Building Theory Through Empirical Legal Studies Richard Lempert, Eric Stein Distinguished University Professor of Law and Sociology, emiritus, University of Michigan

What are we theorizing? Everything: E = MC 2 Bush v. Gore stands for the proposition that … Everything but the above: Extra legal force that affect legal decisions Effects of law and its enforcement Law as a model for other social institutions Etc.

Is the Title Redundant? How else does one do theory? Physics Envy First theory then data – Einstein and Eddington Deduce from mathematical logic Einstein had it easy. Subatomic particles do not have minds of their own. We care about the tails.

A Bad Influence The Grand Theory Tradition Marx, Weber, Durkheim, Parsons, Wallerstein,Black As much perspective as theory – Implications not formally derived – Conceptually hard to operationalize – Predictions hold only to some degree for some cases – Possible tests of implications not at theory scale Insights and tropes – Influences without incorporation

Middle Range Theory Resource Mobilization, Labeling, Differential Association, Social Movement, etc. – Closer to the data. More specific implications. Easier to operationalize. Greater chance of formal treatment. – Differences from grand theory inconsistent and often slight. Theories compete for same turf. In and out of style but seldom absorbed or replaced. – Partial explanations.

Micro Level Theories Made for testing – Precise derivations from theory – (Relatively) Easy to operationalize hypotheses – Sophisticated formal modeling But – Everything has a theory – Theory or explanation

T Capital T Theory – Self conscious social science explanation. Generalizable motivation for or result of research. Derived hypotheses allow theoretically informed investigation. Optional. Small t Theory – Conscious or subconscious expectations. Reflects world view (e.g. what measures what; how variables relate; what to observe). Often mimetic. Unavoidable. Two Types of Theory

Theory Construction: A Priori or Post Hoc Before is better – Tests have chance to fail. We (humans) make sense of randomness. – 3, 7, 11 __ 20 – True of methods as well The more diverse our attempts the more likely we are to find something. – Analogous to significance with many variables

EDA Makes Sense Questions and concerns. – How much? – Can we test results on independent sample? – Sensitivity testing? – What to disclose? – Do results make theoretical sense? – What do I want to find?

Inductive Approaches to Data Virtues – Grounded in reality. – Sorts data. – Opens the eyes and imagination. – Starts dialogue with theory. Cautions – Data quality crucial. – Requires reasonable small t theories. – Replication essential. – Avoid “dustbowl empiricism.”

Uses of Theory Search for Evidence. Assess empirical research. Important for Policy

Good Theories Suggest Good Tests Durkheim on Egoistic Suicide (Stinchcombe) – A higher degree of individualism in a group causes higher rates of suicide in group. Do Protestants have higher suicide rates than Catholics? Do Bachelors have higher rates of suicide than men married with families. Do highly educated urban, commercial regions have higher rates of suicide than traditional rural areas? – Are Jews an exception? Ellickson on Coase Theorem

Theoretical Warning Signs Expect robustness to theory-irrelevant variation. – Ehrlich and the death penalty (longitudinal). Expect theoretically relevant variables to be there absent a good reason why not. – Ehrlich and the death penalty (cross-sectional) Expect “side variables” to make theoretical sense. – Lott and Mustard on right to carry.

Policy and Theory Theoretically based policy should demand evidence. Evidence based policy should (almost always) demand theory. – Sherman and Berk and arrest for spouse abuse. Importance of mechanism or Milwaukee is not Minneapolis (and to leave a woman is not to stop hitting women.)

Bottom Line on Policy, Research and Theory Policy makers should not be choosing between reliance on theory and reliance on the results of empirical investigation. Instead empirical investigation should be informing theory and theory should be suggesting areas where it is in need of refinement through further investigation. If theory is the foot that I would on balance want to see in front, it is not less important that there be an empirical foot as well to stand on.

A look at the Future Complexity, dynamic models and a different role for theory – Experimental design – Network models – Agent-based models – Games and Simulations