Empirical Legal Research
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This document discusses various types of empirical legal research resources that can be used to support lawyering functions. It provides examples like the Brandeis brief and researching a sugar plant explosion. It also lists specific resources for finding government information, statistics, information on companies and institutions, medical information, and public records. The document concludes by providing a phone number for the ultimate empirical research source.
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Empirical Legal Research
- 1. EMPIRICAL LEGAL RESEARCH Saskia Mehlhorn, Visiting Foreign and International Law Librarian
- 2. DEFINITION
- 4. EXAMPLES
Editor's Notes
- Lawyering functions are advocacy, litigation, counseling, meditation, and lobbying.
- Empirical legal research can best be explained with examples where its use was beneficial to the successful conclusion of a case.
- In 1908 Louis Brandeis chose to represent the state of Oregon in the case of Muller v. Oregon , to the U.S. Supreme Court. At issue was whether it was constitutional for a state law to limit the hours that female workers could work. Up until this time it was considered an "unreasonable infringement of freedom of contract" between employers and their employees for a state to set any wages or hours legislation. Brandeis, however, discovered that earlier Supreme Court cases limited the rights of contract when the contract had "a real or substantial relation to public health or welfare." He therefore decided that the best way to present the case would be to demonstrate through an abundance of workplace facts, "a clear connection between the health and morals of female workers" and the hours that they were required to work. To accomplish this, he filed what has become known today as the "Brandeis Brief." Here, he presented a much shorter traditional brief, but included more than a hundred pages of documentation, including social worker reports, medical conclusions, factory inspector observations, and other expert testimonials, which together showed a preponderance of evidence that "when women worked long hours, it was destructive to their health and morals." The strategy worked, and the Oregon law was upheld. Justice David Brewer directly credited Brandeis with demonstrating "a widespread belief that woman's physical structure and the functions that she performs ... justify special legislation."
- Today a growing importance of empirical legal research can be found especially in litigation surrounding environmental and health issues, and potentially hazardous working conditions. One recent example is the explosion at the Imperial Sugar plant in GA, that was caused by a chain of dust-fueled fireballs and killed 14 people. Based on empirical legal research investigators concluded in their report that was published at the end of last month (September 2009) that they found written warnings of explosive dust hazards in refinery memos from the 1960s, and that the deaths likely could have been prevented by routine housekeeping.
- These are almanacs, fact books, general and specific dictionaries and encyclopedias that can be used for a quick overview and as a lead to further information. Research guides especially are very useful as they contain not only information but an extensive bibliography
- The State and Federal governments have put in a lot of effort to allow citizens and researchers to find information about agencies within the government and so on.
- U.S. Government Manual – search for EPA
- Results for EPA search – click on summary
- EPA – address, directors, etc.
- GPO's Federal Digital System (FDsys) provides public access to Government information submitted by Congress and Federal agencies and preserved as technology changes.
- TRAC is a database that requires membership and is available through the library website.
- The Transactional Records Access Clearinghouse, short “TRAC” provides comprehensive information about staffing, spending, and enforcement activities of the federal government.
- The U.S. government collects and compiles statistics on an enormous number of subjects. The American Census, for example, is a goldmine of statistical information and collected every 10 years. Many countries of the world produce statistics on economic and social conditions as well as other statistical information. Keep in mind that time lags are normal for many kinds of statistics, such as trade statistics collected by the United Nations and you may find that none of the statistical information you are working with is as up to date as you would like. Statistics and other quantitative methods are commonly used in legal cases, especially where the issues involve questions of social or public policy, so can statistics on hazardous waste generation and number of locations support environmental cases. Let’s take a look at some of the sources:
- http://www.census.gov/ mainpage
- http://factfinder.census.gov/home/saff/main.html?_lang=en
- http://www.census.gov/ mainpage Think back on the sugarplant refinery accident and let’s assume that we are collecting data about hazardous waste conditions. We search for “hazardous waste” and come to this web site ->
- Now let’s take a look at some of the international sites:
- http://epp.eurostat.ec.europa.eu/portal/page/portal/eurostat/home/ Again – let’s search hazardous waste ->
- Hazardous Waste generated in EU
- And this is what the UN has to offer and here we get another shot at hazardous waste
- Hazardous Waste generated worldwide Move on to company, institution and people search
- Information about business enterprises or institutions and associations is a common need in legal practice. For example, a lawyer may need to locate the name, address, and names of officers of a company in order to prepare a complaint and arrange service. The financial status and history of a company may be central to a securities class action suit. Information about companies may be collected as part of a law firm's business development program. Company information is widely available in many formats: books, periodicals, on the Internet, and electronic databases (including Lexis and Westlaw and the freely available EDGAR on sec.gov). EDGAR stands for Electronic Data Gathering, Analysis, and Retrieval system. Before you begin your research on a company, find out if it is privately owned or publicly held (i.e., traded on a stock exchange). In general, it is easier to find information on publicly-held companies because they are required to report certain financial information to the Securities and Exchange Commission (SEC) and to their shareholders. Institutions and associations can be researched through the Encyclopedia of Associations and directories on Westlaw and Lexis.
- Sec.gov point to EDGAR
- Hoover’s And on to medical
- Lawyers working on personal injury or medical malpractice cases need information about medical matters. This ranges from standard medical reference works on anatomy, pharmacology, diagnosis, techniques and technology, to specialized texts on forensic medicine and standards of care and treatment. It is also necessary to be able to locate expert witnesses and evaluate their qualifications. The need for medical research may also arise in other types of cases. In the employment law context, medical research may be necessary to support a plaintiff's disability-related claims or an employer's anti-smoking rule. In the environmental context, a lawyer might need to know the health effects of toxic wastes. Product liability cases such as tobacco litigation often require extensive medical research. In a criminal case, the defense may need psychiatric research to explain a client's actions and the prosecution may need medical research to show that the defendant inflicted injuries that caused the victim's death. Medical data can be found in handbooks and dictionaries that offer definitions, diagnostic criteria, recommended drug dosages, indications and contraindications, possible side effects and problems, and other quick-reference information. Medical databases can also provide convenient access to information such as clinical trial results, research reports, news articles, and other medical-related literature.
- Go into cdc and think back “hazardous waste” –click environmental health ->
- Managing hazardous material incidents ->
- Where's the money? And how much money is available? If you are contemplating suing for damages, you will want to know whether the potential defendant has significant assets or whether that person is "judgment proof." This is also known as looking for the "deep pocket." Similarly, if you have obtained judgment against somebody, you will want to locate property in order to assure execution in satisfaction of the judgment amount. Once it is determined that property exists, it should be checked whether there are liens against the property and whether those liens are superior to those of your client. Another question might be whether the defendant you are considering is being sued by others. These and other questions can be answered by using private services that report on public records of property ownership and lien filings. Public records can be checked on Lexis ->
- Another possibilty is to check the county website ->
- www.hcad.org This type of website is available for most counties. A similar set-up is offered for business search ->
- This is the TX search window, similar once are available for other states and can be used to verify whether a corporation, company, entity is registered, it’s standing and the directors. Please see more on the handout and don’t forget ->