to Study: Generating and Developing Research Questions (Studying Organizations) , Sage Publications, for further thoughts on research questions The substance of the research question is not simply the topic but the specifics of the topic – is your study to be a contemporary one or a historical one? In what context are you operating? What precisely are you endeavouring to study? The form of the question is also important: as indicated previously, case study method is considered to be better suited to research questions framed in ‘how’ or ‘why’ terms. Single case studies are considered to be an excellent means by which to uncover and understand the processes or mechanisms that influence particular variables (known as process tracing 28 x On process tracing see: Collier, D. ‘Understanding Process Tracing’ Vol. 44 Political Science and Politics 823-830 and George, A. L. and Bennett, A. Case Studies and Theory Development in the Social Sciences , Cambridge, MA, MIT Press, 2005. For an excellent insight into how this has been used in a legal and policy context with reference to changes in Georgia’s tax laws see Ulriksen, M.S, and Dadalauri, N. ‘Single Studies and Theory-testing: The Knots and Dots of the Process-tracing Method’ (2014) International Journal of Social Research Methodology 1- 17. ), why or how different variables are related to each other, for example what influences legislative change or policy formation on a given topic in a given country at a particular time. They are also a sophisticated means through which to test empirically and deductively the congruence of rival explanations (theories or propositions), ‘to what extent’ or ‘how’ and ‘why’ different theories are borne out by the data. 29 x See Blatter, J. and Haverland, M. Designing Case Studies , Basingstoke, Palgrave MacMillan, 2012 at 145 who consider process tracing involves inductive reasoning to build theory and congruence testing involves deductive reasoning to test theories. The form of the initial research question can confound some researchers who initially phrase their question as a ‘what’ question and as a result unnecessarily rule out case study method. Questions can often be reframed, for example: ‘what have the prosecutorial authorities in England and Wales done to integrate victims of domestic violence into the criminal justice process?’ may be rephrased as ‘how have the prosecutorial authorities in England and Wales integrated victims of domestic violence into the criminal justice process?’. At this stage our hypothetical researcher is faced with some choices: should she consider ‘how have the reforms to family mediation used in the divorce context affected the durability and suitability of post-divorce arrangements in England and Wales?’ This would focus on the agreements whether agreed or adjudicated, their longevity, the extent to which they could be made to work after the divorce and how any amendments to arrangements were sought. Alternatively, she could ask ‘how have the reforms to family mediation affected the way in which divorces are conducted in England and Wales?’ This would examine the steps people took so as to get divorced but may also consider the divorcing couples’ perceptions about the process to assist with examining the policy to reduce acrimony, it could also address how much time and money they spent in the process and it could also elicit data on how constructive was their relationship and negotiations subsequent to the initial agreement or adjudication. It could also bring in the role of lawyers and/or consider the children’s experience of the divorce process too. The research design would then follow the focus of the question. Case studies are much easier to design when the research question is expressed clearly, the theory is used to provide possible answers that may be explored or tested and the boundaries of the study are articulated. Some people find it helps to break down a draft research question into its substance and its form, and describe the purpose of the study in a couple of lines too, 30 x Epstein and King suggest a range of possible purposes, at 59, including: to explore something that has not previously been studied; to attempt to settle a debate that has been ongoing within the literature; to examine a well-considered question but in a new way; to collect and analyse new data to seek to confirm or refute previous findings; to analyse an existing data set in a new or better way to seek to confirm or refute previous findings or to develop new ones. and then compare the extent to which all three are congruent and precise before moving on to the next phase of the design process. We shall consider the important role of theory in the next sub-section.

B. The Theory

Case studies afford the opportunity to observe a sequence of events or factors, to evaluate which produce an outcome and why, 31 x Peters, B.G. Comparative Politics: Theory and Method , Basingstoke, Palgrave, 1998 at 14. and to do so in their natural environment. One of the challenges for legal researchers, less so for criminological or sociological researchers who are often trained more fully in this regard, is the need to engage with theory before moving on to the next stage of research design. By theory I mean the explanations that have been posited in the academic literature for why or how something is the way that it is, or claims that suggest relationships between certain things. 32 x But interestingly, stance, or more accurately epistemology is of less significance to this research method than to many others. Case study method links the research question, research design, analysis and logic of inference to such an extent that is can accommodate a range of epistemological traditions from the realist to relativist/interpretivist. And thus scholars who consider that there are facts independent of our interpretation of them (in essence, hard facts operating in an objective reality) and scholars who consider all ‘facts’ to be local interpretations constructed through our own lenses, are able to operate within a case study framework. Having said that their choice of data sources, and their approach to data generation and analysis may well vary considerably. In this context a theory is a relatively precise speculative answer to a research question, which may have been developed by undertaking a study or by analysing others’ studies (a meta-analysis). And theories can be converted into hypotheses when considered in the light of a new research question. The use of theory is exemplified by Uriksen and Dadalauri’s case study on tax policy reform in Georgia which aimed to answer why and how Georgia initiated and managed to implement quite radical and substantial tax reforms between 1991 and 2005 and in doing so sought to interrogate theoretical explanations about the nature of policy reform in developing countries and further to develop a model that could be tested in other post-Soviet states. 33 x Ulriksen and Dadalauri, ibid. See further Dadalauri, N. Tax Policy Formation and the Transnationalizationof the Public Policy Arena; A Case Study of Georgia , Aarhus, Politica, 2011) Georgia was selected as a crucial case. The reasoning for this and also for the methods employed in this study are elegantly set out in the article cited above. In our hypothetical case study it may be possible, for example, to test the theory that mediated agreements lead to less acrimonious relationships between the divorced couple than do lawyer negotiated agreements. One could examine the theory that family mediation is a cheaper and faster alternative to lawyer negotiated settlements and that those mediated agreements are more durable and better suited to family circumstances. In doing so, one may test existing theories and/or to develop a new theory. Or one could test in the chosen context a single theory that is dominant or particularly novel. Our researcher could undertake further reading of the literature to add to these hypotheses and to refine them and eliminate those that are no longer plausible in the light of more detailed investigation. This is known as setting out ‘priors’, prior explanations raised in the academic literature. 34 x On the importance of the identification of priors see Beach, D. and Pedersen, R.B., ‘What is process tracing actually tracing? The three variants of process tracing methods and their uses and limitations’ Sept 1-4 2011 The American Political Science Association Annual Meeting , Seattle, WA as cited by Ulriksen and Dadalauri, ibid; and further Gerring, 2007 ibid. The researcher’s next task would be to consider what she would expect to observe in the study, were any of these hypotheses true (the observable implications of the hypotheses), for example, our researcher would expect to see that divorces conducted using family mediation would be settled through mediation, that the settlement process would cost less and be concluded quicker than in lawyer-led divorces, and that those that used family mediation would be more able to engage in constructive dialogue post-divorce and to renegotiate arrangements in respect of children without the need to resort to lawyers or to the courts. The researcher may also draw up a hypothesis that the agreements would be more durable and the outcomes for children more positive. This pre-emptive delineation of as many possible observable implications, and how they could be measured, would allow the researcher to plan how to conduct the study and to adopt an appropriate design more likely to lead to a robust answer to the research question. 35 x For more assistance on extracting observable implications and considering their measurement see Epstein and King, 2002, 70-76. But one needs to be able to articulate the theory converted into hypotheses with clarity, in order for an observation protocol to be developed. Further, it helps the research design if the researcher is able to pose rival theories or explanations so as to design the study to test for plausible alternative explanations too. For example, one of the rival theories in the family mediation study is that the kind of people who use mediation through to conclusion and the kind of people who either refuse to do so or who drop out without reaching a settlement are different, and those drawn to mediation are more consensus driven and better able to communicate with their spouse than are those who do not. This rival hypothesis would alert the researcher to the need to design the study to examine those who do conclude mediated agreements and those who do not in order to analyse this rival claim. A case study allows for the examination of complex interrelationships between variables in situ, and the theory helps to identify what those variables are.

C. The Selection of the ‘Case’ or ‘Cases’

Definitionally this is when it gets somewhat complicated, as ‘case’ can easily become confused with a ‘legal case’ and further a ‘case‘ can sometimes be confused with the same word used in a different context in quantitative research, a case meaning a single observation or a single data point. This has led some, such as Gerring, to suggest that it may be more accurate to refer to a case study as a unit study so as to underline that this type of study examines multiple things within one unit rather than examining one data source in one context. 36 x See Gerring, 2004, 342. See further King, Keohane, and Verba, 1994, 76-77. The selection of the case or cases is a profound one in any study of this kind. A case may be selected because it is critical to the research question, it is typical, atypical, it provides a longitudinal opportunity (study over time), or it is revelatory meaning that it allows insight where previously this has not be possible. 37 x See Yin, 2014, 51. The nature of the case, its boundaries and features and why it was selected should be set out clearly. 38 x Gerring, 2004, 344. There are often difficulties in establishing the boundaries of the case, the phenomenon under study, and the context that provides a background to the phenomenon but is not itself the object of enquiry. Gerring articulates this as the formal case (the phenomenon) and the informal cases (the penumbra of phenomena which are the context but which will need to be explored in a less formal way so as to distinguish the boundaries of the formal case). The informal units are peripheral, but may have bearing on the formal unit or case, and by considering these informal units at the beginning of the study, and close to its conclusion it will help the researcher to work out what is particular about the unit, and what is transferable to other units. The selection of the case should be guided by the extent to which this location in space, focus and/or time lends itself to construct validity, internal validity, external validity and reliability of design in respect to the research question. 39 x See Yin, 2014, chapter 2. Case studies are particularly prone to selection bias, meaning that the case is selected on the basis of the dependent variable rather than on the basis of the independent variable – selected because of an effect that has been noted rather than its cause when the nature of the cause is the real object of many ‘how’ or ‘why’ research study questions. 40 x See Geddes, B. Paradigms and Sand Castle: Theory Building and Research Design in Comparative Politics , Ann Arbor, University of Michigan Press, 2005. For example, in a legal context if we wanted to examine rival explanations for how a particular legislative reform, for example the introduction of same sex marriage in England and Wales, has had an impact on community cohesion between different religious and community groups, it may seem, on the face of it, a good idea to select a town like Brighton with a vibrant LGBT community as the case to be studied. After-all, the uptake of same-sex marriage has been very high in Brighton and so it could be considered to be a key site of study. However, Brighton is well known as a LGBT friendly town and people drawn to live there would tend to be very positive about the introduction of same-sex marriage. If the reason for the study was to consider whether tensions have emerged between community and religious groups with different views on marriage, then Brighton would not likely give much opportunity to examine these issues. It was LGBT friendly before the reform and it continues to be. And community and religious groups have worked well together before and after the change in the law. By selecting the case on the basis of the effect of the changed legal landscape, the high numbers of gay and lesbian marriages, we may have selected a case that is atypical or simply a poor unit within which to view the causes or the influences that led to the legislative reform. Researchers are prone to make this mistake when undertaking a deductive study to test the congruence of rival hypotheses in a context where they have insufficient knowledge about the independent variable (the causes) that gave rise to, say, the change in the law. There may be other factors to consider too: in our family mediation study, the researcher may choose to steer away from London as the case study location, if she is interested in ‘typical’ divorces given that London has a much greater than average number of high net worth divorces that include very large sums of money and property portfolios, in addition to many divorces involving non-British couples who married abroad. A solid grasp of the literature can help to alleviate this possibility of incorrect case selection along with detailed consideration of the relevant features of a range of possible case studies prior to final selection. Does selecting a multiple-case study limit the likelihood of such problems, further should the study be at one point in time or a repeated measure at different periods of time? A case study may be designed so as to allow for cross sectional analysis between two or more cases, and further a temporal variation may be introduced into this form of analysis too. Our researcher could study family mediation over time: the same divorces pre, during and post settlement and then later again to examine durability. Single, multiple or cross-sectional case studies often serve different purposes. Multiple case studies are more likely to be used when the causal relationship between an independent and dependent variables are being analysed, so that the interaction of the variables in different environments can be examined comparatively in different contexts (in an experimental protocol one would be able to manipulate the conditions so as to test the variables and thus the different hypotheses). For example, if the study was examining the relationship between violent crime rates and criminal justice sentencing policy to examine whether tougher criminal penalties for violent crime lead to a reduction in violent crime rates, and if tougher criminal penalties for lesser offences led to greater imprisonment levels and greater recidivism including an escalation of violent crime, then a multi-jurisdictional case study may allow for a better assessment of those by permitting different combinations of variables to be compared as against each other. In our family mediation study, the researcher may choose to use London as a crucial case study (with its unusual profile of divorcing spouses with a very wide range of asset values) alongside a more typical rural and a more typical urban location to consider the hypotheses under different conditions. However, it may also be possible to test the hypotheses in a single case study by charting the relationship between the variables over time, with particular attention being paid to the points in time when sentencing policy changed or crime rates dropped or raised, or when family mediation was first introduced, when it became established as a compulsory part of the system. 41 x But the difficulty with multi case studies is that specified conditions or features within individual cases may have more influence on the variables being studied than the variables that one are analysing across the studies. This may lead one to draw erroneous conclusions about causality. This single case study also illustrates the independent variable problem: to what extent are violent crime rates and/or sentencing policy more likely attributable to other societal changes evident at different points in time than each other? Without knowledge of this it is difficult to proceed. Sometimes the extent to which a case study is referred to as single or multiple is a matter of nomenclature, for example, Elliott and Kling’s study 42 x Elliott, M. and Kling, R. ‘Organizational Usability of Digital Libraries: Case Study of Legal Research in Civil and Criminal Courts’ (1997) Vol 48 (11) Journal of the American Society for Information Science 1023-1035. on the organisational usability of digital libraries, a case study of legal research in civil and criminal courts, could be described as a single case study (as in their study) because it addresses digital libraries in one context – legal research in courts – it is also geographically bounded to the Los Angeles County, but data is collected from a number of courts and thus it could be argued to be a multiple case study if each court were considered to be a case. The important distinction, however, is how that data are treated: if the data are pooled and analysed as a single unit then the case study is generally considered to be a single unit or single case study, if the data are analysed comparatively as between the sites of collection then it would generally be considered to be a multiple unit or multiple case study. Where comparisons are being made over time but within a unit then the terminology is often that of a single unit as data is both compared and pooled too. Single case study research is considered to be an excellent vehicle for exploratory and developmental research (as evidenced by the Georgia tax policy study and Dnes analysis of the nature of a particular type of contract – franchise contracts in the UK 43 x See Dnes, A.W. ‘A Case-Study Analysis of Franchise Contracts’ (1993) Vol. 28 Journal of Legal Studies 367-393. or Latour’s Conseil d’Etat study mentioned above 44 x See Latour, B. (2010) above. ), confirmatory research necessitates a design that allows the researcher robustly to test a small number of hypotheses forensically and it may be advisable to consider a multiple case study method to achieve this aim. 45 x Although note that Gerring, 2004, at 347 indicates that a single case study may credibly make causal claims, if, for example, the case has been selected as it is particularly representative of others or it is a critical or crucial case, see further: Eckstein, H. (1975) ‘Case Studies and Theory in Political Science’ in Regarding Politics: Essays on Political Theory, Stability, and Change, Berkeley: University of California Press, 1992). The family mediation case study conducted in London and a more typical urban and rural area is a good example of this, given that the types of divorce cases are likely to be quite different, the context is also different too, and so cost, duration, durability and acrimony could be tested under different conditions to see whether they held true in all conditions or were context or divorce type dependent. Sometimes researchers are inclined to use a multiple case study approach in the expectation that more cases (units) will provide more data and more comparable data that can be used to derive robust findings. However, data collected across multiple case studies is less rather than more likely to be comparable as the conditions within the case study cannot be manipulated or controlled by the researcher and yet environment is expected to have an impact on the data. 46 x Gerring indicates that researchers tend to face the choice between knowing more about less or less about more, 2014, 348. Where more than one case is selected, each subsequent addition should provide a more complete and accurate picture in respect of the research question, instead of attempting to provide greater representativeness (as indicated above, this is not the purpose of case study method). 47 x See Small, 2009, 24-26. If one wishes to make comparisons between case studies it is important to adhere closely to comparative methodology in the definition of the cases to be selected, the analysis of the relevant similarities and differences between those cases, the data to be collected, compared and why, and the likely limitations of the cross unit comparison. 48 x See Gerring, 2004 at 348. For guidance on comparative methodology in a legal context see: Van Hoecke, M. (2004) Epistemology and Methodology of Comparative Law , Portland, Oregon: Hart Publishing. Multiple cases studies are more difficult to accomplish successfully, and it is advisable to work out clearly what each of the case studies will contribute to answering the research question before finalising those to be the subject of the enquiry. The most appropriate design will be dependent on the research question selected and the hypotheses or propositions under investigation through the case study method. 49 x For a detailed discussion see Gerring, 2004 at 343.

D. The Selection of Data Sources, Data Generation and Collection

Strong research design logically links the research question(s) with the hypotheses, with the data generation and collection methods, which in turn should be logically linked with the data analysis methods employed too. By now the researcher is likely to have a very good idea of the types of data that may be relevant to the study (derived from documents, people, extant statistics, other artefacts like images), 50 x Yin sets out six sources of evidence: documents, archival records, interviews, direct observations, participant observation, physical artefacts, Yin, 2014, 105-118, and four principles of data collection: multiple sources of data; creation of a case study database; maintain the chain of evidence; exercise care when using data from electronic sources, at 118-129. having identified the substance, form and purpose of the question, the rival hypotheses that may contribute to answering the question, and the observable implications of those hypotheses and how they may be measured. Our researcher having drawn her broad question as ‘how have the reforms to family mediation affected the way in which divorces are conducted?’ and narrowed down the case study to a geographic location(s) or a type of divorcing couples or divorce context, will have considered the possible data sources as including the spouses, their children, the family mediators and lawyers, court files, mediation and lawyer negotiated agreements, official statistics and more. And so it should be possible to chart how the data collection and data analysis methods all fit together so as to allow the observable implications to be explored, the hypotheses proved, amended, or disproved and a rounded, reliable answer to the research question be achieved. But this design phase may also go beyond the identification and selection of data sources, it requires choices to be made about how data will be collected and measured. 51 x See Yin, 2014, chapter 3 for more information on what one needs to do before data collection begins, and chapter 4 on data collection itself. Each choice that is made, consciously, or unconsciously, will have an effect on the data that is captured and the reliability and validity of that data. And this in turn will affect the outcome of the study. Consequently, the design should be scrutinised to uncover the biases that may become entrenched within it, the study redesigned where necessary to eliminate or limit bias and any remaining biases be taken into account during the later analysis and reporting phases. 52 x See Small, 2009, 12-15. This will require a degree of reflection on data type (strengths and weaknesses in allowing observable implications to be explored), data selection (all data, if not all then what process is being used to select it and how may that skew the findings, known as selection bias); data collection (how is the data being derived, and is it raw data or is it material that requires a judgement to be made, for example how will we measure ‘satisfaction or ‘acrimony’ or ‘durability of an agreement’, how reliable and valid is the data collection instrument 53 x For a discussion of reliability and validity in measurement see Webley, 2010 and further Epstein and King, 2002, 80-99. ) and later too data analysis. It is also worth piloting each data collection exercise with a small number of observations so as to allow defects to be worked out, and experience in the field to allow for redesign too. And then one should collect as much data on each of the possible observable implications as is practicable, including data of different types generated or collected via different methods so as to allow for triangulation in respect of each hypothesis. For example, in Elliott and King’s study they collected data via observation, participant observation and interviews, analysed court documents and legal technology documents; 54 x Elliott and Kling, ibid at 1025. in Dnes’ study the data included franchise agreements and contracts, financial accounts and other financial data, interviews; 55 x Dnes, ibid at 369-370. and in Dadalauri’s study data were derived from primary sources (policy proposals, experts’ recommendations and the minutes of parliamentary sessions) and secondary sources (reports, media briefs, statistical sources) plus from semi-structured interviews with key actors in the policy process. 56 x Ulrikesn and Dadalauri, ibid at 13. Case study method necessitates a measure of flexibility in research design to allow for new knowledge to shape and improve the starting design, but that does not reduce the need for a robust design plan at the inception of the study. The design needs to be scrupulously documented, including challenges faced and amendments made so as to aid others to analyse the validity of the research design and to assess the extent to which the study findings are reliable and robust. 57 x For a discussion see King, Keohane and Verba, 1994, 12. Epstein and King suggest that legal scholars give the same attention to the recording, storage and analysis of data as they would expect of the police and prosecutors when securing the chain of evidence in a criminal case. 58 x Epstein and King, 2002, 24. And it is to data analysis that we now turn.

  • 3. Case Study Method: Use of the Data, Inferences and Finding Meaning

Case study findings are reached through a process of logical valid inferences regardless of whether the data collected and analysed is qualitative, quantitative or both. 59 x For a discussion on this point see King, Keohane and Verba, 1994, chapter 1 ‘The Science in Social Science’. But first the data must usually be described in summary form, before being subjected to further analysis to consider what the data indicates about the various hypotheses and their observable implications in this case context. Subsequently, it is possible to attempt to derive descriptive inferences that suggest what these data on observable instances indicate about non-observables ones, in other words what findings one considers to be transferable to a non-observed context. The analysis may also allow for causal inferences to be made, that explain what effects would be expected to occur if certain conditions were fulfilled in this or another context. This is not dissimilar to data analysis in other types of empirical legal research and therefore it is considered only briefly here. However, case study method is structured with triangulation of data at the fore, allowing the researcher to reach robust findings reached by integrating analysis from multiple data points gathered using different methods. This section will briefly address data analysis, the drawing of inferences and the importance of demonstrating one’s working out, in turn.

A. Data Analysis

The first stage of data analysis is often validly to summarise the data collected in the light of the research question and hypotheses and anticipated observable implications, to summarise the numbers (mean, median, mode, standard deviation, range) and to summarise the text (for example, categorise and consider relationships between categories, or code and consider the frequency or codes). 60 x See Epstein and King, 2002, 25-29 for more information on quantitative data description. Different types of data will often be analysed using different methods or traditions, as illustrated by the way in which legal cases are analysed according to traditions accepted by lawyers, which is distinct from legal analysis of legislation, and policy analysis of policy documents: survey data would be analysed statistically, text based data (interviews, documents etc.) via the mode of analysis selected to interrogate and derive meaning from language, for example via grounded theory method, thematic coding, content analysis, hermeneutics etc. 61 x For a discussion of the different methods of text based data analysis see Yin, 2014, chapter 5 or Webley, 2010. There are a range of general strategies open to the researchers, some of which focus on the theoretical propositions, others aim to develop thick description, others still examine plausible rival explanations. 62 x See Yin, 2014, 136-142. Findings are considered robust where they are evidenced via multiple stands of data and its analysis. The use of multiple data sources to test each hypothesis allows the researcher to build up a thoroughly nuanced picture of the extent to which each hypothesis is sustained, needs to be refined, or rejected. The analysis will be conducted in the light of the research question parameters and also the hypotheses being examined by the research, as exemplified by the discussion in the Georgia tax policy case study. 63 x Ulriksen and Dadalauri, ibid. This process is likely to be iterative, in that data will often be analysed as one phase of data collection is complete and any lessons learned from that may lead to some reframing of the research question, reconsideration of the hypotheses, and amendments to the next phase of data collection yet to begin. The key is that, as with all social science methods, amendments to the question and methods, the analysis of the data and the inferences drawn from the data should be publicly explained and in sufficient detail so that they are replicable by others on the basis of the information provided in the write-up of the study; King, Keohane and Verba remind us that inferences lead to uncertain conclusions – inferences are not proven facts, they are propositions being advanced that are available to be tested by others. 64 x King, Keohane and Verba, 1994, 8. Conclusions remain tentative until replicated validly and consistently. The science and the rules of inference are important in allowing us to judge the validity and reliability of the findings, and these are closely interwoven with the research design and execution of the study.

B. Inferences

Case studies are often considered to be more useful when seeking to derive descriptive rather than causal inferences, as the researcher is not able to manipulate the environment so as to test propositions in such a way as to be sure that causal relationships have satisfactorily been established. Descriptive inferences are ‘the process of using the facts we know to learn about facts we do not know’ , by describing something that has been observed and inferring under what circumstances a similar pattern or occurrence may occur in a carefully defined unobserved situation. 65 x Epstein and King, 2002, 29. For example, if in our hypothetical family mediation study we learned that greater numbers of the divorcing clients who we interviewed/observed before the introduction of the compulsory mediation information and assessment meetings were aware that there was state funding available for family mediation, compared with the divorcing clients who we interviewed/observed after the introduction of these meetings then we may infer that this finding was likely to apply to divorcing clients outside our observed group too (all other things being equal). We do not know for certain that is accurate, as we only have data from our study participants, but our description of our findings has led us to infer something about those outside our observation group. Many doctoral candidates and early career academics baulk at the suggestion that descriptive inference is a valuable mode of analysis, as they associate ‘descriptive’ with the less positive feedback that they may have received in earlier work. But the pursuit of descriptive inferences is not a low-level aspiration in a context in which little is known about the case under scrutiny. Descriptive inferences allow for categorisation of findings which may lead on to further theory building and theory testing, categorisation goes to the heart of analysis development. So our finding above begs the question ‘why is this so?’ and we could either extend our study to answer this sub-question, or leave that for a later study. In some instances the inferences a researcher wishes to draw may be causal ones that infer an effect that will be caused by a set of defined factors occurring together. As an example, in our family mediation study we may wish to examine whether family mediation is more likely to be successful for couples with relatively similar educational backgrounds, medium to high incomes with both spouses in full-time employment, when compared with those who have unequal educational backgrounds, incomes and job-statutes and with low incomes. Where causal inferences are the point of the study, it may be possible to develop these with a well-chosen cross-case multi-case case study design. However, a causal inference first requires the identification of a causal mechanism (the process by which dependent variable A is affected by independent variable B, for example the causal mechanism for a defendant in the UK to be released from pre-trial detention (variable A) is a bail hearing in court (variable B)). 66 x See Epstein and King, 2002, 34-37 for help distinguishing between causal mechanisms and variables and causal effects. Case studies are often a really good means by which these mechanisms, or processes, may be uncovered – known as ‘process tracing’ whereby the researcher charts in detail the relationships between two or more variables and explores these connections to deduce those that are causal and those more likely to be coincidental. 67 x See Gerring, 2004, 348 and further Roberts, C., The Logic of Historical Explanation, Pennsylvania State University Press 1996, 66. Further, a single case study may allow a researcher to interrogate extant explanations that suggest causal implications, in other words to test predictions about what will happen in particular situations (assuming those situations are observable as part of the case study). This is known as ‘pattern-matching’. 68 x See Gerring, 2004, 348 and further Campbell, D. T. [1975] “‘Degrees of Freedom’ and the Case Study” in E. Samuel Overnman (ed) Methodology and Epistemology in Social Science , Chicago, University of Chicago Press: 1988, 380. This is where clarity about the purpose of the study becomes particularly important, as certain conditions will need to have been built into the research design for some analytical techniques. 69 x Yin, 2014, 142-168, provides five different analytical techniques: pattern-matching; explanation building; time-series analysis; logic models; and cross-case synthesis and suggests that after this phase the researcher will likely move on to work through all plausible alternative conclusions to examine whether the most likely conclusion is the only conclusion. The study will need to be designed with a very clear and narrow focus to achieve its aims. As indicated above, case studies may be entirely self-contained studies that provide in-depth knowledge of a single unit of analysis, but more often than not the researcher will wish for those findings to be considered applicable to situations that she/he has not observed. The challenge is to explain which findings are particular to the case study and which elements of the findings are relevant beyond the case study’s boundaries. 70 x Gerring, 2004, 345. It may be difficult to define this with precision, but where there is ambiguity it is safer to over explain and to over report the ambiguity and the possible range of inferences and their limitations rather than to over simplify and obfuscate the difficulty in reaching definitive findings. 71 x See Gerring, 2004, 346. Legal researchers are sometimes criticised for being vague in their explanations of the target of their inferences (to which other unobserved situations do these findings apply, and why?), or worse still their claims in the absence of evidence to prove that their inference is generalizable to a wide variety of situations. 72 x Epstein and King, 2002, 31. This may be a function of lawyers’ professional training as advocates, who in presentation would seek to persuade others to accept their position and who would gloss over inconvenient precedents. But lawyers are also trained to be forensic in seeking out the weaknesses of their arguments as well as those of their opponents and by harnessing these skills in the presentation of their case study findings; they should be able to display the highest standards of scientific reporting. Some of the ambiguities associated with inferences may be avoided if, as Gerring suggests, the scholar specifies clearly which propositions apply to which novel circumstances and exhibit and explain the evidence upon which this contention is based. 73 x Gerring, J. (2001) Social Science Methodology: A Criterial Framework , Cambridge, Cambridge University Press, 90-99. In other words, do the findings relate only to this case, are they intended to relate more broadly to similar cases and if so what marks out other situations as similar? Is similarity about time frame, location, a certain set of markers such types of participants, socio-economic, legal or political factors? And what is one’s evidence in support of this? The burden of proof always rests with the researcher. We shall turn to this in the next sub-section.

C. Reporting Findings

It can be challenging to know how to report one’s findings in an article or thesis, which is unsurprising when one considers that little attention is paid to this aspect of scholarship on doctoral legal programmes in many jurisdictions. 74 x See further Epstein and King, 2002. For assistance in how to report on cases studies and writing up and presentational considerations, including audience and purpose, see Yin, 2014, chapter 6. The rule is that one must provide as much detail as possible, at least enough to allow someone else to be able to replicate the study using only the information provided. Further, there needs to be sufficient discussion of the decisions taken, challenges faced and the consequent limitations of the findings so as to allow others to evaluate the reliability of one’s findings. As King et al. note: report uncertainty, be sceptical about causality, and consider rival hypotheses. 75 x King et al, 1996, 30-33. The process of interrogating one’s own decisions and inferences and reporting on them in full in the article or thesis may allow one to avoid the invidious charge made of many other legal scholars’ work. 76 x Epstein and King, 2002, 6-7. One suggestion is that legal scholars may wish to look for the weakest link in their chain of reasoning, something which lawyers are trained to do in a legal context, and then estimate how certain they are of their findings taking that weakness into account. 77 x Epstein and King, 2002, 50. However, other aspects of our professional training sometimes come into conflict with this approach: a research study is not an act of advocacy, and training as a lawyer may derail the process of empirical enquiry when lawyers unconsciously act for the client in their head and seek to persuade the outside world that their client’s view is a valid one, rather than to act as a legal social-scientist and demonstrate to other social scientists the extent to which their findings are valid, robust, reliable, and subject to limitation. 78 x See further Miller, A. S. ‘The Myth of Objectivity in Legal Research and Writing’ (1969) Vol. 18 Catholic University Law Review 290. For example, a researcher who is more in favour or less in favour of family mediation may inadvertently confirm their stance and steps need to be taken to lessen this risk. This role conflict is particularly problematic given that empirical legal research may lead to legal reform affecting large sections of the population and the findings confidently exhorted in the literature may be used to justify policy changes. 79 x Epstein and King, 2002, 8-10. Further, even if the research were not to be read outside of an academic environment, it is incumbent on all academics to produce research that is reliable and robust, lawyers are quick to critique legal scholarship that had been poorly executed and socio-legal scholarship should be treated no differently.

  • 4. Conclusions: Why (Not to) Use Case Study Method?

Case study method is a powerful and engaging approach to research that has real utility in socio-legal and criminological research even if it has to-date been relatively little used. Our reticence to use it may be explained by the need for a researcher to be sufficiently adept with a range of social science research methods; (non-legal) empirical methods have historically had little treatment within undergraduate legal courses and relatively little attention even at a postgraduate level. 80 x Genn, H., Partington, M, and Wheeler, S. (2006) Law in the Real World: Improving Our Understanding of How Law Works Final Report and Recommendations , London: The Nuffield Foundation. Further, doctoral supervisors may feel inadequate to the task of supervising doctoral students proposing to undertake research through case study method and steer them towards a more standard mixed method approach such as a survey coupled with some interviews, or away from non-legal empirical methods altogether. But with some training, and a high degree of planning it is perfectly possible to undertake a good quality case study in a legal context and we can learn much from them. They are also an ideal means to focus on the particular and yet to draw analytical inferences to similar contexts too, something which lawyers are trained to do throughout their studies and a skill which they can bring to bear on a broader range of data than they otherwise often do. However, case study method is far more than focusing on a single situation, or ‘case’, it is far more than providing a temporal or physical boundary to our research endeavour. It requires us to adopt a structured and reflective approach to research design in many instances, to consider pre-emptively possible explanations (hypotheses) and rival propositions and to engage with theory at an early stage in a study. In a legal context case studies are generally, if not exclusively, more effective when: seeking to make descriptive rather than causal inferences; examining issues in depth rather than broadly and when the researcher is seeking to examine multiple sources of data so as to make comparisons within a case rather than between multiple cases. Further, they are also often more effective for seeking causal mechanisms rather than causal effects; for research that is exploratory rather than confirmatory; and when variations within the case selected are important for the study of the phenomenon. 81 x Gerring, 2004, 352. They are extremely useful when analysing how those involved in law and policy-making, the application of legal rules and procedures perceive these processes, how they react to them and how this influences the effectiveness of those rules, processes and procedures. The research process is an iterative and creative one that engages lawyers’ considerable analytical skills. As such case study method is worthy of a larger presence within the legal academic empirical tool-kit.

1 For insight into the extent to which legal researchers undertake empirical research and the lack of clarity around empirical methods in law see Epstein, L. and King, G. (2002) ‘The Rules of Inference’ Vol. 69 No. 1 The University of Chicago Law Review 1-133 at 3-6, Part I.

2 Yin, R. K. (2014) Case Study Research Design and Methods (5th edn.) Sage Publications, 12-14.

3 See Hamel, J. with Dufour, S. and Fortin, D. (1993) Qualitative Research Methods Volume 2 , Sage Publications, ch 1.

4 See Gerring, J. Case Study Research: Principles and Practices , Cambridge, Cambridge University Press, 2007 at 6. For a further discussion see Gerring, J. ‘What is a case study and what is it good for?’ (2004) Vol. 98 No 2 American Political Science Review 341-354. This looseness in definition in a legal context may perhaps be linked to confusion as between teaching and research case studies; some traditions in legal education employ a teaching method known also as ‘case study method’ which operates quite differently from its research counterpart. For a discussion of the differences between teaching and research case studies see Yin, 2014, 20 and for a discussion of teaching case studies see Ellet, W., (2007) The Case Study Handbook: How to Read, Discuss, and Write Persuasively About Cases , Boston MA, Harvard Business Review Press; Garvin, D. A. (2003) ‘Making the Case: Professional Education for the World of Practice.’ (Sept–Oct) Harvard Magazine 56-65.

5 ‘n’ (number) is used to denote the number of observations in the study, N is used to describe the total number within the population when n denotes the sample observed.

6 For a discussion of the state of empirical research in law see Epstein and King, 2002.

7 See Webley, L. (2010) ‘Part III Doing Empirical Legal Studies Research Chapter 38 - Qualitative Approaches to ELS’ in Cane, P. and Kritzer, H. (eds.) Oxford Handbook of Empirical Legal Studies , Oxford, Oxford University Press.

8 For a discussion about the differences between numerical (quantitative) and non-numerical (qualitative) data see Webley, id; Epstein and King, 2002, at 2-3; King,G., Keohane, R. O., and Verba, S ., Designing Social Inquiry: Scientific Inference in Qualitative Research , Princeton NJ, Princeton University Press, 1994 at 6.

9 Mascini, P., van Oorschot, I., Weenink, D. and Schippers, G., (2016) ‘Understanding judges’ choices of sentence types as interpretative work: An explorative study in a Dutch police court’, (37) (1) Recht der Werkelijkheid 32-49.

10 Yin, 2014: xxxi and further 16-17.

11 Triangulation is the term used to explain that a research question is considered from as many different standpoints as possible, using as many different data types as possible to permit a holistic examination of the question to see which explanations, if any, remain consistent across all data sources.

12 Yin, 2014: 5-6.

13 See Dul, J. and Hak, T. (2008) Case Study Methodology in Business Research , Oxford: Elsevier 8-11, 30-59.

14 Latour, B. (2010) The Making of Law: An Ethnography of the Conseil D’Etat , Cambridge: Polity Press.

15 For a discussion of ethnomethodological aims to study practical life as experienced in context as an end in itself, as experience is subjective and situational, see Small, M.L. ‘‘How many cases do I need?’ On science and the logic of case selection in field-based research’ (2009) Vol. 10 (1) Ethnography 5, 18.

16 For greater insight on this point see Lipset, S. M., Trow, M. and Coleman, J.S. (1956) Union Democracy: The Internal Politics of the International Typographical Union , New York: New York Free Press at 419-420; Yin, 2014, 21. For a discussion of the problems inherent in aping quantitative terminology in qualitative work see, Small, 2009, 10, and at 19 for further reading on the logic of case study selection and further reading on extended case method.

17 Gerring, 2007, 346.

18 Although note that there are some scholars who believe that case study method can include elements of experimental testing, for example, Gerring, J. and McDermott, R. (2007) ‘An Experimental Template for Case Study Research’ Vol. 51 No. 3 American Journal of Political Science 688-701. One such study in law that has been described by some, if not by the researchers themselves, as a case study did include an experimental design within the battery of methods employed see: Moorhead, R., Sherr, A., Webley, L., Rogers, S., Sherr, L., Paterson, A. & Domberger, S. (2001) Quality and Cost: Final Report on the Contracting of Civil Non-Family Advice and Assistance Pilot (Norwich: The Stationery Office).

19 Campbell, D.T. Foreword in Yin, 2014 xviii.

20 Seawright, J. and Gerring, J. (2008) ‘Case Selection Techniques in Case Study Research: A Menu of Qualitative and Quantitative Options’ Vol. 61 No. 2 Political Research Quarterly 294-308.

21 Yin, 2014: chapter 1.

22 For a discussion see: Ryle, G. (1949). The Concept of Mind . London: Hutchinson; Lincoln, Y.S. and Guba, E.G. (1985). Naturalistic Inquiry . Newbury Park, CA: Sage Publications; Holloway, I. (1997). Basic Concepts for Qualitative Research . London: Blackwell Science.

23 Confirmation or interpretive bias of data is something we all have grapple with, as the natural human tendency is to place more weight on evidence that confirms our view than on evidence that contradicts it. Strong research design can assist with counter-balancing this to some extent, including the transformation of any expected finding into a hypothesis that one then seeks to falsify rather than to confirm.

24 See Yin, 2014, chapter 1 for more information on the role of the literature review.

25 For more assistance with legal research questions refer to Epstein, L. (1995) Studying Law and the Courts in Lee Epstein (ed) Contemplating Courts , Cong Q, 1, 3-5.

26 See King, Keohane and Verba, 1994, 15.

27 See Yin, 2014, at 11, and see further Campbell, J.P., Daft, R.L., Hulin, C. L. (1982) What to Study: Generating and Developing Research Questions (Studying Organizations) , Sage Publications, for further thoughts on research questions

28 On process tracing see: Collier, D. ‘Understanding Process Tracing’ Vol. 44 Political Science and Politics 823-830 and George, A. L. and Bennett, A. Case Studies and Theory Development in the Social Sciences , Cambridge, MA, MIT Press, 2005. For an excellent insight into how this has been used in a legal and policy context with reference to changes in Georgia’s tax laws see Ulriksen, M.S, and Dadalauri, N. ‘Single Studies and Theory-testing: The Knots and Dots of the Process-tracing Method’ (2014) International Journal of Social Research Methodology 1- 17.

29 See Blatter, J. and Haverland, M. Designing Case Studies , Basingstoke, Palgrave MacMillan, 2012 at 145 who consider process tracing involves inductive reasoning to build theory and congruence testing involves deductive reasoning to test theories.

30 Epstein and King suggest a range of possible purposes, at 59, including: to explore something that has not previously been studied; to attempt to settle a debate that has been ongoing within the literature; to examine a well-considered question but in a new way; to collect and analyse new data to seek to confirm or refute previous findings; to analyse an existing data set in a new or better way to seek to confirm or refute previous findings or to develop new ones.

31 Peters, B.G. Comparative Politics: Theory and Method , Basingstoke, Palgrave, 1998 at 14.

32 But interestingly, stance, or more accurately epistemology is of less significance to this research method than to many others. Case study method links the research question, research design, analysis and logic of inference to such an extent that is can accommodate a range of epistemological traditions from the realist to relativist/interpretivist. And thus scholars who consider that there are facts independent of our interpretation of them (in essence, hard facts operating in an objective reality) and scholars who consider all ‘facts’ to be local interpretations constructed through our own lenses, are able to operate within a case study framework. Having said that their choice of data sources, and their approach to data generation and analysis may well vary considerably.

33 Ulriksen and Dadalauri, ibid. See further Dadalauri, N. Tax Policy Formation and the Transnationalizationof the Public Policy Arena; A Case Study of Georgia , Aarhus, Politica, 2011) Georgia was selected as a crucial case. The reasoning for this and also for the methods employed in this study are elegantly set out in the article cited above.

34 On the importance of the identification of priors see Beach, D. and Pedersen, R.B., ‘What is process tracing actually tracing? The three variants of process tracing methods and their uses and limitations’ Sept 1-4 2011 The American Political Science Association Annual Meeting , Seattle, WA as cited by Ulriksen and Dadalauri, ibid; and further Gerring, 2007 ibid.

35 For more assistance on extracting observable implications and considering their measurement see Epstein and King, 2002, 70-76.

36 See Gerring, 2004, 342. See further King, Keohane, and Verba, 1994, 76-77.

37 See Yin, 2014, 51.

38 Gerring, 2004, 344. There are often difficulties in establishing the boundaries of the case, the phenomenon under study, and the context that provides a background to the phenomenon but is not itself the object of enquiry. Gerring articulates this as the formal case (the phenomenon) and the informal cases (the penumbra of phenomena which are the context but which will need to be explored in a less formal way so as to distinguish the boundaries of the formal case). The informal units are peripheral, but may have bearing on the formal unit or case, and by considering these informal units at the beginning of the study, and close to its conclusion it will help the researcher to work out what is particular about the unit, and what is transferable to other units.

39 See Yin, 2014, chapter 2.

40 See Geddes, B. Paradigms and Sand Castle: Theory Building and Research Design in Comparative Politics , Ann Arbor, University of Michigan Press, 2005.

41 But the difficulty with multi case studies is that specified conditions or features within individual cases may have more influence on the variables being studied than the variables that one are analysing across the studies. This may lead one to draw erroneous conclusions about causality. This single case study also illustrates the independent variable problem: to what extent are violent crime rates and/or sentencing policy more likely attributable to other societal changes evident at different points in time than each other? Without knowledge of this it is difficult to proceed.

42 Elliott, M. and Kling, R. ‘Organizational Usability of Digital Libraries: Case Study of Legal Research in Civil and Criminal Courts’ (1997) Vol 48 (11) Journal of the American Society for Information Science 1023-1035.

43 See Dnes, A.W. ‘A Case-Study Analysis of Franchise Contracts’ (1993) Vol. 28 Journal of Legal Studies 367-393.

44 See Latour, B. (2010) above.

45 Although note that Gerring, 2004, at 347 indicates that a single case study may credibly make causal claims, if, for example, the case has been selected as it is particularly representative of others or it is a critical or crucial case, see further: Eckstein, H. (1975) ‘Case Studies and Theory in Political Science’ in Regarding Politics: Essays on Political Theory, Stability, and Change, Berkeley: University of California Press, 1992).

46 Gerring indicates that researchers tend to face the choice between knowing more about less or less about more, 2014, 348.

47 See Small, 2009, 24-26.

48 See Gerring, 2004 at 348. For guidance on comparative methodology in a legal context see: Van Hoecke, M. (2004) Epistemology and Methodology of Comparative Law , Portland, Oregon: Hart Publishing.

49 For a detailed discussion see Gerring, 2004 at 343.

50 Yin sets out six sources of evidence: documents, archival records, interviews, direct observations, participant observation, physical artefacts, Yin, 2014, 105-118, and four principles of data collection: multiple sources of data; creation of a case study database; maintain the chain of evidence; exercise care when using data from electronic sources, at 118-129.

51 See Yin, 2014, chapter 3 for more information on what one needs to do before data collection begins, and chapter 4 on data collection itself.

52 See Small, 2009, 12-15.

53 For a discussion of reliability and validity in measurement see Webley, 2010 and further Epstein and King, 2002, 80-99.

54 Elliott and Kling, ibid at 1025.

55 Dnes, ibid at 369-370.

56 Ulrikesn and Dadalauri, ibid at 13.

57 For a discussion see King, Keohane and Verba, 1994, 12.

58 Epstein and King, 2002, 24.

59 For a discussion on this point see King, Keohane and Verba, 1994, chapter 1 ‘The Science in Social Science’.

60 See Epstein and King, 2002, 25-29 for more information on quantitative data description.

61 For a discussion of the different methods of text based data analysis see Yin, 2014, chapter 5 or Webley, 2010.

62 See Yin, 2014, 136-142.

63 Ulriksen and Dadalauri, ibid.

64 King, Keohane and Verba, 1994, 8.

65 Epstein and King, 2002, 29.

66 See Epstein and King, 2002, 34-37 for help distinguishing between causal mechanisms and variables and causal effects.

67 See Gerring, 2004, 348 and further Roberts, C., The Logic of Historical Explanation, Pennsylvania State University Press 1996, 66.

68 See Gerring, 2004, 348 and further Campbell, D. T. [1975] “‘Degrees of Freedom’ and the Case Study” in E. Samuel Overnman (ed) Methodology and Epistemology in Social Science , Chicago, University of Chicago Press: 1988, 380.

69 Yin, 2014, 142-168, provides five different analytical techniques: pattern-matching; explanation building; time-series analysis; logic models; and cross-case synthesis and suggests that after this phase the researcher will likely move on to work through all plausible alternative conclusions to examine whether the most likely conclusion is the only conclusion.

70 Gerring, 2004, 345.

71 See Gerring, 2004, 346.

72 Epstein and King, 2002, 31.

73 Gerring, J. (2001) Social Science Methodology: A Criterial Framework , Cambridge, Cambridge University Press, 90-99.

74 See further Epstein and King, 2002. For assistance in how to report on cases studies and writing up and presentational considerations, including audience and purpose, see Yin, 2014, chapter 6.

75 King et al, 1996, 30-33.

76 Epstein and King, 2002, 6-7.

77 Epstein and King, 2002, 50.

78 See further Miller, A. S. ‘The Myth of Objectivity in Legal Research and Writing’ (1969) Vol. 18 Catholic University Law Review 290.

79 Epstein and King, 2002, 8-10.

80 Genn, H., Partington, M, and Wheeler, S. (2006) Law in the Real World: Improving Our Understanding of How Law Works Final Report and Recommendations , London: The Nuffield Foundation.

81 Gerring, 2004, 352.

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Making the Case for Case Studies in Empirical Legal Research

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making the case for case studies in empirical legal research

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Case study research.

Last update: April 07, 2022

A legal scholar who uses the term ‘case’ will probably first think of a legal case. From a socio-legal perspective, the understanding of this concept is, however, slightly different. Case study research is a methodology that is useful to study ‘how’ or ‘why’ questions in real-life.

Over the last forty years, researchers from sociology, anthropology and various other disciplines have developed the case study research methodology dramatically. This can be confusing for legal researchers. Luckily, both Webley and Argyrou have written an article on case study research specifically for legal researchers. Webley writes, for example, that this methodology allows us to know ‘how laws are understood, and how and why they are applied and misapplied, subverted, complied with or rejected’. Both authors rely upon the realist tradition of case study research as theorised by Yin. Yin defines the scope of a case study as: “An empirical inquiry that investigates a contemporary phenomenon in depth and within its real-life context, when the boundaries between phenomenon and context are not clearly evident”.

Before you start collecting data for your case study, it is important to think about the theory and the concepts that you will want to use, as this will very much determine what your case will be about and will help you in the analysis of your data. You should then decide which methods of data collection and sources you will consult to generate a rich spectrum of data. Observations, legal guidelines, press articles… can be useful. Legal case study researchers usually also rely extensively on interviews. The meaning that interview participants give to their experiences with legal systems can uncover the influence of socio-economic factors on the law, legal processes and legal institutions.

Case studies strive for generalisable theories that go beyond the setting for the specific case that has been studied. The in-depth understanding that we gain from one case, might help to also say something about other cases in other contexts but with similar dynamics at stake. However, you need to be careful to not generalize your findings across populations or universes.

Argyrou, A. (2017) Making the Case for Case Studies in Empirical Legal Research. Utrecht Law Review, Vol.13 (3), pp.95-113

Flyvbjerg, B. (2006.) Five Misunderstandings about Case-Study Research, Qualitative Inquiry 12( 2), 219-245.

Gerring, J. (2004) What Is a Case Study and What Is It Good for? American Political Science Review 98( 2), 341-354.

Simons, H. (2014) Case Study Research: In-Depth Understanding in Context. In P. Leavy (Ed.), The Oxford Handbook of Qualitative Research, Oxford University Press.

Webley, L. (2016) Stumbling Blocks in Empirical Legal Research: Case Study Research. Law and Method, 10.

Yin, R. K. (2009). Case study research: Design and methods (4th Ed.). Thousand Oaks, CA: Sage.

Harvard Empirical Legal Studies Series

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The  Harvard Empirical Legal Studies (HELS) Series  explores a range of empirical methods, both qualitative and quantitative, and their application in legal scholarship in different areas of the law. It is a platform for engaging with current empirical research, hearing from leading scholars working in a variety of fields, and developing ideas and empirical projects.

HELS is open to all students and scholars with an interest in empirical research. No prior background in empirical legal research is necessary. If you would like to join HELS and receive information about our sessions, please subscribe to our mailing list by completing the HELS mailing list form .

If you have any questions, do not hesitate to contact the current HELS coordinator,  Tiran Bajgiran.

All times are provided in U.S. Eastern Time (UTC/GMT-0400).

Spring 2024 Sessions

Constitutional socialism in empire.

Aziz Rana, Wellesley

Monday, Mar. 25, 12:15 PM

Historical Approaches to Neoliberal Legality

Quinn Slobodian, Wellesley

Thursday, Mar. 28, 12:15 PM

Fall 2023 Sessions

On critical quantitative methods.

Hendrik Theine , WU, Vienna/Univ. of Pennsylvania Monday, Nov. 6, 12:30 PM Lewis 202

Economic inequality is a profound challenge in the United States. Both income and wealth inequality increased remarkably since the 1980s. This growing concentration of economic inequality creates real-world political and societal problems which are increasingly reflected by social science scholarship. Among those detriments is for instance the increasing economic and political power of the super-rich. The research at hand takes a new radical look at media discourses of economic inequality over four decades in various elite US newspapers by way of quantitative critical discourse analysis. It shows that up until recently, there was minimal media coverage of economic inequality, but interest has steadily increased since then. Initially, the focus was primarily on income inequality, but over time, it has expanded to encompass broader issues of inequality. Notably, the discourse on economic inequality is significantly influenced by party politics and elections. The study also highlights certain limitations in the discourse. Critiques of inequality tend to remain at a general level, discussing concepts like capitalist and racial inequality. There is relatively less focus on policy-related discussions, such as tax reform, or discussions centered around specific actors, like the wealthy and their charitable contributions.

Spring 2023 Sessions

How to conduct qualitative empirical legal scholarship.

Jessica Silbey , Professor of Law at Boston University Yanakakis Faculty Research Scholar

Friday, March 31, 12:30 PM WCC 3034

This session explores the benefits and some limitations of qualitative research methods to study intellectual property law. It compares quantitative research methods and the economic analysis of law in the same field as other kinds of empirical inquiry that are helpful in collaboration but limited in isolation. Creativity and innovation, the practices intellectual property law purports to regulate, are not amenable to quantification without identifying qualitative variables. The lessons from this session apply across fields of legal research.

Fall 2022 Sessions

How to read quantitative empirical legal scholarship.

Holger Spamann , Lawrence R. Grove Professor of Law

Friday, September 13, 12:30 PM WCC 3007

As legal scholars, what tools do we need to read critically and engage productively with quantitative empirical scholarship? In the first session of the 2022-2023 Harvard Empirical Legal Studies Series, Harvard Law School Professor Holger Spamann will compare and discuss different quantitative studies. This session will be a first approximation to be able to understand and eventually produce empirical legal scholarship. All students and scholars interested in empirical research are welcome and encouraged to attend.

How do People Learn from Not Being Caught? An Experimental Investigation of a “Non-Occurrence Bias”

Tom Zur , John M. Olin Fellow and SJD candidate, HLS

Friday, November 4, 2:00 PM WCC 3007

The law and economics literature on specific deterrence has long theorized that offenders rationally learn from being caught and sanctioned. This paper presents evidence from a randomized controlled trial showing that offenders learn differently when not being caught as compared to being caught, which we call a “non-occurrence bias.” This implies that the socially optimal level of investment in law enforcement should be lower than stipulated by rational choice theory, even on grounds of deterrence alone.

Empirical Legal Research: Using Data and Methodology to Craft a Research Agenda

Florencia Marotta-Wurgler , NYU Boxer Family Professor of Law Faculty Director, NYU Law in Buenos Aires

Monday, November 14, 12:30 PM Lewis 202

Using a series of examples, this discussion will focus on strategies to conduct empirical legal research and develop a robust research agenda. Topics will include creating a data set and leveraging to answer unexplored questions, developing meaningful methodologies to address legal questions, building on existing work to develop a robust research agenda, and engaging the process of automation and scaling up to develop large scale data sets using machine learning approaches. 

Resources for Empirical Research

  • HLS Library Empirical Research Service
  • Harvard Institute for Quantitative Social Research (IQSS)
  • Harvard Committee on the Use of Human Subjects
  • Qualtrics Harvard
  • Harvard Kennedy School Behavioral Insights Group

Past HELS Sessions

Holger Spamann (Lawrence R. Grove Professor of Law) – How to Read Quantitative Empirical Legal Scholarship?

Katerina Linos (Professor of Law at UC Berkeley School of Law) – Qualitative Methods for Law Review Writing

Aziza Ahmed (Professor of Law at UC Irvine School of Law) – Risk and Rage: How Feminists Transformed the Law and Science of AIDS

Amy Kapczynski and Yochai Benkler –(Professor of Law at Yale; Professor of Law at Harvard) Law & Political Economy and the Question of Method

Jessica Silbey – (Boston University School of Law) Ethnography in Legal Scholarship

Roberto Tallarita – (Lecturer on Law, and Associate Director of the Program on Corporate Governance at Harvard) The Limits of Portfolio Primacy

Susan S. Silbey – (Leon and Anne Goldberg Professor of Humanities, Sociology and Anthropology at MIT) HELS with Susan Silbey: Analyzing Ethnographic Data and Producting New Theory

Cass R. Sunstein  (University Professor at Harvard) – Optimal Sludge? The Price of Program Integrity

Scott L. Cummings  (Professor of Legal Ethics and Professor of Law at UCLA School of Law) – The Making of Public Interest Lawyers

Elliot Ash  (Assistant Professor of Law, Economics, and Data Science at ETH Zürich) – Gender Attitudes in the Judiciary: Evidence from U.S. Circuit Courts

Kathleen Thelen  (Ford Professor of Political Science at MIT) – Employer Organization in the United States: Historical Legacies and the Long Shadow of the American Courts

Omer Kimhi  (Associate Professor at Haifa University Law School) – Caught In a Circle of Debt – Consumer Bankruptcy Discharge and Its Aftereffects

Suresh Naidu  (Professor in Economics and International and Public Affairs, Columbia School of International and Public Affairs) – Ideas Have Consequences: The Impact of Law and Economics on American Justice

Vardit Ravitsky  (Full Professor at the Bioethics Program, School of Public Health, University of Montreal) – Empirical Bioethics: The Example of Research on Prenatal Testing

Johnnie Lotesta  (Postdoctoral Democracy Fellow at the Ash Center for Democratic Governance and Innovation at the Harvard Kennedy School) – Opinion Crafting and the Making of U.S. Labor Law in the States

David Hagmann  (Harvard Kennedy School) – The Agent-Selection Dilemma in Distributive Bargaining

Cass R. Sunstein  (Harvard Law School) – Rear Visibility and Some Problems for Economic Analysis (with Particular Reference to Experience Goods)

Talia Gillis  (Ph.D. Candidate and S.J.D. Candidate, Harvard Business School and Graduate School of Arts and Sciences and Harvard Law School) – False Dreams of Algorithmic Fairness: The Case of Credit Pricing

Tzachi Raz (Ph.D. Candidate in Economics at Harvard University) – There’s No Such Thing as Free Land: The Homestead Act and Economic Development

Crystal Yang (Harvard Law School) – Fear and the Safety Net: Evidence from Secure Communities

Adaner Usmani (Harvard Sociology) – The Origins of Mass Incarceration

Jim Greiner (Harvard Law School) – Randomized Control Trials in the Legal Profession

Talia Shiff  (Postdoctoral Fellow, Weatherhead Center for International Affairs and Department of Sociology, Harvard University) – Legal Standards and Moral Worth in Frontline Decision-Making: Evaluations of Victimization in US Asylum Determinations

Francesca Gino (Harvard Business School) – Rebel Talent

Joscha Legewie (Department of Sociology, Harvard University) – The Effects of Policing on Educational Outcomes and Health of Minority Youth

Ryan D. Enos (Department of Government, Harvard University) – The Space Between Us: Social Geography and Politics

Katerina Linos (Berkeley Law, University of California) – How Technology Transforms Refugee Law

Roie Hauser (Visiting Researcher at the Program on Corporate Governance, Harvard Law School) – Term Length and the Role of Independent Directors in Acquisitions

Anina Schwarzenbach (Fellow, National Security Program, the Belfer Center for Science and International Affairs, Harvard Kennedy School) – A Challenge to Legitimacy: Effects of Stop-and-Search Police Contacts on Young People’s Relations with the Police

Cass R. Sunstein (Harvard Law School) – Willingness to Pay to Use Facebook, Twitter, Youtube, Instagram, Snapchat, and More: A National Survey

Netta Barak-Corren (Hebrew University of Jerusalem) – The War Within

James Greiner & Holger Spamann (Harvard Law School) – Panel: Why​ ​Does​ ​the​ ​Legal​ ​Profession​ ​Resist​ ​Rigorous​ ​Empiricism?

Mila Versteeg (University of Virginia School of Law) (with Adam Chilton) – Do Constitutional Rights Make a Difference?

Susan S. Silbey (MIT Department of Anthropology) (with Patricia Ewick) – The Common Place of Law

Holger Spamann (Harvard Law School) – Empirical Legal Studies: What They Are and How NOT to Do Them

Arevik Avedian (Harvard Law School) – How to Read an Empirical Paper in Law

James Greiner (Harvard Law School) – Randomized Experiments in the Law

Robert MacCoun (Stanford Law School) – Coping with Rapidly Changing Standards and Practices in the Empirical Sciences (including ELS)

Mario Small (Harvard Department of Sociology) – Qualitative Research in the Big Data Era

Adam Chilton (University of Chicago Law School) – Trade Openness and Antitrust Law

Jennifer Lerner (Harvard Kennedy School and Department of Psychology) – Anger in Legal Decision Making

Sarah Dryden-Peterson (Harvard Graduate School of Education) – Respect, Reciprocity, and Relationships in Interview-Based Research

Charles Wang (Harvard Business School) – Natural Experiments and Court Rulings

Guhan Subramanian (Harvard Law School) – Determining Fair Value

James Greiner (Harvard Law School) – Randomized Control Trials and the Impact of Legal Aid

Maya Sen (Harvard Kennedy School) – The Political Ideologies of Law Clerks and their Judges

Daria Roithmayr (University of Southern California Law School) – The Dynamics of Police Violence

Crystal Yang (Harvard Law School) – Empiricism in the Service of Criminal Law and Theory

Oren Bar-Gill (Harvard Law School) – Is Empirical Legal Studies Changing Law and Economics?

Elizabeth Linos (Harvard Kennedy School; VP, Head of Research and Evaluation, North America, Behavioral Insights Team) – Behavioral Law and Economics in Action: BIT, BIG, and the policymaking of choice architecture

Meira Levinson (Harvard School of Education) – Justice in Schools: Qualitative Sociological Research and Normative Ethics in Schools

Howell Jackson (HLS) – Cost-Benefit Analysis

Michael Heise (Cornell Law School) – Quantitative Research in Law: An Introductory Workshop

Susan Silbey (MIT) – Interviews: An Introductory Workshop

Kevin Quinn (UC Berkeley) – Quantifying Judicial Decisions

Holger Spamman (Harvard Law School) – Comparative Empirical Research

James Greiner (Harvard Law School) – Randomized Controlled Trials in the Research of Legal Problems

Michael Heise (Cornell Law School) – Quantitative Research in Law

James Greiner (Harvard Law School) – A Typology of Empirical Methods in Law

David Wilkins (Harvard Law School) – Mixed Methods Work and the Legal Profession

Tom Tyler (Yale Law School) – Fairness and Policing

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Empirical Legal Research: Getting Started

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Research Guides

If you are not familiar with the topic, you may find that a research guide or tutorial is a useful tool to assist you with your research. We hope that you will find this guide helpful.

You should review the date the research guide was last updated. Using a research guides updated in the last year will help ensure you are relying on current information. However, if you are conducting historical research, an older guide may be helpful.

Some of the most popular guides include:

1)  Georgetown Law Library, Statistics & Empirical Legal Studies Research Guide , (Updated June 2010)

2)  Chicago-Kent School of Law,   Empirical and Non-Legal Research Resources Guide , (Updated August 10, 2010)

3)  While not specifically providing a research guide, the Empirical Research Support site   of Goodson Law Library at Duke University provides links to training tools, data-sets, and other information to assist empirical legal researchers.

Current Awareness and News - Empirical Legal Studies Blog

The ELS (Empirical Legal Studies) Blog is one of the premier sources of news and comment about empirical legal research, publications and training. Below is a feed from the blog.

Empirical Research in Law, Empirical Legal Studies or Scholarship? Why is empirical research in the law important?

While there has been some debate regarding the proper name for and definition of empirical research in law, for purposes of introduction, this guide accepts the explanation put forth by John Baldwin and Gwynn Davis in Chapter 39 of the Oxford Handbook of Legal Studies: 

"...empirical research in law involves the study, through direct methods rather than secondary sources, of the institutions rules, procedures, and personnel of the law, with a view to understanding how they operate and what effects they have.  It is not a synonym for 'statistical' or 'factual', and its intellectual depth and significance are not determined by the empirical label ... 

Pauline Kim, University of Washington School of Law, put it similarly: 

Empirical legal scholarship involves methods developed in the social sciences and is different from traditional legal research in that it "systematically explores facts about the operation of the law and legal institutions."

Empirical research is important because "there are important questions in the law and about legal institutions that can’t be answered" through the traditional textual analysis methods of research.   For example, if a researcher is interested in researching the impact of selecting a particular rule of law on the decision making of individuals and businesses. Textual analysis would not shed light on a topic. However, we can certainly understand how an argument for a judgment accepting a particular rule of law would be strengthened by including evidence on the likely effect on "actors in the real world."

Pauline Kim, Do We Have the Numbers? Empirical Research in Law – International Law as a Case Study, Program at the American Association of Law Libraries Annual Meeting (July 10, 2006)

Funding for Empirical Legal Research

Conducting empirical research often involves significant costs, including the costs associated with collection or accessing data. As a result, empirical researchers may need to seek funds from grants awarding organizations and other funding sources. Academic researchers may find the institutional Office of Research can provide assistance in locating information about grant awarding institutions as well as assistance in preparing grant proposals. If the services of a Research Office are not available, some of the resources below will assist the researcher in seeking funding.

  • American Bar Association Section of Litigation Research Fund The Litigation Research Fund was established by the section to support original and practical scholarly work that significantly advances the understanding of civil litigation in the United States. Projects addressing issues of low-income individuals' access to civil justice are of particular interest to the section and legal academics as well as social scientists and scholars from other disciplines are invited to apply for funding of their research.
  • Grants.gov All discretionary grants offered by federal grant-making agencies can be found on Grants.gov. Federal grant applications can also be submitted online via this site.

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Insitutional Review Boards

Empirical researchers are often required, before they begin the research, to obtain approval of the research from an Institutional Review Board (IRB). They may also be required to submit periodic progress reports to the IRB. Academic researchers may find that the Office of Research can provide useful information or guide the researcher through the IRB Process. 

  • Code of Federal Regulations Title 45 Part 46 Address the Protection of Human Subjects and the Requirements for IRB Review.
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Making the Case for Case Studies in Empirical Legal Research

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Academic year: 2022

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This article is published in a peer-reviewed section of the Utrecht Law Review

Aikaterini Argyrou*

1. Introduction

The article aims to discuss and demonstrate the use of the case study qualitative method in support of legal research. The use of the case study qualitative method is discussed in the context of an interdisciplinary research project, which examines legal forms and stakeholder participation in the governance of social enterprises. In particular, the interdisciplinary research project looks at the examination of national legislation and legal forms included in various legal systems, which are tailor-made for social enterprises.

The underlying idea is that the legal research per se cannot provide answers regarding the function of participatory governance in social enterprises.

To support the legal research I attempted to develop a comprehensive baseline inductive theory through qualitative case studies to further explain the participatory function of governance in social enterprises.

The development of qualitative case studies and the use of empirical techniques are used to demonstrate how, in practice, implementation of national legal provisions influences stakeholders and decision-makers to participate in the decision-making processes of social enterprises. Although this type of inquiry cannot be answered within a framework that is only underpinned by legal positivism, the use of the case study method in qualitative research is nevertheless much disputed and underused. This being so, the use of the case study method should be considered prior to its application. For that reason, I have provided a theoretical discussion in this article, which presents various arguments for and against the use of the case study method in qualitative research. Several of these arguments are addressed in this article and reflected on in the context of the empirical legal research project in which I am involved.

Accordingly, in this article, the use of a non-legal method, whose application originates predominantly from the social sciences, i.e. the case study qualitative method, is explained. Section 1 provides a theoretical discussion concerning the content and the foundations of empirical legal research as a form of interdisciplinary research. Section 2 discusses the scholarly discourse relating to the perceived opportunities and limitations of the case study method in qualitative research. This section also illustrates several issues of validity and rigour, which are disputed in qualitative research in relation to the use of the case study qualitative method.

Section 3 discusses the use of the case study qualitative method in an empirical legal research project which I conducted. It provides a thorough explanation of the techniques which I applied to mitigate the perceived limitations and to advance the perceived opportunities of the case study method in its execution. Finally, Section 4 contains conclusions.

* Aikaterini Argyrou ([email protected]) is a PhD student at Utrecht University and a Visiting Fellow at Nyenrode Business University (the Netherlands).

1.1 Interdisciplinary research and its use in legal scholarship

Interdisciplinary research, as the term suggests, is a type of research that involves two or more research disciplines. 1 A normative discipline, such as law, is combined with an empirical discipline that forms part of the social sciences, namely organisational and entrepreneurship studies, sociology and/or psychology.

Although, according to Taekema & Van Klink, disciplines differ in their understanding of concepts, methods used, object of examination, problem awareness (when different disciplines perceive different problems) and research goals, legal scholars may draw inspiration from other disciplines in a way that is auxiliary to their research. 2 Inspiration from the social sciences in legal research may explain how the legal system works in reality, capturing what is called the ‘law’s truth’ or the ‘essence of law’, such as the inner motives and meanings of legal phenomena. 3 In other words, the auxiliary use of methods and inspiration drawn from the social sciences can be used when the response to the problem defined in the research question ‘is not predicated solely on the concrete body of legal rules’ and does not concern a hermeneutical quest for a legal meaning and/or interpretation. 4 Accordingly, the response cannot be offered with the exclusive use of legal and doctrinal research methods.

Such a situation may require the application of an empirical legal research approach. This approach encourages the outcomes from the study of materials, e.g. facts and data, and the use of techniques that stem from the social sciences, which may serve as contributions to the legal arguments presented by the legal scholar, subject to validity standards from both disciplines. 5 It involves the use of empirical methods although not for the substantive analysis of law. This task is obviously assigned to judges and to legal practitioners through the interpretation and application of the existing body of knowledge of law and of legal practice. Empirical techniques, tools and methods may be used in legal research to reveal multiple legal discourses and/or ‘legal realities’ through internally realised operations and processes. In other words, to obtain factual data which reveal, ‘the limits of institutional action’, ‘practical insider attitudes’ and

‘conceptions and experiences of law and legal institutions’. 6 In pursuit of understanding more effectively the two components of empirical legal research, the following section discusses in detail what may constitute in theory an empirical legal inquiry in an interdisciplinary context.

1.2 The empirical legal inquiry in an interdisciplinary context

Empirical legal research comprises an empirical part and a legal part. Legal inquiry requires not only the application of classical legal research methods, i.e. the doctrinal method, but also a combination of black letter law research and non-doctrinal research. 7 In principle, doctrinal research assigns to the legal scholar and legal practitioner the task of developing an understanding of an authoritative text so as to be able to

1 S. Taekema & B. van Klink, ‘On the border: Limits and Possibilities of Interdisciplinary Research’, in B. van Klink & S. Taekema (eds.), Law and Method, Interdisciplinary Research into Law (2011), p. 7. In academic scholarship, the terms to characterise research as

‘multidisciplinary’, ‘cross-disciplinary’, ‘interdisciplinary’ and ‘transdisciplinary’ have been traditionally used to describe the level of interaction and integration of research and thus knowledge from different disciplines. Such knowledge differs from disciplinary knowledge, which is solely generated in the boundaries of the various widely accepted academic disciplines. Various scholarly arguments have been used to demonstrate how the foregoing terms differ or even constitute a continuum indicating a higher or lower degree of integration and synthesis in research and knowledge. Accordingly, ‘multidisciplinary’ refers to integrated research, which does not cross the disciplinary boundaries; ‘cross-disciplinary’ refers to integrated research which uses in one discipline the viewpoint of another discipline; ‘interdisciplinary’ refers to research which crosses disciplinary boundaries in order to create new integrated knowledge;

and ‘transdisciplinary’ refers to research which further integrates non-academic knowledge. Other scholars, use the generic term of

‘interdisciplinary’ to develop taxonomies and classifications concerning different levels of integration of ‘basic’ or more ‘advanced’

interdisciplinary research. M.M. Siems, ‘The taxonomy of interdisciplinary legal research: finding the way out of the desert’, (2009) 7 Journal of Commonwealth Law and Legal Education, no. 1, p. 6. See G. Tress et al., ‘Clarifying Integrative Research Concepts in Landscape Ecology’, (2005) 20 Landscape Ecology, no. 4, pp. 485-488.

2 See Taekema & Van Klink, supra note 1, pp. 8-9.

3 R. Banakar, ‘Reflections on the Methodological Issues of the Sociology of Law’, (2000) 27 Journal of Law and Society, no. 2, p. 274.

4 Ibid., pp. 282-283.

5 See Taekema & Van Klink, supra note 1, p. 11. R. Banakar, Merging Law and Sociology: beyond the dichotomies in socio-legal research (2003), pp. 47-49.

6 R. Banakar, ‘On the Paradox of Contextualisation’, in R. Banakar (ed.), Normativity in Legal Sociology: Methodological Reflections on Law and Regulation in Late Modernity (2014), p. 91. See Banakar (2000), supra note 3, p. 284.

7 I. Dobinson & F. Johns, ‘Qualitative Legal Research’, in W. Chui & M. McConville (eds.), Research Methods For Law (2007), pp. 18-19.

use it properly in a case or in a legal argument. 8 The character of legal doctrinal research is argumentative, and it aims at the formation of a legal argument based on legal reasoning. 9

However, legal research can generally be perceived to comprise doctrinal research and methods as well as non-doctrinal legal research. Non-doctrinal legal research is concerned with a complementary problem, policy and a law reform-based approach. 10 The legal scholar, other than contemplating the normative content of the body of law, is in a position to raise problems that are currently affecting the law. 11 An example might be to indicate flaws in the underlying policy (in terms of effectiveness and implementation) and then suggesting necessary changes to the law (law reforms). Such an assignment often requires the consideration of the social references underlying the law, as well as the effect and the impact of the current law on certain social constructs in practice. Thus, in epistemological terms, a space is created for the use of empirical legal research. 12

The empirical part differs in principle from the typical legal part that was described in the previous paragraph. Empirical research in the social sciences deals with the collection of facts concerning the world and the measurement and careful observation of the reality. 13 Empirical legal research differs from doctrinal research developed in the normative discipline of law (i.e. ‘law on paper’) because it seeks to capture real-life evidence (law in practice), regarding the world based on either the researcher’s and/or other people’s observations or experiences, i.e. through real-life data. This data may be based on legislation or case law as part of the real world. 14 Thus, in empirical legal research, both approaches (legal and non- legal) can be perceived as complementary to the extent that empirical (legal) research will show the external perspective of law while the doctrinal research will show the internal aspect of law. 15

The use of empirical (non-doctrinal) legal research is an auxiliary and complementary method in legal research. Its application requires the explanation and translation into legal terms of findings that stem from observations, experiences and data regarding the functioning and the effects of law. This has to be done primarily using valid and rigorous justifications. 16 The translational issues raised by the interdisciplinary approach are outlined in the so-called problem: the ‘fact-value’ separation or the ‘gap between facts and values’, which reflects the legal researcher’s problem of translating the empirical evidence in a normative way that accommodates legal argumentation and scholarship. 17 The problem has been addressed by many scholars, who have tried to develop tools for legal researchers to assist them in ‘leaping from valid (and relevant) empirical evidence to formulating normative statements’. 18 These tools comprise ‘due process criteria’ for validating empirical research, the use of various factors for weighing conflicting arguments in terms of ‘completeness’, ‘relevance’ and ‘consonance’, and tools for the use of empirical legal research in such a way that it shows the effectiveness of law as an instrument (one of different possible solutions) to achieve a set of policy goals. 19 Other scholars, on the contrary, claim that empirical legal research already has

8 S. Taekema, ‘Relative Autonomy: A characterisation of the Discipline of Law’, in B. van Klink & S. Taekema (eds.), Law and Method, Interdisciplinary Research into Law (2011), pp. 46-47.

9 Ibid., p. 47.

10 See Dobinson & Johns, supra note 7, p. 19.

11 Ibid., p. 20.

12 L. Epstein & G. King, ‘The Rules of Inference’, (2002) 69 University of Chicago Law Review, no. 1, pp. 2-3. L. Epstein & A.D. Martin, An Introduction to Empirical Legal Research (2014).

13 J.W. Creswell, Qualitative Inquiry and Research Design: Choosing Among Five Approaches (2013), pp. 145-146.

14 See Epstein & King, supra note 12, p. 3.

15 K. van Aeken, ‘Law, Sociology and Anthropology: A Liaison Beginning Endlessly’, in B. Van Klink & S. Taekema (eds.), Law and Method, Interdisciplinary Research into Law (2011), p. 81. See S.J. Shapiro, ‘What is the Internal Point of View?’, (2006) 75 Fordham Law Review, no. 3, p. 1159 who refers to Hart’s theory concerning the internal and external aspect of law: ‘[F]or it is possible to be concerned with the rules, either merely as an observer who does not himself accept them, or as a member of the group which accepts and uses them as guides to conduct. We may call these respectively the ‘external’ and the ‘internal points of view.’ H.L.A. Hart, The Concept of Law (1994) p. 89.

16 See Taekema & Van Klink, supra note 1, pp. 11, 25-26. In this respect, Chynoweth mentions: ‘The normative character of the law also means that the validity of doctrinal research must inevitably rest upon developing a consensus within the scholastic community, rather than on an appeal to any external reality’ in P. Chynoweth, ‘Legal Research’, in A. Knight & L. Ruddock (eds.), Advanced Research Methods in the Built Environment (2008), p. 30.

17 See Taekema & Van Klink, supra note 1, p. 17. F.L. Leeuw, ‘Empirical Legal Research: The Gap between Facts and Values and Legal Academic Training’, (2015) 11 Utrecht Law Review, no. 2, <http://doi.org/10.18352/ulr.315>, p. 22. I. Giesen, ‘The Use and Incorporation of Extralegal Insights in Legal Reasoning’, (2015) 11 Utrecht Law Review, no. 1, <http://doi.org/10.18352/ulr.308>, pp. 1-18.

18 See Leeuw, supra note 17, p. 22. W.J. Ball, ‘A Pragmatic Framework for the Evaluation of Policy Arguments’, (1995) 14 Review of Policy Research, no. 12, pp. 17-20.

19 See Leeuw, supra note 17, p. 29.

a normative meaning when it comprises normative judgements regarding the ‘real needs’ of ‘real people’ in real life. 20 Having thus explained the content of empirical legal research, in the next section the discussion will address theoretical debates in the field of empirical legal research.

2. Quantitative or qualitative empirical legal research: a debate

According to Epstein & King, empirical legal research can be either non-numerical and qualitative or numerical and quantitative. 21 However, in the social sciences discipline there is a long-standing debate among social scientists, who discuss the merits of empirical qualitative and quantitative research methods based on philosophical and epistemological arguments. The qualitative-quantitative debate has also gained considerable impetus among the empirical legal researchers. Scholars such as Epstein & King and/or Dobinson & Johns accept qualitative empirical evidence (non-numerical) and its collection method as a valid means of empirical legal research, something that is not accepted by Heise. 22 Heise explains that, up to 1998, empirical legal research comprised only research which made use of quantitative data and methods of statistical analyses to identify patterns in judicial decisions. These included ‘judicial opinion coding or case content analysis, descriptive and inferential’ while excluding empirical legal research which used other qualitative techniques. 23 Since then, legal scholars have been encouraged to employ and develop other empirical methodologies in empirical legal research. 24 For instance, the proponents of the use of qualitative research methods advocate that only qualitative empirical legal research offers to policy-makers valuable

‘information about decision making, experiences and behaviour grounded in the experiences and world-view of those likely to be affected by a policy decision’. 25

Qualitative empirical legal research examines socially constructed facts, such as people’s perception and understanding of law and justice, whereas quantitative research examines (legal) facts, which are measurable, independent and more easily observed. 26 In principle, qualitative research is research the epistemological underpinning of which is mainly found in the paradigm of social constructivism and interpretivism, as opposed to quantitative research, which epistemologically belongs to the research tradition of positivism. 27

In particular, qualitative research is ‘naturalistic’ and participatory research conducted in its natural context to capture experiences and observations, and subsequently to understand them and assign a subjective meaning to them. 28 In other words, it attempts to capture the complexity of social phenomena in human behaviour and to determine their meaning. 29 It is ‘naturalistic’ because it examines social phenomena in their natural settings and it is ‘participatory’ because the research subject plays a crucial role in the research process. 30 This is achieved through three main methods and techniques of collecting data: in-depth interviews, direct observations and analysis of data retrieved from relevant documents. 31 Such empirical research combined with traditional, black letter legal research is often also referred to as

‘socio-legal research’. 32

20 J.M. Smits, ‘Law and interdisciplinarity: on the inevitable normativity of legal studies, Critical Analysis of Law’, (2014) 1 An International

& Interdisciplinary Law Review, no. 1, p. 84.

21 See Epstein & King, supra note 12, p. 2.

22 M. Heise, ‘The importance of being empirical’, (1998-1999) 26 Pepperdine Law Review, no. 1, p. 810. See Dobinson & Johns, supra note 7.

See also Epstein & King, supra note 12.

23 See Epstein & King, supra note 12, p. 2. See Heise, supra note 22, p. 810. See Dobinson & Johns, supra note 7, p. 17.

24 R.J. Landry, ‘Empirical Scientific Research and Legal Studies Research – A Missing Link’, (2016) 33 Journal of Legal Studies Education, no. 1, p. 170. D.R. Cahoy, ‘Editor’s Corner: Considerations in the Rise of Empirical Legal Scholarship’, (2010) 47 American Business Law Journal, no. 3, p. vi. L. Webley, ‘Qualitative Approaches to Empirical Legal Research’, in P. Cane & H. Kritzer (eds.), The Oxford Handbook of Empirical Legal Research (2010). L. Webley, ‘Stumbling Blocks in Empirical Legal Research: Case Study Research’, (2016) Law and Method, no. 3, pp. 1-21.

25 Smith et al., ‘Bridging the Empirical Gap: New Insights into the Experience of Multiple Legal Problems and Advice Seeking’, (2013) 10 Journal of Empirical Legal Studies, no.1, p. 149.

26 See Webley (2010), supra note 24, p. 927.

27 J.W. Creswell, Research Design, Qualitative, Quantitative and Mixed Methods Approaches (2003), pp. 8-9, 14.

28 See Webley (2010), supra note 24, p. 927.

29 See Creswell, supra note 27, p. 8.

30 See Webley (2016), supra note 24, p. 929.

31 Ibid., pp. 928-929.

32 See Dobinson & Johns, supra note 7, p. 20.

In qualitative research, the objective of the researcher is to understand the meaning that the research subject gives to the examined social phenomenon rather than to generate or validate theories deductively retrieved from academic literature, something that applies when the positivistic or post-positivistic paradigm is followed. 33 Qualitative methods rely heavily on inductive reasoning based on data and reality, which are then categorised into general themes and patterns. 34 These methods can be used for exploratory, explanatory and descriptive purposes, and they can lead to the development of descriptive or causal inferences. 35 As Creswell notes, this perspective differs substantially from the positivistic and post-positivistic perspectives of empirical research in the social sciences, which seek to achieve law and theory verification and refinement through empirical observation and measurement in order to come to understanding. 36

The paradigm of positivism, which also underlies legal studies, focuses on objectivity and neutrality and on the methods of positive sciences and positive law. Qualitative research is predominantly a form of social inquiry. However, there are social scientists who developed a classical positivistic view of the social sciences (such as Comte, Durkheim and Grix). 37 There are also researchers who combine different paradigms – and thus research methods. 38 At first glance, the combination of legal research and empirical (qualitative) research as related to the social sciences would seem to be a rather strange one. It raises epistemological as well as methodological concerns and the need for multiple tests of validity and rigour from both disciplines.

However, many scholars agree that empirical legal research has substantially helped the study of law and subsequently the development of law. In addition, empirical legal research has improved the training of legal scholars and legal practitioners in their application of methodologies other than the doctrinal legal method. 39

2.1 The use of the case study qualitative method in interdisciplinary empirical legal research

Creswell notes case study research as a ‘strategy’ of qualitative research, 40 which is distinguished and established in the empirical qualitative research domain. 41 Case study development is predominantly related to qualitative interpretivist research and methods of collecting evidence. However, a more objective and positivistic approach to case study research has been provided by Yin, probably today’s most influential scholar in the field of case study development. Yin contemplates the case study ‘strategy’ and/or methodology, which ‘does not imply the use of a particular data collection method’ but rather goes beyond that. 42

The particularities of the case study ‘strategy’ are explained by Yin in his seminal work of 1984 concerning case study research, its design and methods. 43 In his book, Yin distinguishes case study research from the case study as a ‘teaching tool’ used in other fields, such as ‘the field of law’. 44 He then discusses the case study paradox, i.e. the wide use of case study research in various academic disciplines and fields, although case study research is stereotypically perceived to be a ‘less desirable’ means of research that lacks

33 See Creswell, supra note 27, p. 9.

34 See Webley (2010), supra note 24, p. 929.

35 Ibid., p. 928. See Epstein & King, supra note 12, p. 20.

36 See Creswell, supra note 27, pp. 6-7.

37 See Van Aeken, supra note 15, pp. 64-65.

38 See Creswell, supra note 27, pp. 15-17. Examples are provided by Webley (2010), supra note 24, on p. 930 citing G. King et al., Designing Social Inquiry Scientific Inference in Qualitative Research (1994), p. 3.

39 See Smits, supra note 20, p. 85. See Epstein & King, supra note 12, pp. 8-9. T. Eisenberg, ‘The Origins, Nature, and Promise of Empirical Legal Studies and a Response to Concerns’ (2011), p. 1719 available at: <http://scholarship.law.cornell.edu/facpub/974> (last visited 7 November 2017). See Heise, supra note 22, p. 813

40 In Creswell’s language the term ‘strategy’ is used interchangeably with the term ‘methodology’ to describe any researcher’s ‘strategy of inquiry’, method of research and/or the principles that guide a ‘plan of action that links methods to outcomes’ and governs the ‘choice and use of methods’ in qualitative research. The term ‘strategy’ and the equivalent term of ‘methodology’ differ in Creswell’s language from the terms ‘methods’ and ‘techniques’, which are used interchangeably to describe the techniques used for the collection of data in qualitative research. See Creswell, supra note 27, p. 5.

41 See Creswell, supra note 27, p. 15.

42 For instance, according to Yin, case study research differs from ethnographic research, which employs only data collection through the participant’s observations. R.K. Yin, ‘The Case Study Crisis: Some Answers’, (1981) 26 Administrative Science Quarterly, no. 1, pp. 58-59.

See Webley (2016), supra note 24, p. 939.

43 R.K. Yin, Case Study Research: Design and Methods (5 th edition 2014).

44 Ibid., p. 5.

precision, objectivity and rigour. 45 The case study paradox is also central to the scholarship of Flyvbjerg, who demonstrates in what terms the case study method is actually and constantly ‘poorly understood’. 46 The

‘special’ but ‘unexamined status’ of the case study methodology due to various methodological stereotypical perceptions is also reflected in the scholarship of Ragin & Becker and George & Bennett. 47 The stereotypical perceptions concerning the use of the case study qualitative method as well as its perceived advantages and limitations are discussed in Subsection 2.2.

A case study, according to Yin’s definition, is an empirical study that ‘investigates a contemporary phenomenon in-depth within its real-life context, especially when the boundaries between the phenomenon and the context are not clearly evident’. 48 The case study research in social inquiry and its valid development has stimulated the emergence of significant methodological scholarship. 49 Although case study research is stereotypically perceived to be mainly used for exploratory purposes, e.g. for generating hypotheses in the preliminary stages of research, according to Yin and to other scholars it aims to provide further in-depth exploration and detailed descriptions and explanations of activities, events, situations and processes concerning people’s behaviour and phenomena. 50 Accordingly, Flyvbjergargues that ‘the case study is useful for both generating and testing of hypotheses but is not limited to these research activities alone’. 51

Case study research is suited particularly for use when ‘a how and why [research] question is being asked about a contemporary set of events, over which the investigator has little or no control’. 52 For instance, a case study can be developed if a researcher aims to determine the meaning that certain people give to, amongst other things, real-life events, organisational and managerial processes, situations and actions as well as processes by which these actions, events and situations actually take place. 53 In this way, the researcher can achieve greater knowledge and understanding of the examined phenomena. 54

Yin’s popular development of the case study method has a positivistic and deductive stance, which mainly intends to test theory (in single case study designs) and to generate theory (in multiple case study designs), subject to criteria concerning validity and reliability-replication. 55 Those are established to safeguard the study’s objectivity against the researcher’s personal bias. According to Yin, maintaining objectivity and meeting the requirements of validity and reliability require the development of a research design, which contains certain steps and systemic processes that are traceable and transparent. 56 Eisenhardt & Graebner, two well-known social scientists, provide a more interpretivist approach to case study research. 57 They suggest how to handle emergent theory to the extent that it is evidence-based. They call it ‘grounded’

theory, a qualification which differs from the classical meaning that Glaser & Strauss gave to grounded theory development. 58

45 Ibid., p. 19.

46 B. Flyvbjerg, ‘Case study’, in N.K. Denzin & Y.S. Lincoln (eds.), The Sage Handbook of Qualitative Research (2011), p. 302. J. Gerring, ‘What is a case study and what is it good for?’, (2004) 98 The American Political Science Review, no. 2, p. 341.

47 C.C. Ragin & H.S. Becker, What is a Case?: Exploring the Foundations of Social Inquiry (1992), p. 8. See A.L. George & A. Bennett, Case studies and theory development in the social sciences (2005), pp. 5-6.

48 See Webley (2010), supra note 24, pp. 939-940. See Yin, supra note 43, p. 16. See Webley (2016), supra note 24, pp. 1-21.

49 H. Simons, ‘Case Study Research: In-Depth Understanding in Context’, in P.L. Leavy (ed.), The Oxford Handbook of Qualitative Research (2015), pp. 455-470. R.E. Stake, ‘Qualitative Case Studies’, in N.K. Denzin & Y.S. Lincoln, The Sage Handbook of Qualitative Research (2005). See Ragin & Becker, supra note 47. D. Byrne & C.C. Ragin, The Sage Handbook of Case-Based Methods (2009). See Flyvbjerg, supra note 46. See Gerring, supra note 46.

50 See Webley (2010), supra note 24, p. 940. See Creswell, supra note 27, p. 15. See Flyvbjerg, supra note 46, p. 302. See Yin, supra note 43, p. 4.

51 See Flyvbjerg, supra note 46, p. 306.

52 See Yin, supra note 43, p. 14.

53 J. Mason, Qualitative Researching (1996), p. 129.

54 J.A. Maxwell, ‘Designing a qualitative study’, in L. Bickman & D.J. Rog (eds.), The Sage Handbook of Applied Social Research Methods (2009), p. 221.

55 See Yin, supra note 43, pp. 36-37. See Webley (2010), supra note 24, pp. 932-936.

56 These are: the development of a research protocol, cautious and justifiable case selection on the basis of repetition, a definition of the unit of analysis, the collection of data from multiple and varied sources, a logical manner of linking data with theoretical propositions through pattern matching and other techniques, and finally the interpretation of findings. See Yin, supra note 43, pp. 27-68.

57 K.M. Eisenhardt & M.E. Graebner, ‘Theory Building from Cases: Opportunities and Challenges’, (2007) 50 Academy of Management Journal, no. 1, p. 25.

58 Ibid., pp. 27-30.

The above-mentioned approaches offer room for the case study method to be used by legal scholars in empirical legal research. However, as Webley notes, the application of the case study method is ‘relatively underused in empirical legal research’. 59 According to her, the application of case study method in empirical legal research could provide analyses concerning how legislation is ‘understood’, ‘applied’ or ‘misapplied’,

‘subverted’, ‘complied with’ or ‘rejected’ which can influence law-related areas, such as ‘legal and policy making processes’ and ‘court procedure’ amongst others. 60 Similarly, Hutchinson demonstrates what type of case study research could be embedded into empirical legal research for:

(i) exploratory reasons: the legal case study will allow the exploration of typical examples of legal cases which have produced varied legal outcomes, e.g. a legal case study which covers the data from trial transcripts and decisions or interviews with litigants;

(ii) illustrative (descriptive) reasons: the legal case study can be illustrative by indicating and comparing practices in various organisations and explaining their differences; and

(iii) explanatory reasons: the legal case study will explain significant reasons underlying a certain legal process. 61

2.2 The strengths and weaknesses of the case study method in empirical legal research

In Subsection 2.1, it was explained that the case study qualitative method in empirical legal research is a method that could investigate, in an in-depth way, the meaning of real-life events, organisational and legal processes and/or human actions and behaviours. 62 As a research method, it has perceived weaknesses and strengths that any researcher should be aware of, especially when it is used as an auxiliary method within the framework of empirical legal research. The strengths and weaknesses of case study research can be further extended to the field of empirical legal research. However, although the strengths and weaknesses of case study research have become the subject of scholarly debate, which provides multiple arguments with respect to both (see Table 1), these arguments will be only discussed in this section briefly and in a less analytical but more informative manner. This is because the objective of this article is not to participate in the continuing case study methodological debate, which is developed in particular by qualitative researchers in the social sciences discipline. On the contrary, it is considerably more important here to contemplate the opportunities offered by a non-legal research method that can be used more often by legal researchers in support of legal research.

The case study development offers an advantage to the legal researcher in answering questions of

‘how’ and ‘why’. These are not legal questions per se, but they can be complementary to legal questions.

In response to these questions, the legal researcher can use a contemporary set of real-life events data (collected through interviews, documents and observations), rather than legal arguments and theoretical constructs, to examine particular topics. Examples are ‘the application of legal rules and procedures’ and other ‘processes’ including as well the implementation of ‘organisational and managerial processes’ and in particular relating to how these are perceived, how the persons involved in them react to them and how such a reaction influences the effectiveness of such rules, processes and procedures. 63 In this way, and by being engaged in tasks which require an improved skillset, the legal researcher can seek answers to certain research questions. 64 Webley is not the first scholar to raise the issue of legal education traditionally training lawyers to handle only legal data retrieved predominantly from legislation and case law. 65 This results in

59 See Webley (2016), supra note 24, p. 2.

60 Ibid., p. 3.

61 T.C.M. Hutchinson, Research and Writing in Law (2002), p. 104.

62 See Yin, supra note 43, p. 4.

63 See Webley (2016), supra note 24, p. 21.

64 Ibid. See Yin, supra note 43, pp. 9-11. See Webley (2016), supra note 24, p. 21 mentions regarding the effective use of case study in empirical legal research which enlarges the skills of the legal practitioner: ‘it requires us to adopt a structured and reflective approach to research design in many instances, to consider pre-emptively possible explanations (hypotheses) and rival propositions and to engage with theory at an early stage in a study’.

65 See Webley (2016), supra note 24, p. 2. See Heise, supra note 22, p. 811. See Epstein & King, supra note 12, p. 1. In the field of empirical legal research Siems states: ‘Lawyers may have to accept that without additional training scientific legal research may remain superficial or may produce wrong results’. See Siems, supra note 1, p. 11.

lawyers not being trained in handling other types of sources of real-life data, i.e. interviews, surveys and observations.

In addition, the case study research offers an opportunity to the legal researcher to collect and verify responses originating from different sources of data collection, by comparing a number of different approaches to resolving an issue using the technique of triangulation. 66 The technique of triangulation applied in case study qualitative method is accurately defined by Webley as the process of considering a research question ‘from as many different standpoints as possible, using as many different data types as possible to permit a holistic examination of the question to see which explanations, if any, remain consistent across all data sources’. 67 Such an approach allows the legal researcher to examine holistically a phenomenon in its natural environment and to identify multiple explanations, while capturing different perspectives from different types of data. 68

Within the framework of case study qualitative development as part of empirical legal research, the legal researcher is able to see the reality with a more holistic, in-depth and contextual view, a view that is evidence-based with respect to approaches, events, behaviours and processes. Case study research, as part of empirical legal research offers an opportunity to the legal researcher to examine the effects and the complexities of the implementation of the law in a sequence of events that follow a natural order in a specific period.

However, the legal researcher should also be aware of the perceived weaknesses and ‘prejudices’

of case study research and its used applied methods. 69 The most commonly acknowledged weakness is the perceived vulnerability of case study research in terms of rigour and validity when compared with quantitative numeric studies. 70 According to methodological scholarship, the case study research is seen to lack the validity of developing a proper sample of cases and providing objectively verified results. 71 In case study research, it is seen that there is space for the researcher’s bias to infiltrate the selection of cases and the research results. 72 Hence, case study research can encompass predominantly the ‘insider view’, i.e. the personal bias of the researcher, without encompassing an objective understanding of the data. 73 However, as Yin puts it correctly, the various logics applied to case study selection among others, e.g. the replication logic, differ from the objective sampling logic applied to surveys. 74

Indeed, the collection and analysis of data, which originate from interviews and observations, may allow for the personal bias of the researcher to affect the outcome of the research, if the case study method is not used properly and consistently. 75 In that respect, Yin and other scholars encourage the development of scholarship for the methodology of case study research that will assist case study researchers to avoid commonly occurring mistakes, e.g. sloppiness in research, deviations from systemic methodological processes, ambiguous results and weak evidence and the personal bias of the researcher infiltrating the research findings. 76 One could even argue that the stereotypical perceptions militating against the use of case study research have resulted in strengthening the development of the method and its methodological rigour, something that is clearly reflected in the work of Flyvbjerg and in other scholarship. 77

66 See Hutchinson, supra note 61, p. 103. See Webley (2016), supra note 24, p. 3.

67 See Webley (2016), supra note 24, p. 3.

68 See Hutchinson, supra note 61, p. 103.

69 See Webley (2016), supra note 24, p. 14.

70 See Yin, supra note 43, pp. 19-22. See Flyvbjerg, supra note 46, pp. 302, 309-311. See George & Bennett, supra note 47, pp. 22-25.

71 See Hutchinson, supra note 61, p. 103. See Flyvbjerg, supra note 46. See George & Bennett, supra note 47.

72 See Yin, supra note 43; Flyvbjerg, supra note 46; George & Bennett, supra note 47; Hutchinson, supra note 61.

73 See Yin, supra note 43; Flyvbjerg, supra note 46; George & Bennett, supra note 47; Hutchinson, supra note 61.

74 See Yin, supra note 43, p. 59. Yin notes that the sampling logic of surveys requires: ‘an operational enumeration of the entire universe or pool of potential respondents and then a statistical procedure for selecting a specific subset of respondents to be surveyed.

The resulting data from the sample that is actually surveyed are assumed to reflect the entire universe or pool, with inferential statistics, used to establish the confidence intervals for which this representation is actually accurate. The entire procedure is commonly used when an investigator wishes to determine the prevalence or frequency of a particular phenomenon’. See Flyvbjerg, supra note 46. See George & Bennett, supra note 47.

75 See Yin, supra note 43, pp. 19-20. See Hutchinson, supra note 61, p. 103. See Flyvbjerg, supra note 46.

76 See Yin, supra note 43, pp. 19-20. See Epstein & King, supra note 12, pp. 5-6.

77 See Flyvbjerg, supra note 46. See Yin, supra note 43. See Stake, supra note 49. See George & Bennett, supra note 47.

Another perceived weakness of case study research claims that, due to its naturalistic character, there is no control exerted by the researcher over the examined variables or the behaviour of the participants. 78 Such a lack of control may allow the development of bias on the data and even result in the respondents altering their behaviour because they know that they are being studied. 79 Additionally, case study research (and especially the single case study) is stereotypically perceived to provide only a weak basis for generalisations to larger populations, i.e. the so-called ‘statistical generalisation’. 80 However, according to Yin and other scholars it provides a strong basis for the ‘analytical generalisations’ of theories and theoretical propositions particularly in a process of using ‘falsification’, ‘rival’ or ‘deviant’ cases or ‘a case that runs counter to a rule’. 81

Flyvbjerg explains the different logic underlying case study research, emphasising that knowledge that

‘cannot be formally generalized does not mean that it cannot enter into the collective process of knowledge accumulation in a given field or in a society’. 82 Timulak confirms that the idea of generalisation in case study research is ‘somewhat contradictory to the nature of most qualitative research which cherishes more contextualised knowledge’. 83 What needs to be understood is the simple argument offered by Webley, who explains that a case study ‘is a study of a phenomenon in itself rather than a means through which to view the whole world’. 84

Finally, scholarship also provides arguments against case study research on the basis of practical implications. Literature claims that in contrast to other types of research, interdisciplinary research and particularly case study research requires more time, more commitment and more financial resources. 85 In empirical legal research, case study research obviously requires the understanding of a different methodological position and familiarity with new terminology and techniques that are most of the time unknown and new to the legal researcher. 86 Table 1 demonstrates an indicative list of arguments provided in literature for and against the case study research. 87

Table 1 Arguments for and against case study research

Arguments for case study research Arguments against case study research It offers opportunities to verify responses by comparing a

number of different approaches to resolving an issue. It lacks the validity of a proper sample and objective quantitative proof (if not used in a mixed setting).

It allows the researcher to look at a particular situation in

some depth and also in a broader sense. There is a risk of respondents changing their behaviour because they know that they are being studied.

It allows a contextual rather than an artificially constructed

view of experiences. It may only reflect the situation through the eyes of the researcher: the data may be more reflective of the view of the beholder rather than the subject (fears of bias).

It allows for a contextual approach to the situation, especially with regard to ‘time slice’ situations, which can be viewed before and after major events or changes in order to document actual effects.

There is greater latitude for researcher bias in the actual choice of the individual or case to be examined.

It allows the researcher to delve further into inconsistent

responses. The ‘insider view’ being presented is by definition

idiosyncratic-individual and not as encompassing as a bird’s-eye external sweep of the situation.

It allows for the complexities of social and political relations to be seen and for the relationships between these and the effects of one on others to become more obvious.

It would be nearly impossible to replicate a case study; the researcher can only document an example of a situation, so further research would usually be deemed necessary.

78 See Webley (2016), supra note 24, pp. 4-5.

79 See Hutchinson, supra note 61, p. 103.

80 See Yin, supra note 43, p. 21; Flyvbjerg, supra note 46, p. 305; Stake, supra note 49, p. 448; George & Bennett, supra note 47, p. 7.

81 See Yin, supra note 43; Flyvbjerg, supra note 46; Stake, supra note 49; George & Bennett, supra note 47.

82 See Flyvbjerg, supra note 46, p. 305.

83 L. Timulak, ‘Qualitative Meta-analysis’, in U. Flick (ed.), The Sage Handbook of Qualitative Data Analysis (2013), p. 492.

84 See Webley (2016), supra note 24, p. 5.

85 See Siems, supra note 1, pp. 7-8.

86 Ibid., pp. 7-8.

87 See Hutchinson, supra note 61, p. 103. See Flyvbjerg, supra note 46. See George & Bennett, supra note 47. See Yin, supra note 43, pp. 19-22. S.B. Merriam, Qualitative Research: A Guide to Design and Implementation (2009), p. 53.

Arguments for case study research Arguments against case study research Universals cannot be found in the study of human affairs.

Context-dependent knowledge is more valuable. General, theoretical knowledge is more valuable than concrete case knowledge.

Formal generalisation is overvalued as a source of scientific development; the force of a single example is underestimated.

One cannot generalise based on an individual case;

therefore, the case study cannot contribute to scientific development.

The case study is useful for both generating and testing of

hypotheses but is not limited to these activities. The case study is most useful for generating hypotheses;

that is, in the first stage of a total research process, while other methods are more suitable for testing hypotheses and theory building.

There is no greater bias in case study towards confirming

preconceived notions than in other forms of research. The case study contains a bias toward verification, that is, a tendency to confirm the preconceived notions of a researcher.

Difficulty in summarising case studies is due to properties

of the reality studied, not the research method. It is often difficult to summarise and develop general propositions and theories based on specific case studies.

Potential for achieving high conceptual validity. It is prone to versions of ‘selection bias’.

Strong procedures for fostering new hypotheses. Case studies are much stronger at identifying the scope conditions of theories and assessing arguments about causal necessity or sufficiency in particular cases than they are at estimating the generalised causal effects or causal weight of variables across a range of cases.

Useful means to closely examine the hypothesised role of

causal mechanisms in the context of individual cases. Lack of representativeness: case researchers do not aspire to select cases that are directly ‘representative’ of diverse populations and they usually do not and should not make claims that their findings are applicable to such populations.

Capacity for addressing causal complexity. Case studies require more time and commitment and hence adequate financial resources in order to be properly conducted. They often result in unreadable extensive data.

In Subsection 2.3, certain issues of validity and rigour relating to the qualitative case study method will be discussed as well as some of the methodological tools and techniques provided to avoid such issues.

2.3 Validity and rigour of the case study method

It was earlier mentioned in Subsection 2.1 that empirical legal research is subject to certain criteria with respect to validity, rigour and reliability. These criteria show to what extent the legal researcher validly and accurately captured the reflection of the examined phenomenon in real life. They also show to what extent data processing and measurements can be replicated by other researchers so that they may produce similar results which are free from bias. This can be done based on various techniques that have been developed to cross-examine data, amongst others, e.g. the method of data triangulation that was also explained earlier in Subsection 2.2. 88

Additionally, in Subsection 2.2 it was noted that the most commonly claimed consideration regarding the use of the case study qualitative method as developed within the post-positivistic paradigm, concerns the manipulation of data and their interpretation to an extent that reflects the researcher’s personal bias. The post-positivistic paradigm of the case study, as opposed to the paradigm of constructivism and interpretivism, requires the pursuit of objectivity and reliability in generating research results. Accordingly, in this type of qualitative research, several converging techniques have been methodologically developed to assist researchers to safeguard what is called the ‘validity’ and ‘rigour-reliability’ of the case study research. 89 Yin distinguishes three types of validity criteria, i.e. construct validity, internal validity and external validity.

Another parameter he mentions is reliability. 90

88 See Webley (2010), supra note 24, p. 935.

89 Ibid., p. 935.

90 See Yin, supra note 43, p. 46.

Construct validity refers to a safeguarding process that takes place during the collection of data and the development of the case study analysis with the aim of determining whether the case analysis contains any fallacies and whether it has been developed in a way that is free from bias. Construct validity requires the researcher to address three questions:

(i) whether multiple sources of evidence have been used, cross-checked and cross-matched (using a triangulation method);

(ii) whether a chain of evidence has been established in the presentation of the collected data; and (iii) whether key interviewees have reviewed and provided feedback regarding the collected data that are

later processed through interview reports and coding. 91

Internal validity refers to a process that allows the researcher to identify during the data analysis whether the identified inferences and the causal relationships between them are correct. This process requires the researcher to reconsider the analytical tools used by demonstrating the causal relationships between evidence and theory. 92 Internal validity differs from external validity, which examines whether the results of a case study can be subject to replication. This replication logic is of major importance because it illustrates the reliability and rigour of the case study itself by considering whether the case study protocol and the research design have been appropriately developed to the extent that the study will produce the same results if it is replicated by other scholars.

Creswell & Miller also consider validity and reliability to be the anchors of case study research developed in the post-positivism paradigm. 93 This can be achieved through the employment of procedures that demonstrate the validity and reliability of all the steps that were used for the development of the case study.

Validity would then entail the convergence and saturation of information (the extent to which no new data can be collected and coded and/or no new information can be compared with the maximum possible) among different sources of data. 94 Such a result is achieved through triangulation across data sources, theories and methods, e.g. interviews, observations and documents. 95 This is the process that Creswell & Miller, in citing Patton, simplify as ‘returning to the data over and over again to see if the constructs, categories, explanations, and interpretations make sense’. 96 Creswell & Miller, in unanimity with Yin, consider external validity through ‘member checking’, during which the interviewees can review the credibility of the data and their interpretations in the case study concerned, as well as the reliability and the replicability of the method used. This is done by means of a trail technique, which requires the researcher to write down and catalogue the entire case study research process. 97

Other scholars, such as Maxwell, place at the epicentre of validity and reliability the quest of the researcher to identify the bias in the developed case study. 98 The bias can be the ‘researcher’s bias’, as well as ‘the effect of the researcher on the setting or individuals studied, generally known as reactivity’. 99 Maxwell, citing various scholars, such as Miles & Huberman, Becker, Kidder and Guba & Lincoln, enumerates a list of techniques that allow the researcher to identify personal bias, such as the intensive, repeated and long-term engagement of the researcher with the study participants, the acquisition of rich and thick data as opposed to poor data, the respondent’s validation, searching for discrepant evidence and negative cases, triangulation, quasi-statistics, and finally the comparison of information. 100 Leeuw & Schmeets provide similar criteria for assessing the validity of empirical legal research designs: internal validity (assessment

91 Ibid., p. 47.

92 Ibid., pp. 47-48.

93 J.W. Creswell & D.L. Miller, ‘Determining Validity in Qualitative Inquiry’, (2000) 39 Theory into Practice, no. 3, p. 125.

94 P.I. Fusch & L.R. Ness, ‘Are we there yet? Data saturation in qualitative research’, (2015) 20 Qualitative Report, no. 9, p. 1409.

95 See Creswell & Miller, supra note 93, pp. 126-127.

96 Ibid., p. 125 citing M.Q. Patton, Qualitative evaluation methods (1980), p. 339.

97 See Creswell & Miller, supra note 93, pp. 127-128.

98 See Maxwell, supra note 54, p. 243.

100 Ibid., pp. 243-245. See M.B. Miles & A.M. Huberman, Qualitative Data Analysis: An Expanded Sourcebook (1994), p. 237. H.S. Becker, Sociology work: Method and substance (1970), p. 51. L.H. Kidder, ‘Qualitative research and quasi-experimental frameworks’, in M.B. Brewer & B.E. Collins (eds.), Scientific inquiry and the social sciences (1981), pp. 226-256. E.G. Guba & Y.S. Lincoln, Fourth generation evaluation (1989), pp. 238-239.

of the causal relationship between theory and evidence), external validity (assessment as to whether the results can be subject to generalisation), descriptive validity (assessment of the quality of reporting of the empirical study) and criteria for assessing qualitative data analysis, such as confirmation or else verification of bias, reliability or else dependability, and finally internal validity or else authenticity. 101 They also present a ‘reasoned justification’ or ‘due process’ approach that enables the legal researcher to reasonably justify the use of extra-legal information with the aim of answering the research question. 102

3. Featuring the case study qualitative methodological toolkit in an empirical legal study 3.1 The Social Enterprise Study

Section 3 will reflect on the opportunities and hindrances of using case study research in one empirical legal study currently undertaken by the author of this article. As such, for the purpose of this article, the study will be called the ‘Social Enterprise Study’. The Social Enterprise Study examines a new and unexplored concept in legal scholarship, i.e. the social enterprise, as well as the associated particularities in legislation, which is tailor-made for social enterprises. A social enterprise is a new type of socially and environmentally conscious enterprise. 103 Several and varying examples of social enterprises can be found in various countries in the EU, one of them being for example a café located in Bratislava, which solely employs the homeless and another being a taxi company in Amsterdam, which uses only electric taxis driven by middle age people who are long-term unemployed. 104

Social enterprises tend to exhibit certain key characteristics in their organisational structuring, some of the most important being the pursuit of a societal (social and environmental) purpose over profit and the development of inclusive and participatory decision-making processes for their stakeholders. 105 Accordingly, national legal frameworks and tailor-made legal forms for social enterprises have been developed in several jurisdictions in the EU to accommodate their unique characteristics already mentioned. However, there are also EU countries which have not yet introduced any legal status for the development of social enterprises. 106

The Social Enterprise Study investigates the research question asking to what extent tailor-made legal forms in selected jurisdictions support social enterprises in their efforts to be participatory and inclusive to their stakeholders. Based on that research question, the Social Enterprise Study comprises a legal research part,which examines the legal forms and governance structures provided in tailor-made laws for social

101 F.L. Leeuw & H. Schmeets, Empirical Legal Research: A Guidance Book for Lawyers, Legislators and Regulators (2016), pp. 120-122, 153.

102 Ibid., p. 227.

103 These enterprises differ from mainstream companies and commercial business organisations to the extent that they are socially and environmentally conscious enterprises, which seek to contribute to contemporary social and environmental challenges through business activities and adopted business models. As such, they are characterised by an inherent hybridity, which entails the combination of for-profit and not-for-profit elements in their legal, governance and business structures. For instance, a distinctive feature of social enterprises is the pursuit of social and environmental objectives, which overrides the pursuit of profit-making activities and the distribution of profits to the enterprise’s owners and shareholders. Social enterprises prioritise the fulfilment of their social mission in response to major social challenges such as poverty, social exclusion, discrimination and stigma; accordingly, they further the improvement of society and the protection of human rights. They also take into account their environmental impact by displaying a high level of environmental responsibility and accountability. They do so by adopting innovative business models and tailor-made legal forms, which allow them to operate in a way that is more open, transparent, participatory and inclusive towards stakeholders and third parties. See J. Defourny & M. Nyssens, ‘Conceptions of Social Enterprise and Social Entrepreneurship in Europe and the United States:

Convergences and Divergences’, (2010) 1 Journal of Social Entrepreneurship, no. 1, pp. 33-38. J.A. Kerlin, ‘Social Enterprise in the United States and Europe: Understanding and Learning from the Differences’, (2006) 17 Voluntas, no. 3, p. 247. J. Defourny, ‘From third sector to social enterprises’, in C. Borzaga & J. Defourny (eds.), The Emergence of Social Enterprise (2001), pp. 1-18. A. Nicholls, ‘Introduction’, in A. Nicholls (ed.), Social Entrepreneurship: New Models of Sustainable Social Change (2006), pp. 1-35. B. Huybrechts & A. Nicholls,

‘Social Entrepreneurship: Definitions, Drivers and Challenges’, in C.K. Volkmann et al. (eds.), Social Entrepreneurship and Social Business:

An introduction and discussion with case studies (2012), pp. 31-48. G. Galera & C. Borzaga, ‘Social Enterprise: An international overview of its conceptual evolution and legal implementation’, (2009) 5 Social Entrepreneurship Journal, no. 3, p. 212. J. Austin et al., ‘Social and Commercial Entrepreneurship: Same, Different, or Both?’, (2006) 30 Entrepreneurship Theory and Practice, no. 1, pp. 2-3. J.G. Dees, ‘The meaning of “Social Entrepreneurship”’, (1998) Kauffman Foundation and Stanford University: Kansas City and Palo Alto, p. 1.

104 Taxi Electric, available at: <www.taxielectric.nl/>. Café Dobre & Dobré, available at: <www.dobredobre.sk/> (both websites last visited 21 November 2017).

105 A. Argyrou & T. Lambooy, ‘An introduction to tailor-made legislation for social enterprises in Europe: A comparison of legal regimes in Belgium, Greece and UK’, (2017) 12 International and Comparative Corporate Law Journal, no. 3, pp. 47-107. European Commission,

‘A map of social enterprises and their eco- systems in Europe (Synthesis Report)’ (2015), available at: <http://ec.europa.eu/social/main.

jsp?langId=en&catId=89&newsId=2149> (last visited 20 January 2017).

106 Synthesis Report, supra note 105, p. 52, which shows that for example, one of those countries is the Netherlands.

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The Oxford Handbook of Empirical Legal Research

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The Oxford Handbook of Empirical Legal Research

42 Empirical Legal Research and Policy-making

Martin Partington is Emeritus Professor of Law and Senior Research Fellow at the University of Bristol.

  • Published: 18 September 2012
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Empirical legal research (ELR) seeks to understand and explain how law works in the real world. Empirical research on law has become a recognized part of the social science research environment and the results of empirical research are central to an academic analysis of law. This article begins by offering some reflections on the relationship between research and government. It considers examples of empirical research on law influencing policy-making and reflects briefly on what these case studies suggest about the relationship between empirical research on law and the policy-making process. Following this, it seeks to identify the factors that need to be addressed to ensure that the research and policy-making process is as strong and integrated as possible. In the end, the article argues that researchers and policy-makers should consciously work toward the development of a strategic program of empirical research on law, justified for its wider potential impact on society.

Introduction   1003

Research and Government—the Need for an Evidence Base   1004

Case Studies: the Impact of Empirical Legal Research   1006

Legal aid and legal services 1007

Civil justice reform 1007

Alternative dispute resolution 1008

Developing administrative justice 1009

Family justice 1010

Equal treatment 1010

Law reform agencies 1011

Observations 1012

Integrating Empirical Research on Law and Policy-making   1013

Macro issues 1013

Micro issues 1017

Concluding Remarks   1020

I. Introduction

E mpirical research on law (ELR) seeks to understand and explain how law works in the real world. This volume demonstrates clearly that empirical research on law has become a recognized part of the social science research environment. The results of empirical research on law are (or should be) central to the concerns of the academic analysis of law (McCrudden, 2006 ) as well as more generally to understanding the role of law in modern society.

However, given that law is the principal tool used by modern governments to deliver social and economic policy, the lessons to be drawn from empirical research on law should not be of academic interest only. They should also be of considerable value to those working in government and other policy- making contexts. Law-makers should want to understand how law may be used to deliver policy objectives and how the laws they have promoted are impacting on the challenges arising in the societies they seek to govern.

There are at least two reasons why policy-makers could benefit from a clearer understanding of the contribution of empirical legal studies to policy-making.

Empirical evidence can reveal gaps in current legal provision, or weaknesses in the ways in which current law works. It can help identify new strategies for dispute resolution and more generally for increasing the impact of law on society. In short, empirical legal research can assist policy-makers in defining changes needed in law or legal process.

Empirical research on law can also be used to address policy areas where problems are not likely to be assisted by more legislation. Empirical research can challenge assumptions about the effectiveness of law as a regulatory tool. Those with experience of doing empirical research in law, who understand both the substance of current law and why it does not work, are well placed to suggest how sensible policy-making might not require the introduction of new law, but rather seek better use of existing legal provisions (See, for example, Law Commission, 2008 )

The argument in this Chapter is that, notwithstanding the enormous amount of empirical research on law that has been published over recent decades, much of which is reviewed in Part 2 of this book, the impact of such empirical research on the policy-making process is still not as significant as it should be.

This Chapter starts by offering some general reflections on the relationship between research and government. It then considers a number of examples of empirical research on law influencing policy-making and reflects briefly on what these case studies suggest about the relationship between empirical research on law and the policy-making process. It then seeks to identify the factors that need to be addressed to ensure that the research-policy-making process is as strong and integrated as possible.

II. Research and Government—the Need for an Evidence Base

Most people agree that, to a greater or lesser extent, the key social and economic problems facing the modern world have to be addressed by government intervention. And, there is increasing recognition that the really big challenges arising from globalization and environmental degradation can only be solved by governmental action on an international scale.

In identifying the issues to be addressed and shaping responses to them, many governments now seek to take into account research findings from both the physical and the social sciences. It is argued that, in principle, “evidence-based” policy-making is likely to be better than policy-making shaped by anecdote or personal preference.

There are various ways in which governments seek to promote and use research results in policy-making. These can be grouped under two broad headings: investment and knowledge transfer .

On the investment side, many countries fund substantial research activity, either through in-house research facilities, or by providing resources for research undertaken by third parties, principally university research departments but also other private sector research organizations. Thus, by way of examples only, in New Zealand, the government has established a Foundation for Research, Science and Technology which provides funds for a program of research 2 set by the Ministry for Research, Science & Technology. 3 In Australia, the Australian Research Council has a mission “to deliver policy and programs that advance Australian research and innovation globally and benefit the community.” 4 The National Research Council of Canada similarly funds research which contributes “to Canada and all Canadians” that (among other objectives) uncovers “solutions to national challenges in health, climate change, the environment, clean energy and other fields.” 5 In the United States, the National Science Foundation spends over $6 billion a year on research—about a fifth of all federally funded research. 6 The UK has a network of research funding councils, 7 and many government departments also invest directly in research. The European Union invests heavily in research under the leadership of a Commissioner for Science and Research. 8 A review of the websites of research funding in other countries would reveal myriad examples of public agencies investing in research, the bulk of which is of policy relevance.

In order to promote knowledge transfer, research funders now frequently require researchers to set out their plans for sharing knowledge about the research they have completed. 9 Many governments have created ways for those who work in government to gain access to information about, and to participate in, a wide range of research activity. Leading academics and other research professionals may be hired to work within government as researchers or policy advisors, either generally within their area of expertise or for specific projects.

In some countries more formal, longer-term arrangements have been instituted. For example, in the UK, the government employs a Chief Scientific Advisor, (currently Professor John Beddington) 10 who, among other tasks, oversees a network of other Scientific Advisors and research advisory groups based in various government departments. All these have created bridges between the worlds of research and government. In addition, UK government social research falls under the umbrella of the Government Social Research Unit. 11 All these activities are underpinned by a Council for Science and Technology, an independent research advisory group for all the UK governments. 12

The vast bulk of the research funded by governments falls under the broad umbrella of the natural sciences. This research is directed at the acquisition of the technological and other scientific knowledge that is seen as being at the heart of modern economies. There is a more limited focus on the social science research needed for governments to understand and attempt to resolve the key social problems of the age.

From the specific point of view of this Chapter, what is striking about the outlines of government research priorities which appear on the relevant websites is the almost total lack of reference to research into issues relating to questions of law and justice. (The Scottish government provides a remarkable exception to this generalization. It includes both crime and justice within its published lists of research interests, perhaps because these are areas in which the Scottish Parliament has legislative competence). 13

This is not to suggest that governments neither invest nor take an interest in the outcomes of empirical research in law. We consider below examples of how such research has influenced policy. But empirical research on law is regarded within governments as being at best of secondary importance, found within the specialist interests of departments of state concerned with law and the legal system. It is not seen as relevant to government as a whole.

However, as noted above, given that whenever governments decide to implement policy, the principal tool that they use for providing themselves with the authority for their interventions is law, it seems logical to suggest that policy-makers should have as much understanding as possible of how law works in the real world.

There are all kinds of question which empirical research results could help to answer: what kind of regulatory structures work best and in what contexts? When is direct regulation by government to be preferred to, say, regulation by newly created agencies, or self-regulation by industry? Who should determine regulatory standards? What enforcement strategies work best? Is enforcement best achieved by individuals taking proceedings in courts or being required to use alternative dispute resolution procedures? Is it by government or other public agencies taking proceedings? What should be the relationship between the use of formal and informal processes? How can access to justice be best promoted: by public legal services; by private finance? How can justice systems be resourced and encouraged to work with greater efficiency? These are questions which affect all aspects of government. One could think of many other examples.

Nevertheless, despite their dependence on law, governments do not currently appreciate as fully as they might how empirical research on law (with the possible exception of criminological research) might enable them to develop more successful legislative strategies and outcomes.

Notwithstanding this tentative conclusion, I consider in the next section a number of cases where empirical research on law clearly has had an impact, both positive and negative, upon policy-making and implementation, before going on to ask how relationships between researchers and policy-makers might be enhanced.

III. Case Studies: the Impact of Empirical Legal Research

In an essay of this kind, I can do no more than offer instances of empirical research influencing policy-makers. A full analysis requires its own empirical study. The examples I have chosen are selected mainly from projects with which I have had some association during my professional life. (While about 75% of my professional career was spent as a legal academic, my more recent experience has been working closer to government as a law reformer in the Law Commission for England and Wales and as consultant to or member of a number of government committees.) 14 Thus notwithstanding the international character of this book, they reveal a clear Anglo- centric bias. However, the examples mentioned here should be read in conjunction with those discussed in Part 2 of this volume. The Chapters there offer many other examples of empirical legal research undertaken in a wide variety of jurisdictions, many of which have made an impact on policy- making.

A. Legal aid and legal services

The area of legal policy-making, outside the area of crime control and criminal justice, that has arguably been most influenced by empirical research is that relating to the development of legal aid and the provision of legal services. Many countries have used empirical research to map the provision of legal services, to define the extent to which there is unmet need for legal services and to consider ways in which new models for the delivery of legal services might be promoted.

In the UK, it is nearly 40 years since Abel-Smith, Zander, and Brooke undertook their pioneering research on unmet legal need (1973). More recently, the work led by Genn 1999 revealed the extent to which those with potential causes of action failed to pursue their legal entitlements. This study was replicated in Scotland (Paterson and Genn, 2001 ).

The importance of empirical research to the development and delivery of legal aid is evidenced by the creation in 1996 of the Legal Services Research Centre. 15 Although funded by the Legal Services Commission—the agency currently responsible for delivering legal services—the center operates independently of the Commission. It uses its resources not only to undertake its own research (see, e.g., Pleasence et al., 2006 ) but also to commission research from outside researchers. It also facilitates contact between researchers and policy-makers through its biannual research conferences. Its work (and work upon which it is based) has served as a model for similar research in many other countries (including Canada, Scotland, New Zealand, Hong Kong, and the Netherlands)

B. Civil justice reform

In the common law world, much effort has been expended by policy-makers in recent years trying to create a civil justice system that is not exclusively available to either the very rich or (in those situations where legal aid is available) the very poor. Despite this, the empirical evidence on which proposals for reform might be based has historically been very patchy. Nevertheless in recent years policy relating to the reshaping of civil justice systems has been influenced, at least in part, by the outcomes of empirical research.

For example, in England and Wales, Lord Woolf's Report Access to Justice (Woolf, 1996 ) contained an empirical analysis of the costs of litigation (Genn, 1996 ). Following the introduction of the Woolf reforms, the newly created Civil Justice Council has been instrumental in promoting a number of research projects which have led to further policy development. For example, empirical research, sponsored by the Council, was central to the development of a new approach to the use of fixed fees to be charged by lawyers acting for clients in relation to certain classes of civil proceedings, notably low-value road traffic accidents where liability is admitted (Fenn and Rickman, 2003 ). 16 More recently it sponsored empirical research on collective legal actions (Mulheron, 2008 ), 17 which fed into policy recommendations on the issue made to government by the Council. 18

The Australian Law Reform Commission's report on the Australian Federal Justice system (ALRC, 2000 ) similarly commissioned and used empirical research to assist it in its thinking on reform of the Australian Federal justice system, and called for greater investment in empirical research on law and the justice system. Recommendations from this report were incorporated into an (undated) policy paper, Civil Justice Strategy , published by the Australian Attorney-General's department. 19

C. Alternative dispute resolution

Another policy issue closely related to reform of court process is alternative dispute resolution. A considerable body of empirical work, from a large number of jurisdictions, seeks to analyse the advantages and disadvantages of different forms of non-court dispute resolution procedures. For example, in the UK, a series of empirical studies of particular mediation schemes were commissioned, from the mid-1990s, by the (then) Lord Chancellor's Department/Department for Constitutional Affairs. These have been drawn together in a major report by Genn et al. (2007) . The principal conclusion of this research was that while those who used mediation generally liked the process, it was not greatly used.

This is a possible example of empirical research having an indirect, rather than a direct, impact on policy-making. The government remains committed to encouragement of the use of mediation, possibly more than the research might suggest is warranted. But the research is nonetheless important for policy-makers in that is identifies the issues that need to be addressed by government if greater use of ADR is to be achieved in England.

D. Developing administrative justice

One of the great changes that occurred in many countries during the twentieth century has been the creation of specialist forums for the resolution of disputes between citizen and the state. Myriad tribunals offering (arguably) more informal justice than courts have been established, especially in the common law world. These specialist fora have been the subject of a good deal of empirical research, much of which has influenced administrative justice policy (for an early study, see Robson, 1951 ).

In the UK, studies by the late Professor Kathleen Bell in the 1970s (Bell et al., 1974 ; Bell, 1975 ) led directly to policy initiatives involving, first the training of social security tribunal chairs and secondly, structural changes to the social security tribunal system introduced in 1983 (Partington, 1986 ). Empirical work on tribunals also influenced more recent policy- making related to the creation in 2007 of the new Tribunals Service. This was the outcome of a review of Administrative Tribunals, led by Sir Andrew Leggatt (Leggatt, 2001 ). Although the review itself commissioned only a modest empirical study, the thinking in the report was influenced by a great deal of empirical work (Partington and Harris, 1999 ; Partington, 2001 ).

In developing the new service, the Senior President of Tribunals Lord Justice Carnwath, anxious to ensure that lessons from research should not be lost, commissioned a review of empirical work on tribunals (Partington et al., 2007 ). 20 The newly created Administrative Justice and Tribunals Council has, as part of its statutory remit, the promotion of research into the operation of the administrative justice system in the UK (though no budget for achieving this goal). 21 This statutory requirement would have been unthinkable a few years ago. Its first report on research indicates a variety of ways in which it hopes to bring researchers and funders together to undertake further research on the work of tribunals and other institutions in the administrative justice system. 22

E. Family justice

Many developments in family law and the administration of family justice have been influenced by empirical research. This was a priority area for empirical research in the UK right from the start of the government's investment in empirical research on law. 23 Given the often extremely emotive terms in which debates on developments in family justice are conducted, empirical research has played an important role in ensuring that policy is not wholly driven by emotional argument.

A recent example has been debate on the extent to which courts that hear cases about children should be open—especially to reporting by the press. There was a clear division of opinion between those—notably fathers' groups—who felt that injustice resulted from secrecy and those who felt that confidentiality was necessary to protect the interests of the parties, particularly the children. The issue generated a considerable amount of press attention driven by a number of individual stories of alleged injustice. This in turn led to significant political pressure. The initial government response was to propose a very open policy; but empirical research suggested that such a policy response might not be the best way forward (Brophy and Roberts, 2009 ). The outcome was that changes to the ways in which family court proceedings can be reported in the press were introduced at the end of April 2009, but they were more nuanced than had originally been proposed. 24

More generally, the sensitivity of the work of family courts and the impact of court decisions on individuals is such that a number of jurisdictions have both sponsored and used empirical investigations in relation to different aspects of family justice policy. At the time of writing this Chapter, for example, the Australian Institute of Family Studies has undertaken a major empirical evaluation of family law reforms for the Australian Attorney General's Department, which is likely to be of considerable importance to the future development of family justice policy there. 25

F. Equal treatment

A dramatic example of the impact on policy-making of empirical research on law occurred in the mid-1990s. Empirical research on the criminal courts raised controversial questions about whether members of ethnic minorities received equal sentencing treatment in criminal trials (Hood, 1992 ; see also Shute et al., 2005 ). This research had two major impacts.

First, the Judicial Studies Board embarked on a program of compulsory judicial training on equal treatment—as direct an impact on policy-making as could be imagined. Second, the Lord Chancellor's Department, the Department for Constitutional Affairs and the Ministry of Justice commissioned further empirical studies on equal treatment in other areas of the justice system. (The most recent report is Mason et al., 2009 .) It remains an issue that concerns policy-makers, to which empirical research has had a significant input.

G. Law reform agencies

When law reform agencies enquire into a subject, they are heavily reliant on published research to inform their thinking. Until recently, the bulk of that research focussed on the black-letter analysis of case and statute law and was designed to identify ways in which existing law could be improved or rationalized.

However, many law reform agencies have increasingly come to realize that they must use, and in some cases commission, empirical research to facilitate their work. (See the view of the Australian Law Reform Commission considered above.) One important reason for this is that, although lawyers in the main see the purpose and value of law reform, others in the political system may not share those views. Law reform agencies need to make the case for reform to the governments for whom they work; empirical research on law can help to make that case.

Three very different examples from the Law Commission for England and Wales include work on: personal injury compensation (Genn, 1994 ), the effect of evidence of bad character on magistrates (Lloyd-Bostock, 2001 ) and the use of trustee exemption clauses (Dunn, 2002 ). While all three studies had a direct impact on the Law Commission's reports and recommendations on the subject in question, only the bad character study had further impact on subsequent legislation. 26 The commissioning and use of empirical research by law reform agencies, while expanding, is not as widespread as might be expected, not least because of the costs involved in undertaking such research.

H. Observations

The above examples lead to the following observations. First, there is greater awareness among policy-makers of the potential value of empirical research on law than there was even 20 years ago. However, this understanding is found largely in those departments of government directly concerned with the administration of justice. Policy-makers in other parts of government have not developed similar awareness.

Second, this awareness is now also found among leading members of the judiciary. Leading judges now understand much better the potential value of empirical research on law to provide information about the work of the courts, access to justice, problems of costs, and the like. Empirical legal research has also helped to identify issues on which there needs to be judicial training (for a recent example, see Moorhead and Sefton, 2005 ).

Third, there is an increasing number of government advisory bodies who understand the value of and are anxious to promote relevant empirical research on law. Currently, most lack the funding to commission it directly, though some work with private foundations to commission new studies.

Fourth, by no means all empirical work leads to identifiable policy outcomes, even where it has been commissioned by a government department or agency. In particular, research findings implying significant increases in public expenditure or the costs of litigation are in general less likely to lead to policy implementation than research indicating how things might be done more cost-effectively.

Fifth, coverage of the issues that have been the subject of empirical research on law remains patchy. There is comparatively more research on issues affecting the poor and disadvantaged than on those affecting the better-off (including commerce and business).

These observations—reflecting the current position in England and Wales—will find some resonance in other countries, in particular other common law countries where empirical legal research has also been developed.

The one exception is the U.S. Despite the fact that scholars in the U.S. have conducted major empirical investigations on law and legal process, the impact of this work on policy-makers seems to be relatively modest. Institutional arrangements in the U.S. seem to work against the ability of empirical legal researchers to influence policy-makers. This argument has been made both in the context of civil justice (Galanter, 1993 ) and criminal justice (Feeley, 1984 ). While there are government agencies, such as the Social Security Administration, that have research capacity, the outcomes of that research do not appear to be used in ways in which empirical research on law has been utilized in the examples given above. This raises a number of questions—which cannot be examined here—as to why this should be the case. It reinforces the point that the impact of empirical research on law on policy-making should itself be the subject of empirical study.

IV. Integrating Empirical Research on Law and Policy-making

Some may argue that the piecemeal approach to empirical research on law and its impact on policy-making—exemplified by the examples given above—is the best that can be achieved. This Chapter argues for a more ambitious view—that researchers and policy-makers should be more consciously working toward the development of a strategic program of empirical research on law, justified both for its own intrinsic interest and also for its wider potential impact on society. The question remains: how could this more ambitious vision be realized?

It is suggested here that a number of interlinking factors need consideration if a strategy for improving the ELR-policy-making environment is to be developed. For the sake of analysis, these are divided into macro and micro issues.

A. Macro issues

Two issues are fundamental to the greater integration of empirical research on law and policy-making: funding, and the shaping of disciplinary boundaries

An ambitious strategy for promoting empirical research on law cannot be delivered without adequate funding. It is true that in many countries research-funders—both governmental and private—have for many years supported projects in empirical research in law. In some cases, the effects of such investment are clear. For example, many countries have made significant investment in criminological research.

For well over 50 years, the UK Government's Home Office Research Unit funded research that enabled a number of universities to build up critical masses of researchers able to develop sustainable research programs. 27 (Though that Unit no longer exists as such, its functions continue in the Research Development and Statistics Directorate of the Home Office.) 28 In the U.S., there are annual programs of funding for the collection and analysis of data on crime run by the Bureau of Justice Statistics, 29 and the State Justice Institute has a program of grants that sometimes include research funding. The list of research reports published by the Canadian Department of Justice, going back to 2000, indicates a central concern with crime. 30 As a consequence, many countries have well established criminology research groups working in the universities.

On the civil justice side, major investments in empirical research on law have been made in the U.S. by bodies such as the RAND Corporation, which has long funded a major program of research on civil justice and has also created its own Institute for Civil Justice, employing a team of 40 researchers. 31 The National Center for State Courts regularly conducts research and produces statistical reports related to civil justice issues. There are now a number of well-established empirical law research centers in leading U.S. universities, including Cornell, 32 University of Wisconsin-Madison, University of California-Berkeley, and Georgetown. The American Bar Foundation has, for more than 50 years, also been providing empirical research “fundamental to the understanding of legal institutions and legal processes.” 33

In the UK, the Economic and Social Research Council (ESRC) provided core funding for a number of years to the Oxford Centre for Socio-Legal Studies. 34 This was a key development, both in terms of the pathbreaking research the Centre undertook, but also because it trained a cadre of researchers, many of whom have gone on to establish significant research careers, and who have been the backbone of empirical legal research on law in the UK for the last 30 years. But by comparison with the United States, large centers of empirical research on law have not emerged in the UK. Once core funding for the Oxford Centre dried up in the 1990s, levels of funding for empirical research outside the criminal justice field have been more modest. The ESRC continued to include socio-legal research in its portfolio of activities for which funding would be provided, and this has been supplemented in recent years by some funding from the Arts and Humanities Research Council. However, the take-up of available resources by researchers has been relatively modest.

In addition, from the mid-1990s, the UK Lord Chancellor's Department, which historically had commissioned empirical research on an ad hoc basis for the purpose of particular projects, established a modest research team, with equally modest funds. 35 This has expanded with the creation of the Ministry of Justice. A number of research foundations, most notably the Nuffield Foundation, 36 have funded empirical research in law (see further Genn et al., 2006 ).

Perhaps because of its separate legal system, combined in part with the relatively small size of the academic community in Scotland, the Scottish government has made a (comparatively) significant investment in empirical research in law over many years. While much of this research was done in-house, the government also sponsored research by empirical legal researchers working in the universities. 37

In other jurisdictions, a number of Law Foundations have been established, funded by the interest payments received by lawyers on money held in their client accounts. These Foundations use their resources to sponsor a range of activities including empirical research on law. 38 This has enabled a number of researchers to undertake empirical research in law. But the resource has never been sufficient for the creation of the infrastructure needed to build capacity for undertaking empirical legal research. Outside the United States, empirical research on law is mostly carried out by relatively small groups working on specific projects. There are no well-established civil justice research centers of the kind found in the U.S. 39

2. Shaping disciplinary boundaries

It is not, however, purely a question of funding. Universities play a central role in the shaping of disciplinary boundaries. There have been at least three trends which appear to have militated against the emergence of empirical research on law as a distinct disciplinary area, central to the academic enterprise.

First, on the legal side, while over the last 30 to 40 years the scope of law as a discipline has greatly expanded, with traditional “black- letter” approaches to legal scholarship being supplemented by “socio-legal” or “law and society” approaches which embrace insights from a number of social science disciplines, these developments do not appear—except possibly in some law schools in the U.S.—to have led to a proportionate increase of empirical research on law. The Nuffield review of the field in the UK (Genn et al., 2006 ) showed that comparatively little attention has been given to the development and provision of the intellectual skills needed for evaluating and perhaps ultimately undertaking empirical research on law. Even in those countries such as Canada and the United States, where law is a postgraduate subject studied by those who already have undergraduate degrees in other subjects, there seem to be only a limited number of contexts in which lessons from undergraduate programs of study, especially in subjects in the social sciences which include an introduction to empirical research methods, are brought into the law curriculum (see further Chapter 42 below). The undertaking or even analysis of empirical research on law is still not generally regarded as a central part of the discipline of law.

Secondly, on the social science side, it appears that law is no longer seen as an important focus for social research. In some countries, there also appears to be a reluctance to do empirical research in the social sciences. While this is not universally true—in the U.S. there is a strong empirical research effort in political science for example—this does seem to be the case in the UK.

Thirdly, although much lip-service is paid to the desirability of encouraging interdisciplinary research in universities—fundamental to the promotion of high quality empirical research on law—there are increasing institutional pressures working against those who want to develop intellectual collaborations. Whatever forward-thinking college presidents or university vice-chancellors may say, other pressures, such as the need to produce research papers published in refereed journals, still encourage researchers to stay within the comfort of familiar disciplinary boundaries.

Apart from criminology, where, as noted earlier, there is a number of well established research centers, these trends make it hard for those interested in empirical research on law to build the interdisciplinary research groups and centers needed to enable this area of research activity to develop its full potential, both as an area of research in its own right and as a resource of value to the policy-making process. Those who currently undertake such research should ask how it can be developed into a clearly defined disciplinary area, analogous to criminology. There is a fundamental need for academic leadership on this issue.

Of course, these two macro issues are interrelated. Academic disciplines are not shaped by pure academic analysis. New financial incentives would undoubtedly help the academic community to reshape disciplinary boundaries in ways that would promote empirical research on law. But to argue that this is essential does not mean that the required resources will be made available. There is intense argument in the academic community about how available resources should be divided. Investment in empirical research on law will only be provided if a compelling case for investment is made to those responsible for funding decisions. Absent new money, funding for empirical research on law can only be secured at the expense of some other current area(s) of research activity.

Even if these two macro issues are resolved, however, this would not necessarily mean that the ELR-policy-making environment would be strengthened. Other micro issues also need to be addressed if that environment is to be as fruitful and as dynamic as it could be.

B. Micro issues

1. applied versus pure research.

Tensions exist in many parts of the academic community about the relative merits of pure as opposed to applied research. Many academics argue that academic freedom should mean freedom to set personal research goals, untrammelled by questions of practical utility and social impact. They regard pure research as having higher status and more value than applied research. Others want to do applied research which seeks to address known problems in innovative ways. They want to work with industry and government to try to ensure that their research outputs have practical outcomes.

While the distinction between pure and applied research is not in practice as cut and dried as suggested in the previous paragraph—there is a continuum of activity that goes on within these parameters—nevertheless tensions arise when those who engage in pure research fear that those who fund research are trying to set research agendas more at the applied end of the spectrum. Fears for the future of “pure” research lead practitioners to assert the importance of pure research, thereby—if only by implication—devaluing the contribution of applied research. This can undermine the confidence of those who wish to do applied empirical research. 40

Thus those who wish to enrich the ELR-policy-making environment must build their confidence in the importance of high quality empirical research and recognize that it is of value not just to policy-makers but for the development of legal theory and legal scholarship generally. The impact of empirical legal studies on policy-making will be the greater if those who do the work are confident about their work and its contribution to learning.

2. The “branding” of empirical research on law

Although criminology has established itself as a clear academic disciplinary area, outside of criminal justice there is no comparable “civilology” brand. Instead, non-criminological empirical research on law has become caught up in the more generic and less readily comprehensible label of “socio-legal studies” (Twining, 2009 : Ch. 8 ). The concepts of socio-legal studies or “law in society” may be relatively well understood within universities but not outside the academy. For example, in the 1990s, in the UK the ESRC conducted a review of socio-legal research chaired by the late Mary Tuck, herself a distinguished criminologist working in the Home Office. She took a long time to understand what socio-legal studies were and why they would be worth supporting; once she did, however, she became an enthusiastic supporter and powerful advocate.

The ELR-policy-making environment is unlikely to the strengthened unless this question of the branding of empirical research on law is addressed by the academic community—a key recommendation of the UK Nuffield Review (Genn et al., 2006 ). Otherwise, it is likely that those in government will continue to have only a limited understanding of how empirical research on law might help them with the development and effective delivery of their social and economic policies.

3. Lawyers in government

Within government, lawyers are hired primarily for their specialist expertise in law, and only secondarily, if at all, for any wider knowledge they may have about how law works. This is certainly the case in the UK. In part this reflects how lawyers see themselves, with the focus being on their technical legal skills rather than any wider contribution that might derive from a broader vision of their potential role. This is in turn fostered by the perception of the discipline of law developed in the universities, discussed above. If lawyers are educated without any introduction to a wider range of social sciences, including empirical research on law, it is not surprising if they are unable to consider, other than in a somewhat amateurish way, how law works in the real world. Equally it is no surprise that policy-makers have not considered that those in government with a disciplinary background in law might have something more to offer than technical legal skills.

There have been some notable exceptions to this generalization. For example, for a number of years in the UK the Lord Chancellor's Department/Ministry of Justice employed, on a consultancy basis, a very experienced and well-established empirical legal researcher who both advised on and engaged in research sponsored by the department on various aspects of family law and family justice. 41 This work directly helped to shape a number of important policy initiatives. However, it will however be hard to improve the ELR-policy-making environment without a broader understanding within government of the insights that the empirical researcher on law can bring to the policy-making process.

4. Communication

Certainly in the UK, perhaps to a lesser extent in other countries, many researchers seem extraordinarily reluctant to communicate the results of their research beyond the narrow world of their academic colleagues. This is not an issue that exclusively affects legal researchers; there is a general problem of how academics communicate with the public, both generally and in more specialist contexts. In the UK, the Research Councils and Higher Education Funding Councils all have programs to encourage “knowledge transfer.” There is increasing political pressure to ensure that the public at large benefits from the investments government makes in research activity.

In the context of legal research generally, not just empirical legal studies, some senior legal academics are clearly very concerned about this. For example, the 2008 conference of the Society of Legal Scholars adopted, as its main theme, the “communication of legal scholarship.” 42 Strikingly, although most keynote speakers urged scholars to be more open with their research findings, many of those speaking from the floor insisted that the only audience worth communicating with was that of fellow academics. For a subject, such as law, which plays such a key role in everyone's life, this seems to reflect an extraordinarily modest ambition for the legal scholar (see Twining, 1994 ).

There is evidence that the research community is taking steps to address the communication issue. The creation of the Social Science Research Network may be cited as an example. 43 But any idea that research output speaks for itself is wishful thinking; scholars must actively promote their ideas if they are to gain the recognition they deserve in the societies in which they work.

Of course, there are individual scholars who over the years have communicated their research findings to a wider public clearly and effectively; their impact on society has, as a consequence, been significant. But so long as scholars, including those engaged in empirical research in law, remain reluctant to communicate the outcomes of their research to a wider public, the ELR-policy-making environment will be impoverished.

5. Building relationships between policy-makers and researchers

In the early years, when empirical research in law was in its infancy, there was some antipathy among policy-makers toward researchers, particularly toward academics working in universities. They were perceived as difficult to work with; their research reports were said to be too long and complicated; they were thought not to deliver their reports on time.

Whatever may have been the case in the past, the current generation of researchers is much more professional in its approach. Nonetheless, insofar as such negative views are still held, this inevitably sours the ELR-policy-making environment. It is essential to devise constructive ways for facilitating contact and building trust between researchers and policy-makers.

Most obvious is by making informal contact at research conferences and briefings. In such contexts it is important that both researchers and policy-makers can speak and debate freely. A current concern must be that, in a period of extreme public financial austerity, the opportunities for such communication will be reduced. Specific policy areas benefit from detailed collaboration between researchers and policy-makers. In addition, more formal channels of communication are required. Adapting what happens in the UK, governments should consider the appointment of a legally focussed Scientific Advisor or the establishment of a powerful advisory committee focussed on empirical legal research.

V. Concluding Remarks

Despite the potential for empirical research in law to influence policy-making, it is not argued here that the sole function of empirical research in law is to provide a backgroundagainstwhichpolicy-makingistobeconducted. Goodscientificempirical research in law is to be justified for its own sake and for the contribution it makes generally to our understanding of the impact of law on society. The idea that law in the books is not the same as law in practice is not, of course, a new one. The basic theory of legal realism has been articulated and accepted for many years. But if the idea of legal realism is to be based on something more scientific than anecdote, empirical research is essential to analyze the differences between the theory and practice of law and legal institutions. Many empirical legal studies will have no impact on policy-making nor will they seriously challenge existing or potential policy developments.

Nonetheless, it is clear that some empirical research on law has had a major impact on the policy-making environment. The precise extent of this impact (which as suggested earlier itself deserves empirical investigation) is hard to measure. It also varies from country to country.

While the achievements of empirical research in law have already been significant it could potentially have even greater impact on policy-making. If this potential is to be achieved, a number of fundamental issues need to be addressed. These issues include research funding, facilitating the crossing of disciplinary boundaries, and providing the means for researchers and policy-makers to interact effectively.

Notwithstanding the positive examples discussed earlier, some areas of empirical research on law have not yet had the impact on policy-making one might expect. For example, although governments are more concerned about the nature and extent of regulation than they once were, such concern appears to focus on the economic impacts of regulation, rather than the legal effectiveness of different forms of regulatory strategy. Thus there is an extensive body of empirical legal work which has shown that theories of legislative impact based on the idea of “command and control” (which assumes that government acts and people respond) simply do not reflect the empirical reality of what happens in the real world. This was one of the principal streams of work undertaken in the early years of the Oxford Centre for Socio-Legal Studies (see Hawkins, 1997 , 2003 ). It has been developed by other research groups both in the UK (e.g., LSE 44 ) and elsewhere, notably by the group at the Australian National University in Canberra. 45 This work has not yet had the impact on legal policy-making that it deserves.

This Chapter has not considered the possibility of empirical research on law impacting on social policy-making at the international level, which seems to be a particularly undeveloped area for empirical research. A wonderful study on intellectual property rights might however serve as a model for future developments in this context (Whatmore, 2002 ).

Not all empirical research on law can lead directly to policy development. There will always be policy decisions that do not derive from and are not even influenced by, research outcomes. Indeed, in some cases, policy choices will be made that positively fly in the face of published research. Policy-makers, particularly those who are dependent on the popular vote for their power, often find that to adopt policies that might seem to arise logically from research findings would lead to measures that are politically unacceptable.

In cases where empirical research findings might suggest the development of policies which would require significant additional public expenditure, governments—particularly in an age of austerity—will inevitably resist. In such cases, the results of empirical research may have indirect rather than direct impact by leading to alternative policy outcomes designed to avoid additional public expenditure. For example, in the mid-1980s the then- Lord Chancellor's Department commissioned Hazel and Yvette Genn to study the impact of representation on the outcomes of cases heard by a range of administrative tribunals (Genn and Genn, 1989 ). The report demonstrated clearly that there was a correlation between representation and outcome—appellants with representation had better outcomes at hearings than appellants without representation. The report noted that such representation did not have to be provided by qualified lawyers—lay representatives were also very successful on behalf of their clients. Nonetheless, there was a clear policy implication that there should be more public expenditure on the provision of representation services. However, the government was not willing to find the additional resources that were required. Although the direct effect of this research was limited, it nevertheless had significant indirect effects. Those who ran tribunals became conscious of the need to develop what came to be known as “the enabling role” (see Leggatt, 2001 : Ch. 7 ). In other words, tribunals were encouraged themselves to give as much assistance as possible to the unrepresented in putting their case. Preliminary findings from more recent research suggest that this alternative strategy may have had some success (Adler, 2009 ).

None of these arguments, however, reduces the importance to government of empirical research on law. What is currently lacking in any jurisdiction is acceptance of the view that empirical research on law is relevant to the whole of government and not just to those parts of government dealing with the legal system and justice issues. The ELR-policy-making environment needs both academic leadership and governmental support to enable ELR on law to achieve its full potential and to maximize its contribution to society.

Abel-Smith, B., Zander, M., and Brooke, R. ( 1973 ). Legal Problems and the Citizen: A Study in Three London Boroughs , London: Heinemann Educational.

Google Scholar

Google Preview

Adler, M. (2009). “Self-representation, just outcomes and fair procedures in Tribunal Hearings: Some inferences from recently completed research,” unpublished paper presented at Senior Presidents Conference for Tribunal Judges, Birmingham Exhibition Center, 20 May.

AJTC ( 2008 ). Developing Administrative Justice Research , London: Administrative Justice and Tribunals Council.

ALRC ( 2000 ). Managing Justice: A review of the federal civil justice system (Report No 89), Canberra: ALRC.

Bell, K. ( 1975 ). Research Study on Supplementary Benefit Appeal Tribunals—Review of Main Findings: Conclusions: Recommendations , London: HMSO.

Bell, K. et al. ( 1974 ). “ National Insurance Local Tribunals: A research study, ” Part 1 Journal of Social Policy 3: 289. (Part 2 in (1975) Journal of Social Policy 4: 1).

Brophy, J. and Roberts, C. ( 2009 ). Openness and transparency in family courts: what the experience in other countries tells us about reform in England and Wales , Oxford: Department of Social Policy and Social Work.

Dunn, A. (2002). Study of the Use of Trustee Exemption Clauses, discussed in Trustee Exemption Clauses: A Consultation Paper (CP 171), London: HMSO.

Feeley, M. ( 1984 ). Court reform on trial: Why simple solutions fail , New York: Basic Books.

Fenn, P. and Rickman, N. ( 2003 ). Costs of low value RTA claims 1997–2002: A report prepared for the Civil Justice Council, UK , available at〈 http://www.justice.gov.uk/about/docs/personal-injury-claims-road.pdf 〉.

Galanter, M. ( 1993 ). “ News from nowhere: the debased debate on civil justice, ” Denver University Law Review 71(1): 77.

Genn, H. ( 1994 ). How much is enough? A study of the compensation experiences of victims of personal injury (LawCom 225), London: HMSO.

Genn, H. ( 1996 ). Survey of Litigation Costs: Summary of Main Findings , in Woolf, Lord, Access to justice: final report to the Lord Chancellor on the civil justice system in England and Wales , (Annex 3), London: HMSO.

Genn, H. ( 1999 ). Paths to justice: what people do and think about going to law , Oxford: Hart.

Genn, H. and Genn, Y. ( 1989 ). The effectiveness of representation at tribunals: report to the Lord Chancellor , London: Queen Mary College, Faculty of Laws.

Genn, H., Fenn, P., Mason, M., Lane, A., Bechai, N., Gray, L., and Vencappa, D. ( 2007 ). Twisting arms: court referred and court linked mediation under judicial pressure , London: Ministry of Justice.

Genn, H., Partington, M., and Wheeler, S. ( 2006 ). Law in the Real World: the Nuffield Inquiry on Empirical Research on Law , London: Nuffield Foundation.

Hawkins, K. (ed.) ( 1997 ). The Human Face of Law: Essays in Honour of Donald Harris , Oxford: Clarendon Press.

Hawkins, K. ( 2003 ). Law as Last Resort: Prosecution Decision-Making in a Regulatory Agency , Oxford: Oxford University Press.

Hood, R., in collaboration with Cordovil, G. ( 1992 ). Race and Sentencing: a Study in the Crown Court: a Report for the Commission for Racial Equality , Oxford: Clarendon Press.

Law Commission ( 2008 ). Encouraging Responsible Renting , London: Law Commission.

Leggatt, Sir A. ( 2001 ). Tribunals for Users—One System, One Service Report of the Review of Tribunals , London: Department for Constitutional Affairs.

Lloyd-Bostock, S. ( 2001 ). “ The Effect on Magistrates of Knowing a Defendant's Criminal Record, ” Evidence of Bad Character in Criminal Proceedings , (Appendix A), (LawCom 273), London: HMSO.

Mason, P., Hughes, N., with Hek, R., Spalek, B., and Ward, N. ( 2009 ). Access to Justice: a review of existing evidence of the experiences of minority groups based on ethnicity, identity and sexuality , London: Ministry of Justice.

McCrudden, C. ( 2006 ). “ Legal Research and the Social Sciences, ” Law Quarterly Review 122: 632–50

Moorhead, R. and Sefton, M. ( 2005 ). Litigants in person: Unrepresented litigants in first instance proceedings , London: Department for Constitutional Affairs.

Mulheron, R. ( 2008 ). Reform of Collective Redress in England and Wales: A Perspective of Need , London: Civil Justice Council.

Partington, M. ( 1986 ). “The Restructuring of Social Security Appeal Tribunals: a Personal View,” in C. Harlow (ed.) Public law and politics: Essays in Honour of Prof. J.A.G. Griffith , London: Sweet and Maxwell.

Partington, M. (ed.) (2001). The Leggatt Review of Tribunals: academic seminar papers , Bristol: Bristol Centre for the Study of Administrative Justice.

Partington, M. and Harris, M. (eds.) ( 1999 ). Administrative justice in the 21st century , Oxford: Hart.

Partington., M., Kirton-Darling, E., and McClenaghan, F. ( 2007 ). Empirical Research on Tribunals: An Annotated Review of Research Published between 1992 and 2007 , London: Administrative Justice and Tribunals Council.

Paterson, A. and Genn, H. ( 2001 ). Paths to Justice: Scotland , Oxford: Hart.

Pleasence, P. with Balmer, N. and Buck, A. ( 2006 ). Causes of action: civil law and social justice, incorporating findings from the 2004 English and Welsh Civil and Social Justice Survey (2nd edn.), London: Stationery Office.

Robson, W.A. ( 1951 ). Justice and administrative law: a study of the British constitution (3rd edn.), London: Stevens and Sons.

Shute, S., Hood, R., and Seemungal, F. ( 2005 ). A fair hearing?: ethnic minorities in the criminal courts , Uffculme: Willan Publishing.

Twining, W. ( 1994 ). Blackstone's Tower: Discipline of Law , London: Sweet and Maxwell.

Twining, W. ( 2009 ). General Jurisprudence: Understanding Law from a Global Perspective , Cambridge: Cambridge University Press.

Whatmore, S. ( 2002 ). Hybrid Geographies: Natures Cultures Spaces , Newbury Park, CA: Sage.

Woolf, Lord H. ( 1996 ). Access to justice: final report to the Lord Chancellor on the civil justice system in England and Wales , London: HMSO.

Comments on this chapter may be sent to [email protected] .

Reports on the success of the program can be found at 〈 http://www.frst.govt.nz/results/success-stories 〉.

See 〈 www.morst.govt.nz/funding/how/ 〉.

See 〈 http://www.arc.gov.au/ 〉.

See 〈 http://www.nrc-cnrc.gc.ca/eng/index.html 〉.

See 〈 http://www.nsf.gov/about/ 〉.

An overview of the seven research councils is available at 〈 http://www.rcuk.ac.uk/default.htm 〉.

An introduction to the research activities of the EU can be found at 〈 http://ec.europa.eu/research/index.cfm?lg=en 〉.

See generally, for the UK, 〈 http://www.rcuk.ac.uk/innovation/ktportal/default.htm 〉.

For an introduction to the Government Office for Science, see 〈 http://www.dius.gov.uk/partner_organizations/office_for_science 〉.

See 〈 http://www.civilservice.gov.uk/networks/professional/gsr/index.aspx 〉. For operational research, see 〈 http://www.operational-research.gov.uk/recruitment/ 〉.

For information about the Council, see 〈 http://www.cst.gov.uk/ 〉.

See 〈 http://www.scotland.gov.uk/topics/research 〉.

I write here in a purely personal capacity. My views are not to be taken as representative of any of the bodies with which I have been associated.

Originally the Legal Aid Board Research Unit. See: 〈 http://www.lsrc.org.uk/index2.htm 〉.

See 〈 http://www.justice.gov.uk/about/docs/personal-injury-claims-road.pdf 〉.

Available at 〈 http://www.civiljusticecouncil.gov.uk/files/collective_redress.pdf 〉.

See: 〈 http://www.civiljusticecouncil.gov.uk/files/Improving_Access__to_Justice_through_ Collective_Actions.pdf 〉(2008)

See Executive Summary in 〈 http://www.clrc.gov.au/www/agd/agd.nsf/Page/Publications_FederalCivilJusticeSystemStrategyPaper-December2003 〉.

Published online by the Administrative Justice and Tribunals Council at 〈 http://www.ajtc.gov.uk/publications/179.htm 〉.

Tribunals, Courts and Enforcement Act 2007, sched 7 para 13(1)(e).

See AJTC, 2008 . In 2007, the Nuffield Foundation committed itself to sponsoring a program of research into administrative justice which, among other objectives, it hopes will influence policy-making. See 〈 http://www.nuffieldfoundation.org/go/grants/accesstojustice/page_480.html 〉.

The research reports from the former Department for Constitutional Affairs are all available at 〈 http://www.dca.gov.uk/research/resrep.htm 〉.

See 〈 http://www.justice.gov.uk/consultations/docs/family-justice-in-view.pdf 〉.

See 〈 http://www.aifs.gov.au/familylawevaluation/ 〉.

Criminal Justice Act 2003, Part 11.

The Cambridge Institute for Criminology was founded in 1959: see 〈 http://www.crim.cam.ac.uk/ 〉. The Oxford Centre for Criminology also has a history going back over 50 years; see 〈 www.crim.ox.ac.uk/welcome/index.htm 〉.

See 〈 http://rds.homeoffice.gov.uk/rds/index.html 〉. An overview of other Home Office research activity, including science research, is at 〈 http://scienceandresearch.homeoffice.gov.uk/ 〉.

See 〈 http://www.ojp.usdoj.gov/bjs/funding.htm 〉.

See 〈 http://www.justice.gc.ca/eng/pi/rs/date.cfm 〉.

See 〈 http://www.rand.org/icj/about/ 〉.

From where the Journal of Empirical Legal Studies is edited.

See 〈 http://www.americanbarfoundation.org/index.html 〉.

See 〈 http://www.csls.ox.ac.uk/ 〉.

The early research reports are at 〈 http://www.dca.gov.uk/research/resrep.htm 〉 current project reports are at 〈 http://www.justice.gov.uk/publications/research.htm 〉.

See 〈 http://www.nuffieldfoundation.org/ 〉.

See 〈 http://www.scotland.gov.uk/Topics/Research/by-topic/crime-and-justice 〉 for information about their research on crime and justice (including civil justice) and an archive of published empirical research on law.

See, for example, the Law and Justice Foundation of New South Wales—〈 http://www.lawfoundation.net.au/ 〉 or the Law Foundation of Ontario—〈 http://www.lawfoundation.on.ca/ 〉. In the current economic climate this does not represent a significant source of income.

The Centre for Empirical Research in Law at University College London may start to change this: see 〈 http://www.ucl.ac.uk/laws/socio-legal/index.shtml 〉.

One of the principal reasons for establishing the Legal Empirical Research Support Network—an Internet support facility for empirical legal researchers—was to provide new researchers with a support network of scholars with whom they could share concerns and experience: see 〈 http://www.lersnet.ac.uk/ 〉.

Mavis Maclean, formerly of the Centre for Socio-Legal Studies in the University of Oxford, more recently director of the Oxford Centre of Family Law and Policy: see 〈 http://www.spsw.ox.ac.uk/research/groups/oxflap.html 〉.

For details, see 〈 http://www.lse.ac.uk/collections/law/sls/sls.htm 〉.

See 〈〈 http://www.ssrn.com/ 〉.

Centre for Analysis of Risk and Regulation: see 〈 http://www.lse.ac.uk/collections/CARR/aboutUs/Default.htm 〉.

The Regulatory Institutions Network within the ANU College of Asia and the Pacific: 〈 http://regnet.anu.edu.au/program/aboutus/ 〉

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  1. Making the Case for Case Studies in Empirical Legal Research

    Making the Case for Case Studies in Empirical Legal Research Authors: Aikaterini Argyrou Abstract This is a contribution to the scholarly discussion concerning the limited use of the case study qualitative method in support of legal research.

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    Argyrou, Aikaterini, Making the Case for Case Studies in Empirical Legal Research (December 12, 2017). Utrecht Law Review, Vol. 13, No. 3, p. 95-113, 2017, Available at SSRN: https://ssrn.com/abstract=3128262 Download This Paper Open PDF in Browser 0 References 0 Citations

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    Title: Making the Case for Case Studies in Empirical Legal Research Author: Aikaterini Argyrou Description: Article, 19 pages. Subject: Legal Research, Qualitative Research Publish Date: - - DOIs: https://doi.org/10.18352/ulr.409 Language: English Location: online | Click Here Download

  7. PDF Law's Reality: Case Studies in Empirical Research on Law ...

    law.1 During 2005, during the consultation stage of the inquiry, many people who spoke to the inquiry team said they were keen to do empirical research on law, but felt they were not equipped to do it. If lawyers, they feared that they did not have the requisite understanding of social science research

  8. Stumbling Blocks in Empirical Legal Research: Case Study Research · Law

    Stumbling Blocks in Empirical Legal Research: Case Study Research Search articles of Law and Method Introduction Such legal research employs an empirical method to draw inferences from observations of phenomena extrinsic to the researcher.

  9. Making the Case for Case Studies in Empirical Legal Research

    It demonstrates the use of the case study qualitative method in the context of an empirical legal research project, which examines stakeholder participation in the governance of ... read more Initially, a scholarly discussion concerning the content of interdisciplinarity and the foundations of empirical legal research sets the scene.

  10. The Use of Case Studies in Law and Social Science Research

    This article reviews classic and contemporary case study research in law and social science. Taking as its starting point that legal scholars engaged in case studies generally have a set of questions distinct from those using other research approaches, the essay offers a detailed discussion of three primary contributions of case studies in legal scholarship: theory building, concept formation ...

  11. Making the Case for Case Studies in Empirical Legal Research

    In addition, the journal welcomes research in which classic law is brought face to face with not strictly legal disciplines such as philosophy, economics, political sciences and public administration science.The journal was established in 2005 and is affiliated to the Utrecht University School of Law. ... Making the Case for Case Studies in ...

  12. Case Study Research

    Argyrou, A. (2017) Making the Case for Case Studies in Empirical Legal Research. Utrecht Law Review, Vol.13 (3), pp.95-113 Flyvbjerg, B. (2006.) Five Misunderstandings about Case-Study Research, Qualitative Inquiry 12 ( 2), 219-245. Gerring, J. (2004) What Is a Case Study and What Is It Good for? American Political Science Review 98 ( 2), 341-354.

  13. Harvard Empirical Legal Studies Series

    Overview. The Harvard Empirical Legal Studies (HELS) Series explores a range of empirical methods, both qualitative and quantitative, and their application in legal scholarship in different areas of the law.It is a platform for engaging with current empirical research, hearing from leading scholars working in a variety of fields, and developing ideas and empirical projects.

  14. The Oxford Handbook of Empirical Legal Research

    The phrase "empirical legal research" in the title, The Oxford Handbook of Empirical Legal Research, is designed both to reflect and to celebrate the healthy pluralism of empirical approaches to the study of law and legal phenomena. Keywords: empirical legal studies, empirical investigation, legal systems, ELS movement, policing.

  15. Getting Started

    Empirical Research in Law - International Law as a Case Study, Program at the American Association of Law Libraries Annual Meeting (July 10, 2006) Funding for Empirical Legal Research Conducting empirical research often involves significant costs, including the costs associated with collection or accessing data.

  16. Empirical Research in Law

    Empirical research in law involves the study, through direct methods rather than secondary sources, of the institutions, rules, procedures, and personnel of the law, with a view to understanding how they operate and what effects they have.

  17. Introduction

    The phrase "empirical legal research" in the title, The Oxford Handbook of Empirical Legal Research, is designed both to reflect and to celebrate the healthy pluralism of empirical approaches to the study of law and legal phenomena. American legal realists were, perhaps, the first to appreciate the value and importance of, and to promote ...

  18. Making the Case for Case Studies in Empirical Legal Research

    The use of the case study qualitative method is discussed in the context of an interdisciplinary research project, which examines legal forms and stakeholder participation in. Recently Searched No results found Tags ... Making the Case for Case Studies in Empirical Legal Research ...

  19. Journal of Empirical Legal Studies

    Journal of Empirical Legal Studies (JELS) fills a gap in the legal and social science literature that has often left scholars, lawyers, and policymakers without basic knowledge of legal systems.Always timely and provocative, studies published in JELS have been covered in leading news outlets such as the New York Times, the Wall Street Journal, the Economist, Forbes Magazine, the Financial ...

  20. 39 Qualitative Approaches to Empirical Legal Research

    Q ualitative research methods are often identified with the social sciences and humanities more generally than with the discipline of law in particular. That is not to say that lawyers do not make use of qualitative research methods in their own practice. Many common law practitioners are unaware that they undertake qualitative empirical legal research on a regular basis—the case-based ...

  21. Case Study Methodology of Qualitative Research: Key Attributes and

    1. Case study is a research strategy, and not just a method/technique/process of data collection. 2. A case study involves a detailed study of the concerned unit of analysis within its natural setting.

  22. 42 Empirical Legal Research and Policy-making

    Empirical legal research (ELR) seeks to understand and explain how law works in the real world. Empirical research on law has become a recognized part of the social science research environment and the results of empirical research are central to an academic analysis of law.

  23. LibGuides: Empirical Legal Research Resources: Treatises

    Research Handbook on Empirical Studies in Intellectual Property Law by Estelle Derclaye (Editor) Call Number: K1401 .R4 2023. ISBN: 9781802206203. Publication Date: 2023-07-14. This comprehensive Research Handbook explores empirical legal studies of intellectual property law.