The Research Methods course is one of the latest additions to the curriculum for the bachelor’s degree in law. The course aims to provide the students with basic knowledge of the research methods used by legal scholars. In order to understand the connection between empirical research and law, and how academic research and legal practice are combined, we spoke to Dr. Keren Weinshall-Margel, who is teaching the course.
Empirical legal research seems to be a growing field in recent years. “For a while, law and economics was the rising star, to the point they everyone now thinks in terms of cost and benefit. But today the hot topic is empirical law,” says Dr. Keren Weinshall-Margel, an expert in empirical research into legal and social institutions. Alongside her research work, Dr. Weinshall-Margel is now also teaching the Research Methods course at the Faculty of Law, which was introduced into the curriculum over the past year. The new course in itself highlights the rising importance of empirical research.
Before joining the academic faculty, Dr. Weinshall-Margel founded and directed the The Israeli Courts Research Division )ICRD) in the Judicial Authority for some four years. “I heard about this new division while I was working as a visiting scholar at Harvard,” she recalls. “It seemed like a wonderful opportunity to combine academic research and the possibility to have a practical impact on the world, and I hoped to make an improvement in a field that is important to me.” After returning to Israel, Dr. Weinshall-Margel set to work straight away building the new division . “I had to start thinking about the goals of a research body inside the Judicial Authority, its structure and working procedures, and the type of studies it should undertake.”
The new division drew its inspiration from the Federal Judicial Center in the US, which also includes a research unit. “Serving as a research body for the judicial system is a unique function. As I perceived and defined it, our client is the court administration. Those who instructed us to engage in research were the Supreme Court presidents – firstly, President Beinisch and later, President Grunis, who headed the department’s steering committee. But despite this, we were completely independent in preparing our studies, and we could also recommend research subjects to the steering committee. For example, we realized that there is a problem with legal costs, and we proposed to undertake an empirical study to examine how legal costs are awarded, and what social and legal interests are actually served by this mechanism. Our studies were always empirical and never normative. We would present our conclusions, and the great thing was seeing them put into practice. For example, one of our most important projects was to define a Case Wight Index for evaluating judicial workloads based on the average judicial time invested in different case types. Almost immediately after we finished our study, the index was implemented throughout the court system. Today cases are allocated to judges and staff positions are transferred between courts on the basis of our study and our index. That’s a great feeling for a researcher – to see a direct impact on the field. I even find myself missing that feeling a little.”
Dr. Keren Weinshall-Margel
Dr. Weinshall-Margel says that the cooperation between the department and the judges was excellent. “At first the judges had some concerns, but they very soon realized that our studies could help them and could identify problems. They saw that we approached our work without prejudice and with the goal of conducting research. The cooperation was wonderful. We had direct access to the judges and we undertook many interviews and questionnaires with them. It usually takes longer for new bodies to find their feet, but I think that we brought results pretty quickly, and in general the judges appreciated this.”
The research team included scholars who combined the legal field with another area of knowledge. “We had a great team. I decided that the department should include two researchers, in addition to myself, and it was important to me that they should have an academic background in the social sciences as well as law. Firstly, because of the methodological side of our work, which is studied in greater depth in the social sciences. Apart from that, it was important to me to have a diverse team. One researcher had a degree in law and psychology, while the other had a degree in law and cognition. We also had research assistants who were students combining law with another subject – economics, business administration, political science, and so forth. Most of them were outstanding students from our own Faculty. They collected the data that the researchers and I then analyzed.
Another study by Dr. Weinshall-Margel that was published recently examines the chances that a criminal prosecution will be successful. “The study began while I was working in the Research Department, and I prepared it together with Professor Oren Gazal-Ayal, an expert in criminal law at the Faculty of Law in the University of Haifa. We wanted to examine the real rates of acquittal and conviction and to see whether conviction rates in Israel are as high as usually assumed (99.9%). After investigation, we found completely different results: between 70% to 85% of conviction rate. From this study we went on to undertake other studies.”
Dr. Weinshall-Margel is currently working on a study focusing on class action suits, in cooperation with Professor Alon Klement. “We are examining in empirical terms whether the institution of class action suits is effectivein Israel. The Israeli model for class action suits broadly follows the American model, but the implementation of the model in Israel is completely different from the US. For example, in Israel 75 percent of applications to certify class action suits relate to consumer suits, while in the US these account for just 25 percent of suits. We are trying to understand the reasons for the differences, and considering whether the implementation of the class action mechanism realizes its goals in practice. I am also working on a book based on my doctorate thesis, in which I examined the extent to which Supreme Court justices in Israel are influenced by their ideological positions, as distinct from legalistic considerations relating to the application and implementation of the law. The book focuses on an empirical analysis of decisions relating to freedom of religion, political rights, and human rights that conflict with security interests. In another project (together with Professor Ya’acov Ritov and Dr. Udi Zomer), we are comparing the extent to which ideological positions influence the decisions of justices in five supreme courts – in Israel, Canada, India, the US, and the Philippines. The results show that ideological motivations have a much stronger influence on the decisions of supreme court justices in the US, followed by Canada. Israeli and Filipino justices are much less prone to make decisions on the basis of ideological considerations, while in India we found virtually no influence of ideological positions on the justices’ decisions. In the study we attempt to explain the institutional elements that lead to these results – above all the method used for the appointment of justices to the court, as well as factors such as the type of cases, workloads, etc.”
In the meantime, Dr. Weinshall-Marshall is working on yet more projects. “At any given time I try to work on about four different projects, usually in cooperation with other researchers. I love to cooperate, and empirical projects usually require such cooperation. One reason is that they require a lot of theoretical work, as well as time and resources to collect and analyze data. Another is that these studies combine expertise from different fields of knowledge.”
How did you get involved in this field of research?
“There was an argument between my parents. My mother said that I should be an academic researcher in the social sciences, while my father thought that I should become an attorney. So I ended up somewhere in the middle. What I enjoy is research, but it’s important to me that it is connected to the real world and to actual influences and actions. That’s why I jumped at the opportunity to work in the Research Department, and that’s also why I worked for several years as a legal advisor to the Knesset Constitution, Law and Justice Committee after completing my internship in the Knesset. Research and practice are often contradictory, but I’ve always tried to combine and balance the two. I’m still not sue that I’ve found the balance.”
To what extent do you think that legal experts in Israel make use of empirical tools?
“It varies a lot. If you’d asked me five or ten years ago, I’d have replied that they don’t use these tools at all. In recent years there has been a rapid trend to adopt empirical methodologies in all aspects of law, and there is even a demand for these tools in the case law. I organized a conference about public empirical research together with Professor Barak Medina and Professor Yoav Dotan. The conference included a panel discussion at the Supreme Court to discuss the question whether and how empirical methods can help in the judicial process. The fact that the panel was held, and even more so the fact that most of the Supreme Court justice attended and participated in the event, show the growing importance and contribution of empirical research to the world of law. In my opinion, recognition of the contribution of analysis based on the systematic collection of data is not confined to academic institutions, but is spreading to the field of legal practice. One sign of this is the development of legal search engines. Commercial companies in Israel are working today to create databases in a controversial attempt to explain or predict levels of criminal punishment (“Nevo-Anisha”) or the level of damages (“Nezik-Click.”)
Lastly, do you have a tip for students who want to engage in research?
“They should do what they enjoy doing. We have some great students. I’ve taught at several institutions and faculties, and our students are the best.”