The Importance of Being Empirical

Abstract

The Pepperdine Study warrants attention not only for what it says about the exclusionary rule but also for how it says it. I leave to others to comment more directly on the study's findings, specific contributions to our understanding of the exclusionary rule, as well as the usefulness of the authors' proposed civil administrative remedy. My comments, in contrast, dwell on how the authors marshal their evidence and advance their argument. Specifically, I focus on the authors' deployment of data and statistical analyses-rather than theory or anecdotes-to advance their thesis. The Pepperdine Law Review's generous invitation to comment on the Pepperdine Study provides an appropriate opportunity to consider-albeit briefly-the decidedly small but growing subset of legal scholarship that is empirical, take stock of this particular research genre as well as the Pepperdine Study's contribution to it, and articulate a normative argument in favor of increased empirical legal research.

To place the Pepperdine Study into some context, Part II considers the practical and structural factors that work against the production of empirical scholarship by law professors. Despite important impediments, important empirical legal scholarship continues to emerge and at an increasingly rapid rate. Part IlI describes three broad types of empirical legal scholarship and argues that increased attention to it will enhance and complement legal scholarship as a whole. In Part IV the Pepperdine Study is discussed within the context of the small but growing corpus of empirical legal research.