Professor Bartlett has written a bold article pushing back against what might be called inchoate or half-hearted empiricism. The half-hearted empiricist recognizes the value of empirical evidence to help solve a legal problem but, for whatever reason, fails to acknowledge the complexity and uncertainties of the evidence and as a result offers haphazard prescriptions. Professor Bartlett’s article demonstrates what a whole-hearted commitment to empiricism looks like: it involves an engagement with primary sources rather than a reliance on secondary sources (or tertiary sources in the form of law review summaries of secondary sources), a review of research relevant to a problem rather than a review of a subset of research focused on one particular aspect of a problem, and a struggle to find usable prescriptive lessons in a literature that ranges from basic-level research with little obvious real-world application to applied research that can be so situation-specific that its generalizability can be questioned. Whole-hearted empiricism is hard, messy work, as well as a frustrating undertaking. Unlike theory- or model-based approaches to policy that self-consciously simplify the world and avoid many empirical complications, an evidence-based approach must confront empirical complexities and try to find meaning in the midst of ever-changing empirical evidence, imperfect studies, and contradictory findings located among the fragmented social sciences. Consequently, rarely will consensus exist on the prescriptive meaning of the assembled evidence. It should thus not be surprising that, after saying a few words on the dangers of half-hearted empiricism, I raise some questions about the empirical conclusions and recommendations offered by Professor Bartlett and suggest that her attempt to foster good intentions might more usefully be focused on firms rather than managers.
Sept 3, 2013
95 Va. L. Rev. Online 109