Qualitative Methods for Law Review Writing
Typical law review articles not only clarify what the law is, but also examine the history of the current rules, assess the status quo, and present reform proposals. To make theoretical arguments more plausible, legal scholars frequently use examples: they draw on cases, statutes, political debates, and other sources. But legal scholars often pick their examples unsystematically and explore them armed with only the tools for doctrinal analysis. Unsystematically chosen examples can help develop plausible theories, but they rarely suffice to convince readers that these theories are true, especially when plausible alternative explanations exist. This project presents methodological insights from multiple social science disciplines and from history that could strengthen legal scholarship by improving research design, case selection, and case analysis. We describe qualitative techniques rarely found in law review writing, such as process tracing, theoretically informed sampling, and most similar case design, among others. We provide examples of best practice and illustrate how each technique can be adapted for legal sources and arguments.
I. Imagining Alternatives and Identifying a Puzzle
“[A]ll you really need to have is an ‘explanandum’—a puzzle, paradox, or conundrum about the social world that in one way or another upsets our expectations, and for which there is no ready answer. But this is not at all a trivial accomplishment.”16
Kristin Luker, Salsa Dancing into the Social Sciences: Research in an Age of Info-Glut 55 (Harvard 2008).
For social scientific research, the starting point—and perhaps half the battle—is identifying a puzzle that cannot be easily solved. Legal advocacy training does not highlight this element of puzzlement. In fact, many masterful legal strategists downplay the novelty of their arguments so that courts can more easily accept them.
To identify a puzzle, one can begin by imagining alternative outcomes to the one that occurred. The sources legal scholars regularly use are superb starting points for this task. The adversarial process inherently offers (at least) two alternative ways of understanding a set of facts—the plaintiff’s and the defendant’s. Amicus briefs and other third-party interventions can also help sketch out alternative options. Additionally, separate opinions from judges, including powerful concurrences and dissents, provide a range of plausible alternative legal outcomes. Furthermore, trial and appellate court judges can offer different answers to the same question, creating legally plausible alternative conclusions. In short, the legal process itself offers a broad range of well-constructed alternatives.
Legal scholars often go beyond these first steps to construct plausible but nonobvious alternative worlds, and draw comparisons across historical periods, legal fields, and jurisdictions. For example, in Pigs and Positivism, Professor Hendrik Hartog constructs a nonobvious but plausible counterfactual by examining a case concerning pig owners’ right to let pigs roam in urban settings.17
See Hendrik Hartog, Pigs and Positivism, 1985 Wis L Rev 899, 904–06.
Id at 905–06, 908–09.
Id at 912–13.
By identifying this third plausible alternative, Hartog demonstrates that, while prosecutors and defense attorneys predictably disagree, the terms of disagreement explain the bounds of what is legally acceptable in particular times and places.20
See id at 913, 935.
See Hartog, 1985 Wis L Rev at 912–15, 929–35 (cited in note 17).
After imagining plausible alternatives, scholars select cases that allow them to effectively explore why a particular path was or should have been chosen rather than its alternative. In the Part that follows, we present useful techniques for scholars to systematically select cases.
II. Sampling and Case Selection
Concerns about case selection and sampling are widespread among legal scholars, particularly the worry of cherry-picking cases that best fit an argument. What is less well-known is how to create representative samples and select cases to make credible, generalizable causal claims. We introduce some helpful sampling and case selection techniques in the paragraphs that follow.
A. Sampling
Through sampling, researchers gather a subset of units from which they can make inferences about a broader population. Sampling techniques are useful for scholars pursuing doctrinal projects because the credibility of a generalization about doctrine depends on the representativeness of chosen examples. Sampling also holds important advantages for scholars pursuing causal arguments because it helps eliminate alternative explanations of the outcome. Below, we start with some general considerations about carefully sampling legal cases. We then present two particularly useful sampling techniques: random sampling and theoretically informed sampling. We discuss random sampling to dispel the assumption that it is too complicated to use in qualitative research. We present theoretically informed sampling because it allows scholars who work with few cases to make valid inferences.
Careful sampling requires scholars to clearly define the scope of their generalizations and the population to which their inferences apply. To see careful sampling in practice, we turn to Multiple Disadvantages: An Empirical Test of Intersectionality Theory in EEO Litigation.22
See generally Rachel Kahn Best, et al, Multiple Disadvantages: An Empirical Test of Intersectionality Theory in EEO Litigation, 45 L & Society Rev 991 (2011).
Id at 999–1000, 1017–19.
Id at 1009 (noting that the employee wins a clear victory in 15 percent of cases with intersectional bases of discrimination, as opposed to 30 percent of cases with nonintersectional bases of discrimination).
Careful sampling is critical in making this claim persuasive. First, the authors select the appropriate unit in which to test their theory: federal circuit and district court cases.25
Id at 999.
Best, et al, 45 L & Society Rev at 999 (cited in note 22).
Second, the authors clearly explain their sample’s limitations and define the scope of their inferences. The authors randomly sampled from relevant district and circuit court opinions available on Westlaw.27
Id at 999 & nn 4–5.
See id at 1000 & n 8.
1. Random sampling and systematic sampling.
Random sampling is widely used in the social sciences. Random sampling involves selecting subjects from a larger population by chance; each subject has equal probability of being selected. Random sampling has distinct advantages because it eliminates the possibility that the characteristics of selected units influence the outcome. This technique allows scholars with limited information about the universe of cases to draw generalizations efficiently.
Random sampling is critical to Best and her colleagues’ ability to make a general claim about plaintiffs’ success in antidiscrimination lawsuits. The authors collected all relevant district and circuit court opinions between 1965 and 1999 available on Westlaw, from which they randomly chose 2 percent.29
Id at 999.
A related technique—systematic sampling—can also produce credible generalizations. Systematic sampling involves randomly choosing a starting point and then selecting cases based on a fixed interval.30
See, for example, Paul D. Halliday, Habeas Corpus: From England to Empire 28–29, 319 (Belknap 2010).
Id at 4.
Id at 319.
See id at 5.
Halliday, Habeas Corpus at 319 (cited in note 30).
Random sampling has an important limitation: it requires the researcher to select a relatively large number of cases. We turn next to theoretically informed sampling, which is more appropriate for studying smaller numbers of cases.
2. Theoretically informed sampling.
Theoretically informed sampling holds distinct advantages for producing causal claims and credible generalizations with a small number of cases. First, the researcher identifies theoretically important characteristics that could influence the outcome. The researcher then sorts cases into categories defined by these characteristics and selects cases from each category.35
See Sarah Curtis, et al, Approaches to Sampling and Case Selection in Qualitative Research: Examples in the Geography of Health, 50 Soc Sci & Med 1001, 1002 (2000) (discussing the theoretical framework for case selection).
For example, if a researcher was interested in treaty compliance, she would begin by identifying state characteristics that could delay compliance, such as limited bureaucratic capacity, poverty, or federalism. The researcher would then create categories defined by different combinations of these variables (for example, a wealthy federal state with high bureaucratic capacity) and sort states into each category. She would then select cases from each category, either randomly or based on practical and theoretical concerns. For example, because US treaty ratification behavior is very different from that of other wealthy federal states with high bureaucratic capacity, the researcher might want to include additional wealthy federal states. Ultimately, the researcher should “select[ ] a manageable number of cases that are diverse in terms of theoretically important traits.”36
Katerina Linos, How to Select and Develop International Law Case Studies: Lessons from Comparative Law and Comparative Politics, 109 Am J Intl L 475, 480 (2015).
Theoretically informed sampling is more difficult to carry out than random sampling and more likely to lead the researcher to introduce bias into the selection process. Despite these drawbacks, theoretically informed sampling has distinct advantages over random sampling for scholars working with a small number of cases. Random sampling has poor small-sample properties: the chances that a researcher who randomly selects five countries will end up with five developing countries, or five agricultural economies, rather than five diverse states, are surprisingly high. Scholars cannot then make valid generalizations because the cases selected have particular, shared characteristics.37
See Jason Dietrich, The Effects of Sampling Strategies on the Small Sample Properties of the Logit Estimator, 32 J Applied Stat 543, 544 (2005) (“On average, simple random sampling yields a sample reflecting the true population distributions. . . . For smaller samples, however, there is an increased risk that the model cannot be estimated because of limited variation in either the dependent or independent variables.”).
We could not locate exemplary uses of theoretically informed sampling in the legal literature. This makes our description more challenging, yet more likely to be useful. Below is an example that illustrates some of the steps outlined above, but that has important limitations. In Legalizing Gender Inequality: Courts, Markets, and Unequal Pay for Women in America, Professors Robert Nelson and William Bridges investigate “wage differences between jobs held primarily by women and those held primarily by men within the same organization.”38
Robert L. Nelson and William P. Bridges, Legalizing Gender Inequality: Courts, Markets, and Unequal Pay for Women in America 2 (Cambridge 1999).
See id at 2–3.
Id at 102, 105–08.
The authors select these cases to capture theoretically important variation across lawsuits.41
Id at 102.
Nelson and Bridges, Legalizing Gender Inequality at 108 (cited in note 38).
Id.
This last step distinguishes theoretically informed sampling from stratified sampling. In stratified sampling, cases are picked at random within each stratum; in theoretically informed sampling, researchers select cases within each stratum. See id at 109–10.
Despite their use of theoretically informed sampling, the authors’ selection process raises important questions. For example, they examine only organizations sued for gender discrimination; these organizations may have especially egregious practices, and thus may be unrepresentative.45
Id at 112.
Nelson and Bridges, Legalizing Gender Inequality at 112–13 (cited in note 38).
B. Case Selection Techniques
While sampling techniques strengthen generalizations about the prevalence of certain population characteristics, case selection techniques are used to make structured and focused comparisons across cases, strengthening causal claims. We describe several case selection techniques below.
1. Most difficult case design.
Selecting cases in which one’s theory is least likely to hold true can offer strong theoretical leverage. These cases, called “least-likely” cases,47
Harry Eckstein, Case Study and Theory in Political Science, in Fred I. Greenstein and Nelson W. Polsby, eds, 7 Handbook of Political Science: Strategies of Inquiry 79, 119 (Addison-Wesley 1975). See also Jack S. Levy, Case Studies: Types, Designs, and Logics of Inference, 25 Conflict Mgmt & Peace Sci 1, 12 (2008).
See Levy, 25 Conflict Mgmt & Peace Sci at 12 (cited in note 47).
Rosenberg, The Hollow Hope at 420 (cited in note 5).
Using a least-likely case selection strategy is particularly effective for increasing the causal strength and generalizability of Rosenberg’s argument. The Supreme Court is more visible and influential than any other court in the American political system.50
See id at 7.
Id at 8.
2. Most similar case design.
In most similar case selection, the researcher chooses cases that have similar values on theoretically important characteristics, but differ on the independent variable of interest.52
See Jason Seawright and John Gerring, Case Selection Techniques in Case Study Research: A Menu of Qualitative and Quantitative Options, 61 Polit Rsrch Q 294, 304 (2008).
For an in-depth description of most similar case selection, see Ran Hirschl, The Question of Case Selection in Comparative Constitutional Law, 53 Am J Comp L 125, 133–39 (2005).
See generally David S. Law, Judicial Comparativism and Judicial Diplomacy, 163 U Pa L Rev 927 (2015).
Id at 942.
Law selects the Japanese Supreme Court, the Korean Constitutional Court, and the Taiwanese Constitutional Court because they share characteristics that potentially explain judicial engagement in comparativism.56
Id at 942–43, 949–50.
Id at 950.
Despite their similarities, these courts differ on the outcome and explanatory variables of interest, namely, the court’s use of foreign law, the court’s institutional capacity for comparativism, and the use of comparativism in legal education. The use of foreign law by Japan’s highest court is minimal relative to Korea’s Constitutional Court, which draws on foreign law in a majority of cases,58
Law, 163 U Pa L Rev at 953, 962 (cited in note 54).
See id at 977.
Id at 953–54.
Id at 972–73, 1033.
Law, 163 U Pa L Rev at 1035 (cited in note 54).
See id at 964, 970–71.
Id at 1012–13.
Id at 949–52.
3. Variants on most similar case design.
Variants on most similar case design have distinct advantages for assessing claims that are of particular interest to legal scholars, such as whether particular legal devices are necessary or sufficient to produce an outcome of interest. For example, many legal scholars want to know whether particular legal rules are essential for well-functioning markets, effective political participation, or robust environmental protection. Similarly, many legal scholars wonder whether adopting similar laws (for example, a model code) in different jurisdictions will result in largely similar outcomes.
In Private Enforcement of Corporate Law: An Empirical Comparison of the United Kingdom and the United States, Professors John Armour, Bernard Black, Brian Cheffins, and Richard Nolan use a variation of most similar case design to assess whether formal private enforcement of corporate law is necessary for strong securities markets.66
See generally John Armour, et al, Private Enforcement of Corporate Law: An Empirical Comparison of the United Kingdom and the United States, 6 J Empirical Legal Stud 687 (2009).
See id at 692.
Id at 689, 692 (citation omitted).
The authors argue that, “[i]f private enforcement is [indeed] essential for robust stock markets,” they should observe “vigorous private enforcement of corporate law in both” countries, as these countries are otherwise similar in relevant respects.69
Id at 692.
Armour, et al, 6 J Empirical Legal Stud at 690 (cited in note 66).
Variations of most similar case design are also useful for legal scholars evaluating whether similar legal frameworks are used in the same way, or produce similar effects, across contexts. In How Dispute Resolution System Design Matters, Professor Shauhin Talesh examines why California and Vermont consumers receive different protections despite the fact that these states have nearly identical automobile consumer protection laws, or “lemon laws.”71
See generally Shauhin A. Talesh, How Dispute Resolution System Design Matters: An Organizational Analysis of Dispute Resolution Structures and Consumer Lemon Laws, 46 L & Society Rev 463 (2012).
Starting with nearly identical lemon laws, Talesh identifies differences between the contexts that could influence the implementation of these laws. Talesh finds that California and Vermont vary in terms of public and private control of dispute resolution structures.72
Id at 466–68.
Id at 464.
Id at 464–65.
Talesh, 46 L & Society Rev at 474 (cited in note 71).
It is not only similarly structured laws, but also identical words, that are interpreted in very different ways. For example, both Vermont and California emphasize impartiality and neutrality in the fact-finding process; however, these words’ meanings differ across states. In California, arbitrators who actively investigate facts “compromise” impartiality and neutrality, while Vermont arbitrators must actively investigate facts to establish impartiality and neutrality.76
See id at 478–80.
See id at 478.
Id at 483–89.
4. Most different case design.
In most different case design, researchers select cases that differ on all relevant characteristics except the explanatory variable and outcome.79
See Seawright and Gerring, 61 Polit Rsrch Q at 306 (cited in note 52).
Federico Fabbrini, The Euro-Crisis and the Courts: Judicial Review and the Political Process in Comparative Perspective, 32 Berkeley J Intl L 64, 65 (2014).
Fabbrini compares high court judicial decisions in Estonia, France, Germany, Ireland, and Portugal, highlighting that these five member states represent the very diverse political, economic, and legal conditions that characterize the European Union (EU).81
See id at 75–76.
See id.
Drawing from post-Euro-crisis court rulings, Fabbrini identifies a common cause of this increasingly high degree of judicial intervention in fiscal and economic affairs: EU member states’ intergovernmental management of the Euro-crisis.83
Id at 65.
Fabbrini, 32 Berkeley J Intl L at 65 (cited in note 80).
III. Process Tracing: Developing Multiple Empirical Implications
After imagining alternative plausible outcomes and selecting cases, qualitatively oriented scholars trace the events prior to the outcome, parsing their theory into logically interconnected propositions that explain why the outcome occurred. If a legal scholar attributes an outcome to a particular cause, it is reasonable to think that this cause would produce other “traces,” or implications. Using available evidence, this scholar can see whether these expected implications actually occurred, thereby strengthening (or weakening) her explanation of the outcome. Additionally, scholars can weigh the plausibility of these implications against alternative explanations of the outcome.85
See Lawrence B. Mohr, The Reliability of the Case Study as a Source of Information, 2 Advances Info Processing Orgs 65, 67–69 (1985).
The logic of process tracing should not be unfamiliar to lawyers; similar logic is used to assemble evidence in individual cases. In process tracing, scholars form multiple hypotheses about what caused an outcome, identify implications of each hypothesis, and weigh the hypotheses against available evidence. Similarly, to link a suspect to a crime, a prosecutor identifies a motive and develops a theory connecting a suspect’s motive to the time, place, and method of the crime. The prosecutor examines whether the evidence is more consistent with her theory or alternative theories. Evidence will vary in probative value; for example, eyewitness testimony might be less definitive than DNA evidence.86
However, for a critique of the reliability of DNA evidence, see generally Andrea Roth, Maryland v. King and the Wonderful, Horrible DNA Revolution in Law Enforcement, 11 Ohio St J Crim L 295 (2013).
After developing a theoretical explanation of the outcome, scholars using process tracing must assess how diagnostic evidence increases or decreases the probability that this explanation is true. These pieces of diagnostic evidence are called causal process observations (CPOs) because they elucidate the broader causal mechanism linking the variables.87
David Collier, Understanding Process Tracing, 44 PS: Polit Sci & Polit 823,
826 (2011).
Id at 825.
“Straw-in-the-wind” evidence does not prove or disprove a theory, but suggests that its validity is more likely than it would otherwise be. “Hoop” evidence can disprove a theory but cannot independently establish its validity. Id.
Below we provide two applications of process tracing to show how it can assess different types of causal arguments using various legal sources. We distinguish theoretically between (a) testing a theory with multiple empirical implications connected chronologically, and (b) testing a particular type of chronological connection common in legal scholarship—path-dependent processes90
For an excellent example of how to effectively use process tracing, see Tasha Fairfield, Going Where the Money Is: Strategies for Taxing Economic Elites in Unequal Democracies, 47 World Development 42, 46–51 (2013).
A. Process Tracing When Observations Are Linked Temporally
Researchers can effectively use process tracing to evaluate theories with chronologically connected empirical implications. To do so, the researcher breaks down her explanation of an outcome into various sequential, causal propositions, and evaluates these propositions against temporally interlinked observations. In The Strength of a Weak Agency, Professors Nicholas Pedriana and Robin Stryker explain how social movement pressure can expand the capacity of an agency with a small staff, limited budget, and limited jurisdiction.91
See generally Nicholas Pedriana and Robin Stryker, The Strength of a Weak Agency: Enforcement of Title VII of the 1964 Civil Rights Act and the Expansion of State Capacity, 1965–1971, 110 Am J Sociology 709 (2004).
Title VII of the Civil Rights Act of 1964, Pub L No 88-352, 78 Stat 253, codified at 42 USC § 2000e et seq.
Pedriana and Stryker, 110 Am J Sociology at 710–11, 725–27 (cited in note 91).
401 US 424 (1971).
Id at 431 (holding that “[t]he Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation”).
Pedriana and Stryker’s first proposition involves social movements flooding the EEOC with complaints to demonstrate that the agency’s existing resources and capacity were insufficient.96
Pedriana and Stryker, 110 Am J Sociology at 725 (cited in note 91).
See id at 721.
Id at 720.
See id at 729.
Pedriana and Stryker, 110 Am J Sociology at 739–40, 748 (cited in note 91).
To reject the alternative explanation that power-seeking bureaucrats drove EEOC expansion, the authors highlight that the first EEOC chairman, Franklin Delano Roosevelt Jr, was yachting during congressional hearings regarding appropriations for his agency.101
Id at 721.
Id.
To evaluate their proposition that social movements exposed the EEOC’s ineffectiveness, thereby pressuring the EEOC to adopt an aggressive strategy, Pedriana and Stryker note that the NAACP and the LDF filed mass complaints in the months after Title VII came into force.103
Id at 725.
Pedriana and Stryker, 110 Am J Sociology at 725 (cited in note 91) (brackets in original).
See id.
To evaluate their proposition that there was a push to expand the EEOC’s mandate, Pedriana and Stryker show that EEOC leadership initially disagreed over whether Title VII covered intentional discrimination and discriminatory effects.106
See id at 728–30.
See id at 723, 726.
See Pedriana and Stryker, 110 Am J Sociology at 723 (cited in note 91).
Id at 735 (brackets and ellipsis in original).
Id.
Pedriana and Stryker demonstrate how legal scholars can develop temporally linked propositions with distinctive empirical signatures, and how evaluating these propositions against available evidence can substantially increase their persuasiveness. We now turn to path-dependent causal claims and explain how best to substantiate them.
B. Process Tracing When Observations Are Path Dependent
Legal scholars commonly make claims about path dependence, processes in which early events have large consequences later on. A HeinOnline search showed that 2,662 articles mentioned path dependence explicitly from 2000 to 2015. Legal interpretation techniques, including rules governing precedents, analogical reasoning, and conventions about interpreting similar language systematically, make early judicial decisions crucial. Below we explain why process tracing can help develop path-dependent claims.111
For another example of process tracing to establish path dependence, see generally Katerina Linos, Path Dependence in Discrimination Law: Employment Cases in the United States and the European Union, 35 Yale J Intl L 115 (2010).
What distinguishes path dependence from other claims about event sequence? First, in path-dependent processes, positive feedback loops make early events have bigger consequences than later ones.112
See Paul Pierson, Increasing Returns, Path Dependence, and the Study of Politics, 94 Am Polit Sci Rev 251, 251–52 (2000).
James Mahoney, Path Dependence in Historical Sociology, 29 Theory & Society 507, 513 (2000).
Process-tracing techniques are very useful for identifying feedback loops and critical junctures.114
See Giovanni Capoccia and R. Daniel Kelemen, The Study of Critical Junctures: Theory, Narrative, and Counterfactuals in Historical Institutionalism, 59 World Polit 341, 343, 358–59 (2007).
See Risa L. Goluboff, The Lost Promise of Civil Rights 175–76 (Harvard 2007).
See id at 217–37.
To establish that an event constitutes a critical juncture, a scholar must demonstrate that there were at least two alternatives available and that, after one alternative was chosen, it became increasingly difficult to return to the other option. Goluboff does this for key decisions in the 1930s and 1940s.117
See id at 174–237.
See id at 81–82.
See Goluboff, The Lost Promise at 197 (cited in note 115).
Id at 187.
Id.
Perhaps the biggest critical juncture was the Supreme Court’s decision in Brown, which vindicated the NAACP’s legal strategy and established equal protection as the dominant civil rights lens.122
See id at 238–70.
See, for example, Erwin Chemerinsky, Constitutional Law: Principles and Policies 722–25 (Wolters Kluwer 4th ed 2011).
See Goluboff, The Lost Promise at 81–84, 175–76 (cited in note 115).
Id at 112–14 (“The CRS maintained its original commitment to the rights of labor and reworked, rather than rejected, labor rights into its new civil rights practice during the 1940s.”).
See id at 23.
Id at 111–12.
Implications and Conclusions
In place of a conclusion, we speculate on an observation that transformed quantitative research. In a much-cited 1986 piece, Paul Holland argued that some questions can be answered much more easily than others.128
See generally Paul W. Holland, Statistics and Causal Inference, 81 J Am Stat Assn 945 (1986).
See id at 945–48.
Legal scholars arguably face the opposite problem. Legal scholarship has no shortage of interesting questions. However, many of these critical questions are never answered; legal scholars rarely defend their preferred theories against plausible alternatives effectively. By showcasing a variety of methodological techniques that are well suited to the types of claims and evidence legal scholars typically work with, we hope to move closer to answering the critically important questions legal scholars pose.
- 16Kristin Luker, Salsa Dancing into the Social Sciences: Research in an Age of Info-Glut 55 (Harvard 2008).
- 17See Hendrik Hartog, Pigs and Positivism, 1985 Wis L Rev 899, 904–06.
- 18Id at 905–06, 908–09.
- 19Id at 912–13.
- 20See id at 913, 935.
- 21See Hartog, 1985 Wis L Rev at 912–15, 929–35 (cited in note 17).
- 22See generally Rachel Kahn Best, et al, Multiple Disadvantages: An Empirical Test of Intersectionality Theory in EEO Litigation, 45 L & Society Rev 991 (2011).
- 23Id at 999–1000, 1017–19.
- 24Id at 1009 (noting that the employee wins a clear victory in 15 percent of cases with intersectional bases of discrimination, as opposed to 30 percent of cases with nonintersectional bases of discrimination).
- 25Id at 999.
- 26Best, et al, 45 L & Society Rev at 999 (cited in note 22).
- 27Id at 999 & nn 4–5.
- 28See id at 1000 & n 8.
- 29Id at 999.
- 30See, for example, Paul D. Halliday, Habeas Corpus: From England to Empire 28–29, 319 (Belknap 2010).
- 31Id at 4.
- 32Id at 319.
- 33See id at 5.
- 34Halliday, Habeas Corpus at 319 (cited in note 30).
- 35See Sarah Curtis, et al, Approaches to Sampling and Case Selection in Qualitative Research: Examples in the Geography of Health, 50 Soc Sci & Med 1001, 1002 (2000) (discussing the theoretical framework for case selection).
- 36Katerina Linos, How to Select and Develop International Law Case Studies: Lessons from Comparative Law and Comparative Politics, 109 Am J Intl L 475, 480 (2015).
- 37See Jason Dietrich, The Effects of Sampling Strategies on the Small Sample Properties of the Logit Estimator, 32 J Applied Stat 543, 544 (2005) (“On average, simple random sampling yields a sample reflecting the true population distributions. . . . For smaller samples, however, there is an increased risk that the model cannot be estimated because of limited variation in either the dependent or independent variables.”).
- 38Robert L. Nelson and William P. Bridges, Legalizing Gender Inequality: Courts, Markets, and Unequal Pay for Women in America 2 (Cambridge 1999).
- 39See id at 2–3.
- 40Id at 102, 105–08.
- 41Id at 102.
- 42Nelson and Bridges, Legalizing Gender Inequality at 108 (cited in note 38).
- 43Id.
- 44This last step distinguishes theoretically informed sampling from stratified sampling. In stratified sampling, cases are picked at random within each stratum; in theoretically informed sampling, researchers select cases within each stratum. See id at 109–10.
- 45Id at 112.
- 46Nelson and Bridges, Legalizing Gender Inequality at 112–13 (cited in note 38).
- 47Harry Eckstein, Case Study and Theory in Political Science, in Fred I. Greenstein and Nelson W. Polsby, eds, 7 Handbook of Political Science: Strategies of Inquiry 79, 119 (Addison-Wesley 1975). See also Jack S. Levy, Case Studies: Types, Designs, and Logics of Inference, 25 Conflict Mgmt & Peace Sci 1, 12 (2008).
- 48See Levy, 25 Conflict Mgmt & Peace Sci at 12 (cited in note 47).
- 49Rosenberg, The Hollow Hope at 420 (cited in note 5).
- 50See id at 7.
- 51Id at 8.
- 52See Jason Seawright and John Gerring, Case Selection Techniques in Case Study Research: A Menu of Qualitative and Quantitative Options, 61 Polit Rsrch Q 294, 304 (2008).
- 53For an in-depth description of most similar case selection, see Ran Hirschl, The Question of Case Selection in Comparative Constitutional Law, 53 Am J Comp L 125, 133–39 (2005).
- 54See generally David S. Law, Judicial Comparativism and Judicial Diplomacy, 163 U Pa L Rev 927 (2015).
- 55Id at 942.
- 56Id at 942–43, 949–50.
- 57Id at 950.
- 58Law, 163 U Pa L Rev at 953, 962 (cited in note 54).
- 59See id at 977.
- 60Id at 953–54.
- 61Id at 972–73, 1033.
- 62Law, 163 U Pa L Rev at 1035 (cited in note 54).
- 63See id at 964, 970–71.
- 64Id at 1012–13.
- 65Id at 949–52.
- 66See generally John Armour, et al, Private Enforcement of Corporate Law: An Empirical Comparison of the United Kingdom and the United States, 6 J Empirical Legal Stud 687 (2009).
- 67See id at 692.
- 68Id at 689, 692 (citation omitted).
- 69Id at 692.
- 70Armour, et al, 6 J Empirical Legal Stud at 690 (cited in note 66).
- 71See generally Shauhin A. Talesh, How Dispute Resolution System Design Matters: An Organizational Analysis of Dispute Resolution Structures and Consumer Lemon Laws, 46 L & Society Rev 463 (2012).
- 72Id at 466–68.
- 73Id at 464.
- 74Id at 464–65.
- 75Talesh, 46 L & Society Rev at 474 (cited in note 71).
- 76See id at 478–80.
- 77See id at 478.
- 78Id at 483–89.
- 79See Seawright and Gerring, 61 Polit Rsrch Q at 306 (cited in note 52).
- 80Federico Fabbrini, The Euro-Crisis and the Courts: Judicial Review and the Political Process in Comparative Perspective, 32 Berkeley J Intl L 64, 65 (2014).
- 81See id at 75–76.
- 82See id.
- 83Id at 65.
- 84Fabbrini, 32 Berkeley J Intl L at 65 (cited in note 80).
- 85See Lawrence B. Mohr, The Reliability of the Case Study as a Source of Information, 2 Advances Info Processing Orgs 65, 67–69 (1985).
- 86However, for a critique of the reliability of DNA evidence, see generally Andrea Roth, Maryland v. King and the Wonderful, Horrible DNA Revolution in Law Enforcement, 11 Ohio St J Crim L 295 (2013).
- 87David Collier, Understanding Process Tracing, 44 PS: Polit Sci & Polit 823,
826 (2011). - 88Id at 825.
- 89“Straw-in-the-wind” evidence does not prove or disprove a theory, but suggests that its validity is more likely than it would otherwise be. “Hoop” evidence can disprove a theory but cannot independently establish its validity. Id.
- 90For an excellent example of how to effectively use process tracing, see Tasha Fairfield, Going Where the Money Is: Strategies for Taxing Economic Elites in Unequal Democracies, 47 World Development 42, 46–51 (2013).
- 91See generally Nicholas Pedriana and Robin Stryker, The Strength of a Weak Agency: Enforcement of Title VII of the 1964 Civil Rights Act and the Expansion of State Capacity, 1965–1971, 110 Am J Sociology 709 (2004).
- 92Title VII of the Civil Rights Act of 1964, Pub L No 88-352, 78 Stat 253, codified at 42 USC § 2000e et seq.
- 93Pedriana and Stryker, 110 Am J Sociology at 710–11, 725–27 (cited in note 91).
- 94401 US 424 (1971).
- 95Id at 431 (holding that “[t]he Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation”).
- 96Pedriana and Stryker, 110 Am J Sociology at 725 (cited in note 91).
- 97See id at 721.
- 98Id at 720.
- 99See id at 729.
- 100Pedriana and Stryker, 110 Am J Sociology at 739–40, 748 (cited in note 91).
- 101Id at 721.
- 102Id.
- 103Id at 725.
- 104Pedriana and Stryker, 110 Am J Sociology at 725 (cited in note 91) (brackets in original).
- 105See id.
- 106See id at 728–30.
- 107See id at 723, 726.
- 108See Pedriana and Stryker, 110 Am J Sociology at 723 (cited in note 91).
- 109Id at 735 (brackets and ellipsis in original).
- 110Id.
- 111For another example of process tracing to establish path dependence, see generally Katerina Linos, Path Dependence in Discrimination Law: Employment Cases in the United States and the European Union, 35 Yale J Intl L 115 (2010).
- 112See Paul Pierson, Increasing Returns, Path Dependence, and the Study of Politics, 94 Am Polit Sci Rev 251, 251–52 (2000).
- 113James Mahoney, Path Dependence in Historical Sociology, 29 Theory & Society 507, 513 (2000).
- 114See Giovanni Capoccia and R. Daniel Kelemen, The Study of Critical Junctures: Theory, Narrative, and Counterfactuals in Historical Institutionalism, 59 World Polit 341, 343, 358–59 (2007).
- 115See Risa L. Goluboff, The Lost Promise of Civil Rights 175–76 (Harvard 2007).
- 116See id at 217–37.
- 117See id at 174–237.
- 118See id at 81–82.
- 119See Goluboff, The Lost Promise at 197 (cited in note 115).
- 120Id at 187.
- 121Id.
- 122See id at 238–70.
- 123See, for example, Erwin Chemerinsky, Constitutional Law: Principles and Policies 722–25 (Wolters Kluwer 4th ed 2011).
- 124See Goluboff, The Lost Promise at 81–84, 175–76 (cited in note 115).
- 125Id at 112–14 (“The CRS maintained its original commitment to the rights of labor and reworked, rather than rejected, labor rights into its new civil rights practice during the 1940s.”).
- 126See id at 23.
- 127Id at 111–12.
- 128See generally Paul W. Holland, Statistics and Causal Inference, 81 J Am Stat Assn 945 (1986).
- 129See id at 945–48.