November 24, 2009

Are ADR and Empirical Legal Studies Cousins ?

By Art Hinshaw

I am back in the office after attending the Fourth Annual Conference on Empirical Legal Studies this past weekend at the USC Gould School of Law, where I presented this draft of my paper on attorney negotiation ethics.   Thanks to Russell Korobkin for thoughtful remarks as an official commenter on the paper and to those who made various suggestions during the discussion portion.  I was happy to have this opportunity to get great feedback on my project, and I thought the conference as a whole was first rate.  Not so shockingly, others agree as you can see  here, here, and here.  I am grateful to Susan Franck for bringing this opportunity to my attention.  (I owe you a drink or two at the ABA DR Section Conference).

During the keynote address and a couple of follow-up conversations, I was struck by a perceived flaw of the conference itself – this is a field of study coalesced around a process instead of a subject matter.  Sounds familiar doesn’t it?  Had I fallen into a hole in the time/space continuum and ended up at an early ADR conference?  ADR is nothing but process – negotiation, arbitration and mediation – and it’s difficult to discuss them without have some other substantive field attached.  While we may specialize in divorce/family matters, international or commercial arbitration, or something else, our field continues to thrive and learn from each other.  And like us, most empirical legal scholars approach the process from a variety of view points – economics, psychology, sociology, and those of us with no formal training in the area (I’m in this group).  And each group approaches this process differently with different assumptions and appreciations for what is important.  And, like those of us who work in and study ADR, we all learn from each other.  As result, the empirical legal studies movement will do and is doing quite fine, thank you.  In fact, it is the “in thing” now, in part because of the number of PhDs who are entering legal academia.  

To address “the flaw” head on, I happen to think the lack of a specific subject matter is a strength in this field because it allows for good cross-pollentation.  Academia is consistently criticized for the silo effect - we are disconnected from colleagues in other fields who study the same issues.  While we give good lip service to  interdisciplinary research, that is more of an aspiration than a reality.  This conference is one of the best at breaking down those silos.  I don’t know whether attendees see this conference as a place to look for future collaborators, but I expect many scholars come away thinking they’ve met potential co-authors on future works.

One final thought – does the qualitative/quantitative debate in empirical circles remind anyone else of the directive/illictive (aka facilitative/evaluative) debate in mediation?  Yup, I thought so.

Last 5 posts by Art Hinshaw

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Comments

  • Joe says:

    Well, a process can easily be the topic of conversation. With ADR, we need to address how this changes our legal system, because it does.

  • Nancy Welsh says:

    Hi Art:

    How wonderful to think of procedures–in dispute resolution, decision making and empirical research–as binding various substantive areas together. That trans-substantive vision also inspired the development of the Federal Rules of Civil Procedure. There, however, the vision is breaking down. What does this portend for those of us involved in dispute resolution and empirical research?

    And should I infer anything from your spelling of “elicitive” as “illicitive?”

    With a smile,

    Nancy

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