Legal Construct Validation: Expanding Empirical Legal Scholarship to Unobservable Concepts


This article contends that many of the fundamental concepts of law (such as justice, incentives, and deterrence) are not directly measurable, and have, therefore, been largely ignored by empirical legal scholarship. Fortunately, other social sciences have confronted this same obstacle and have developed methods with which to empirically assess these intangible concepts. I propose that the concept of construct validation, which has been developed in the psychology subfield of psychometrics, can be adapted to law to measure these unobservable traits. To adapt construct validation to law, empirical legal scholars must 1) develop generalized theories, 2) infer multiple hypotheses from these theories, 3) use appropriate research designs to test the hypotheses, and 4) the modify existing theories to reflect the empirical results of the studies. But this process is iterative and continuous, and the generalized theories should constantly be modified to reflect the newest information derived from empirical analyses. These modified theories, which are based on quantitative observations, can be used to better inform policymakers’ qualitative decisions.


Law | Law and Psychology | Public Law and Legal Theory | Science and Technology Law

Date of this Version

September 2006