The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Developing law's methodology
Last year, my colleagues Adam Chilton, Anup Malani and I worked with the University of Chicago Law Review to convene a symposium on legal methodology. Speaking at least for myself, I think law does and should have its own distinct methodology, and that if that methodology is not rigorously explored and defended, law is at risk of being overtaken by other disciplines whose methodologies seem more rigorous—whether or not that is really so.
In any event, the symposium issue is now online. Here is an excerpt from our introduction:
This issue of The University of Chicago Law Review brings together leading scholars to discuss developing best practices for legal analysis. The goal of its organizers, however, is somewhat less modest: to encourage a movement that develops a positive legal methodology.
Years of reading legal scholarship have convinced us that scholars ought to devote more attention to positive methodology-figuring out how to tell what the law is-something that may seem like second nature to most lawyers, but that often relies on intuition and armchair persuasion.
To be sure, legal scholars have over time imported theory and methods from other fields-including economics, history, political science, psychology, sociology, biology, and anthropology-to make normative claims more rigorous. But most of that arbitrage is used to support or test policy implications of a law, not to determine what the law is. And in any event, we think law can and should contribute its own distinctive methodology, rather than being colonized by other disciplines. The movement we desire would meet this need by developing methods to determine what the law is and how best to apply (perhaps normatively motivated) methods of legal interpretation or analysis.
Our own contribution to the symposium was on doctrinal analysis and "systematic reviews," with special application to my own prior work on whether originalism is "our law." But the symposium volume includes a ton of other great pieces. The volume includes:
- Articles on the methodology of historical gloss by Curtis Bradley, and on originalist methodology by Lawrence Solum.
- Articles on statutory interpretation by Frank Easterbrook and Abbe Gluck.
- Cass Sunstein and Adrian Vermeule's "The Unbearable Rightness of Auer."
- Richard Fallon on reflective equilibrium and interpretive methodology.
- Two articles on concepts, one by my colleagues Tom Ginsburg and Nick Stephanopoulos, and the other by my part-time colleague Richard Epstein.
- Frederick Schauer and Barbara Spellman on analogy.
- Articles on qualitative methods for example selection by Katerina Linos and Melissa Carlson, and on a quantitative approach to Restatements of the Law by Oren Bar-Gill, Omri Ben-Shahar, and Florencia Marotta-Wurgler.
- And Richard Posner, on "Legal Research and Practical Experience."
I hope you'll find something in it worth reading.