Empirical arguments in public law doctrine: Should empirical legal studies make a "doctrinal turn"?

Abstract

While empirical arguments are potential game changers in American law, they only slowly gain traction in Germany. In this article, I wish to show the role empirical methods (can) play in public law scholarship. Specifically, I will discuss an underexposed area in the field of empirical legal studies, namely the interplay between empirics and doctrine, and the power of such arguments in the public law discourse. In the second part of the article, I will exemplify the merits, and the caveats, of "empiricizing" public law in such way, in a specific case (gambling law), showing how it can be used to prove wrong basic assumptions that are at the heart of long-standing doctrine. I suggest that empirical scholarship geared towards public law doctrine (as opposed to public policy), as it is currently emerging in Germany, can be a potentially influential addition to the menu of legal arguments, even beyond the German legal discourse.