EMPIRICAL
AND NON-LEGAL RESEARCH

One of the most important functions of a lawyer's job is research. You are most familiar with doing legal research on case law, statutes, and regulations.   Frequently, however, a lawyer must also find empirical or non-legal information to support legal arguments. Examples of this information include statistics, news stories, financial analyses, articles from popular or scholarly periodicals, and information in other disciplines such as medicine, science, technology, or business.

History of Empirical Research

 

For a long time, little empirical and non-legal research was done in support of legal work.  That began to change when Muller v. Oregon, 208 U.S. 114 (1908), came up for argument before the Supreme Court.  Louis Brandeis, later a Justice of the Supreme Court, litigated the Muller case as Attorney General of Oregon.  In support of his argument that factory work hours should be shorter for women than for men, he found and cited to a number of sociological research studies from the United States and Europe. He won the case, and the practice of making non-legal arguments in support of a legal case became known as writing a "Brandeis brief."

 

Over the following years, empirical and non-legal research for legal cases has become increasingly important. For example, the plaintiffs' attorneys in Brown v. Board of Education, 347 US 483 (1954) and 349 US 294 (1955), supported their arguments with studies showing the effects of segregated schools.

 

More recently, the U.S. Supreme Court considered and cited to statistical evidence in their opinions in the University of Michigan affirmative action cases.  See Gratz v. Bollinger, 539 U.S. 244 (2003) and Grutter v. Bollinger, 539 U.S. 306 (2003).  To see examples of how to use statistical research in a brief, you can view the briefs for these cases in Westlaw's SCT-BRIEF database, in Lexis's "U.S. Supreme Court Briefs" link on the "Legal" tab, or as PDF files from Findlaw, at http://supreme.lp.findlaw.com/supreme_court/briefs/index.html

These days, a variety of empirical and non-legal research is used extensively in legal practice.

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