I will use some of the exemplary papers presented at CELS to describe and assess a trend toward more empirical “legal” research—papers that help demonstrate how statistical findings can inform government in the context of institutional decisions within the formal legal system. This research, focusing on the political economy of criminal justice agencies, examines legal decisionmaking under the constraints of constitutional demands, managerial and fiscal challenges, and, sometimes, the peculiar deontological forces that distinguish criminal law from other forms of regulation. Most notably, these studies examine the unavoidable discretion that the legal system invests in officials at key decision points, with special attention to prosecutors—the most important and unexamined of all categories of officialdom. They identify patterns and outcomes at early and low-level stages of adjudication, especially where choices of both means and ends implicate nonutilitarian values. In so doing, this research frames and informs questions for the officials who delegate, supervise, or exercise discretion, but it ultimately cannot answer the questions it poses. Empirical research can provide what can be measured, but criminal law consists of more than just the measurable. At some point, research can do no more than arm decisionmakers with a sharpened sense of the scope and nature of the residual factors that empirics cannot measure with the reassurance of precision.

 

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