The use of empirical methods in legal scholarship is still relatively new, but is gaining in popularity at a rapid pace. Methods more commonly associated with the social sciences are now being utilised to study legal procedures and legal theory. Slowly but surely, social scientists are finding their way to law schools where they can conduct research in close collaboration with legal scholars, which then gets published in journals such as ‘Psychology, Public Policy, and Law’ and the ‘Journal of Empirical Legal Studies’. Professors in the social sciences who are working at law schools are much more common in the United States than is the case in the Netherlands, but we are slowly following suit.
Personally, I applaud this development as I believe the methodological tools social scientists are equipped with provide excellent opportunities to study questions about how the law works in practice, rather than how the law ought to work. And now, to further develop the field of ‘Empirical Legal Studies’, there’s a new kid on the block.
On 28 October 2017, Yale Law School hosted the very first workshop in the exciting new field called ‘Experimental Jurisprudence’; a field that also goes by the name of ‘X-Jur’, mimicking the X-Phi abbreviation that denotes the also relatively new field of Experimental Philosophy. Basically, Experimental Jurisprudence is an emerging field on the intersection of legal scholarship, philosophy and (cognitive) psychology.
The field combines the experimental methods of cognitive sciences with the concepts developed in philosophy to investigate issues relevant to legal practice. One might say that Experimental Jurisprudence follows the tradition of (New) Legal Realism, in that research within X-Jur investigates the extra-legal factors that influence legal theorising and legal judgments and decisions.
Topics Workshop X-Jur at Yale
At the workshop, Roseanne Sommers from Yale University presented her fascinating work on the relationship between deception and intuitions about consent. Why do people consider incapacity and coercion, but not deception, to undermine consent for a particular decision?
Christian Mott, also from Yale, presented his work on mens rea (‘guilty mind’) ascriptions. His research showed that the way mens rea questions are framed influences jurors’ judgments. For example, when confronted with a particular case, jury eligible participants judged a defendant to have knowingly committed the crime to a greater extent when the question was asked in isolation compared to when participants were asked to judge whether the defendant had acted knowingly or recklessly.
Kristen Bell (Yale University) talked about her important and impactful work on the parole process for juvenile lifers. One of the central questions was whether culpability is really conceptually distinct from dangerousness; a question that is particularly interesting when looking at the underlying assumptions of the models predicting the chance of recidivism.
Other presentations at the workshop addressed the influence of situational factors on action attribution and ascriptions of causality (Mihailis Diamantis, University of Iowa), the potential of the communicative theory of punishment as a middle ground between purely backward looking and purely consequentialist theories (Eddy Nahmias, Georgia State University), and finally, the fascinating role of the twin-earth thought experiment in thinking about legal categorisation (Kevin Tobia, Yale University). It was inspiring (and admittedly also somewhat surprising) to sit in a room filled with people who are all fully engaged and stimulated by the question whether tomatoes are fruits or vegetables (please see the United States Supreme Court verdict in the case NIX v. HEDDEN for an initial answer to this question).
X-Jur at Leiden
Even though much of the exciting work within Experimental Jurisprudence, and Empirical Legal Studies more broadly, is being done in the United States, one does not need to travel far to find prime examples of such work.
At our own university in Leiden, research along similar lines is being conducted by the Institute of Criminal Law and Criminology. In these fields, empirical methods (e.g., experimental studies) are possibly more commonplace than in other areas of the law. However, excellent examples of research that could be considered experimental jurisprudence can be found at other departments as well. Professor Willem van Boom and PhD candidate Jouke Tegelaar (Civil Law and Financial Law), for example, recently published an elegant experimental study demonstrating the benefits of using more simple declaration forms in third-party appeals (please find the article here).
At the department of Business Studies, where I am pursuing my PhD, we also advocate the empirical investigation of how the law works in practice. In collaboration with professors Van Boom, Van den Bos and Dechesne, Professor Van der Rest conducted research on the effects of the framing of disclosure messages relating to price discrimination on consumers’ buying intentions. Furthermore, the newly-founded Centre for Business & Liability (a ‘joint venture’ of the Department of Business Studies and the Company Law Department) has several research projects with a strong empirical focus. Personally, I have a background in experimental psychology and currently conduct research on biases in legal judgments in the context of business failure and director liability.
Call to action
Considering the importance and relevance of the work that is being done under the flag of ‘Experimental Jurisprudence’, I foresee a prosperous future for this movement and was honoured to have been invited to the first ‘official’ X-Jur workshop at Yale. It was inspiring to witness scholars from different disciplines find common ground, collaborate, and help each other’s work move forward. Knowing that researchers using empirical methods are typically quite scarce at a law school, I believe it is important to build a network of researchers doing experimental/empirical research at our faculty to discuss ongoing research projects, collaborate and to build on each other’s work. Therefore, I invite everyone who is curious about this new field called Experimental Jurisprudence to get in touch so we can start creating a platform for us to share our ideas, foster collaboration and disseminate our work.