Empirical Legal Research: A Guidance Book for Lawyers, Legislators and Regulators

328 Pages·2016·4.426 MB·English

by  Frans Leeuw, Hans Schmeets

Empirical Legal Research

Empirical Legal
Research
A Guidance Book for Lawyers, Legislators
and Regulators
Frans L. Leeuw
Professor of Law, Public Policy and Social Science Research,
Maastricht University; Faculty of Law and Director, Security
and Justice Research Center (WODC), the Hague, the
Netherlands
with
Hans Schmeets
Professor in Social Statistics, Maastricht University and
Senior Researcher, Statistics Netherlands, the Netherlands
Cheltenham, UK • Northampton, MA, USA
© Frans L. Leeuw with Hans Schmeets 2016
All rights reserved. No part of this publication may be reproduced, stored
in a retrieval system or transmitted in any form or by any means, electronic,
mechanical or photocopying, recording, or otherwise without the prior
permission of the publisher.
Published by
Edward Elgar Publishing Limited
The Lypiatts
15 Lansdown Road
Cheltenham
Glos GL50 2JA
UK
Edward Elgar Publishing, Inc.
William Pratt House
9 Dewey Court
Northampton
Massachusetts 01060
USA
A catalogue record for this book
is available from the British Library
Library of Congress Control Number: 2015957856
This book is available electronically in the
Law subject collection
DOI 10.4337/9781782549413
ISBN 978 1 78254 939 0 (cased)
ISBN 978 1 78254 941 3 (eBook)
Typeset by Servis Filmsetting Ltd, Stockport, Cheshire
2
0
Contents
List of figures vi
List of tables vii
1 Introducing empirical legal research and structure of the book 1
2 Roots of empirical legal research: a concise history in 201/4
pages 20
3 Research problems 41
4 Theories and empirical legal research 54
5 Research reviews and syntheses 82
6 Research designs: raisons d’être, examples and criteria 101
7 Data collection methods 130
8 Analyzing and visualizing quantitative and qualitative data 158
9 Transferring research results to legal professionals, utilization
and the fact-v alue dichotomy 220
10 Empirical legal research: booming business and growth of
knowledge? 236
References 260
Index 301
v
Figures
1.1 The empirical cycle 15
2.1 The roots of empirical legal research 37
3.1 Development of civil cases in the Netherlands in total
numbers (1992–2012) 50
4.1 Coleman’s Boat: a model linking micro and macro-
conditions and mechanisms 60
4.2 The basics of Megan’s Law’s program theory 69
4.3 A model of mechanisms underlying ‘naming and shaming’
of sex offenders. A = situational mechanism; B = action-
formation mechanism and C = transformational mechanism 69
4.4 Reconstruction of the underlying intervention theory of the
anticorruption World Bank Institute program on workshops 73
7.1 Examples of databases in the Dutch criminal law chain 135
7.2 An overview of the data warehouse approach 136
8.1 Satisfaction with Dutch democracy by education (n = 1633) 177
8.2 Trust in police and trust in judicial system: scatterplot (n =
28 countries) 183
8.3 Bad to very bad assessed voting and counting stations in 81
elections, 1996–2010 187
8.4 Business bankruptcy per month in the Netherlands (2004–
2014) 193
8.5 User- uploaded activity for Business bankruptcy per month
in the Netherlands. Web Search activity for ‘wwuitkering’
(unemployment benefits) (r = 0.900) 195
8.6 Small- t theory on mechanisms regarding the relationship
between the global financial crisis and bankruptcies 196
8.7a Regular ARIMA model (historical bankruptcies data only) 197
8.7b ARIMA model plus normalized query data as an
independent variable 197
8.8 Coding Form for Relationships: Stakeholders’ Stakes 204
8.9 Visualization of the personal discussion network among
European IP judges belonging to the Venice Forum 212
vi
Tables
4.1 Label, core content and references of theories referred to in
the Handbook of Empirical Legal Research (Cane and
Kritzer, 2010) 63
6.1 Experimental control and experimental results: research on
programmes to reduce crime and delinquency (after Logan,
1972 and Gomm, 2008: Table 1) 124
8.1 Satisfaction with Dutch democracy by gender and education,
2012 (n = 1633) 176
8.2 Trust in other people and (political) institutions, turnout in 28
countries (%) 180
8.3 Trust in other people and (political) institutions, turnout in 28
countries: Spearman’s Rho 182
8.4 Response and non- response in households by variant
incentives 189
8.5 Top queries for bankruptcy time series in Google Correlate 194
vii

1. Introducing empirical legal research
and structure of the book*
1.1 AN APPETIZER
Characterizing empirical legal research (abbreviated as: ELR) for lawyers,
legislators and regulators is not that easy. One reason is the difference
between the way lawyers and ‘empiricists’ think.
While both modes of thinking are grounded in rigorous analysis, lawyers and
empiricists often have different goals and approaches. Legal analysis places
a premium on argumentation and appeals to authority, is frequently geared
toward proving a particular view, is often focused on the particulars of an
individual case, and is directed at reaching a definitive conclusion. In contrast,
empirical analysis places a premium on observation, challenges assumptions, is
oriented toward the testing of hypotheses, is usually focused on describing pat-
terns that operate in the aggregate, and is a continuing enterprise in which new
work builds on that which came before and generates even more questions for
further investigation. (Lawless, Robbennolt and Ulen, 2010:10)
Although this contrast is exaggerated, there are notable differences between
the two types of work.
A second reason why a characterization is difficult is that ELR makes
it necessary to consider topics that students, scholars and practitioners of
law are often not acquainted with. When you hear about empirical legal
research, you probably think about data and how the data was collected.
You will wonder how the (legal or societal) problem at hand was ‘trans-
lated’ into a research(able) problem. One of your colleagues may ponder
the design of the study and the relationship between the ‘legal’ (normative)
part and the ‘social sciences’ part. Can they be bridged? It would not be
bad guesswork to think that discussions were held on what the ‘units of
analysis’ are (offenders, victims, business contract partners, judges, civil
servants, courts, asylum seekers, or internet service providers) and whether
or not ‘we will work with a sample and use statistics’. The same goes for the
researcher-j urist who is given the task to find relevant research evidence
from the past. Finally, on a dog’s day afternoon, there is that young assis-
tant visiting Wikipedia, trying to understand the role of ‘theories’ in the
current project, probably wondering what is meant by the word. Purely by
1