This article proposes a system with which to empirically study unobservable legal concepts. Although empirical legal scholarship is becoming an increasingly important component of legal studies, its usefulness has so far been confined to topics that are directly observable, such as court decisions or crime rates. This limitation has unfortunately prevented the study of many of law’s foundational concepts, such as deterrence, incentives, or freedom, because they are not directly measurable. But this obstacle can be overcome by looking to social sciences, particularly psychology, that have developed mechanisms for assessing concepts like happiness or depression that cannot be directly measured.
This article argues that although the unobservable legal concepts—or “constructs”—that are so critical for law cannot be directly measured, their characteristics can be inferred by studying their tangible effects. For instance, although freedom cannot be directly tested, it has observable consequences such as more diverse behavior that can be studied. Studies of these tangible effects can then provide important information about the unobservable construct—freedom.
My proposed iterative system incorporates four primary stages. First, the development of a theory that is general enough to allow for extensive study, but with enough specificity to provide direction for new experiments. For instance, the utilitarian theory of intellectual property is generalized and provides sufficient room for a wide range of research about “incentives,” but is still specific enough to suggest avenues for future research. Next, researchers must infer from the theory critical hypotheses that have the potential to inform the field, such as a hypothesis that increased copyright protection will lead to more prolific authors and artists. Third, the hypotheses should be tested using different quasi-experimental designs. Finally, the theories should be revised to reflect the new information, such as whether the incentive to create provided by copyright has an infinite lifespan or if it decreases over time. Although the unobservable concept can never be fully known, this system can allow policymakers to be more fully informed when considering important, but intangible, concepts.
- Empirical Legal Scholarship,
- construct validation
Available at: http://works.bepress.com/david_goldman/1/