I-CONnect Symposium – Peopling Constitutional Law: Revisiting ‘Constitutional Ethnography’ in the Twenty-First Century – Part V. Constitutional Ethnography for Beginners

—David S. Law, University of Virginia School of Law

Ethnographic approaches are not as widely practiced among constitutional scholars as they probably should be. Some may harbor perfectly reasonable doubts about the relevance and accessibility of such approaches. There are a number of basic questions that constitutional scholars might fairly ask themselves: “Why should I try this? Am I capable of doing this? How can I go about doing this?” This essay tries to offer some beginner-friendly answers to these questions.

1. Why should I do this?

There is a tremendous amount about legal and political systems that is difficult or even impossible to learn through other approaches: no amount of internet research or Zoom calls is going to reveal certain things. The usual bread and butter of constitutional scholars — judicial decisions — are heavily censored and stylized for public consumption. They are at best incomplete sources of information and at worst affirmatively misleading. Sometimes there is no good substitute for taking a look, talking to people, and poking around.

Methodological pluralism and or mixed-methods scholarship are all the rage for good reason. There is never any guarantee that a particular approach will work, but having another tool in the toolkit can make all the difference. Even — or perhaps especially — for people accustomed to other research methods, fieldwork can be eye-opening and helpful. In the best-case scenario, one develops intuitive knowledge and judgment that is hard to articulate yet informs other types of research in so many ways — a sense of what would be a promising research question, what is likely to be a dead end, what is plausible, what is not plausible.

Last but not least, fieldwork can be a lot of fun. As between sitting behind a desk and visiting a foreign country to see things for yourself, it is not much of a contest. Having fun does matter professionally. All other things being equal, when we enjoy our research, we will probably do more of it, and we may even do it better too.

• How do I do this?

There is an extensive body of methodological literature on ethnographic approaches. Yes, there are valuable lessons to be had from this literature. Yes, there are important and useful concepts to learn, like “semi-structured interview” and “snowball sampling.” But it is not fatal if you didn’t get formal training in any of this. As someone who has been in that boat, I bring a message of hope: it can be done. Even the feeling of “I don’t know what I’m doing” can be perfectly normal and healthy and need not be cause for alarm that your fieldwork is going to tank.

It’s difficult to give concrete advice about fieldwork that applies across the board because fieldwork is by definition very context-dependent. But in the spirit of trying to give back some of the helpful advice I have received over the years, here goes.

1. Practical challenges

Two of the biggest practical constraints on fieldwork are likely to be access and time. With whom are you able to speak, and how much time have you got with them?

• Access. Who will prove willing to speak, with what degree of candor, and on what matters? Lack of access to relevant actors is obviously a major constraint, but at the same time, there isn’t much to be said about it, because there is a limit to what one can do about it. One has (or develops) certain connections, and one does not have (or develop) other connections. C’est la vie.

• Time. People like judges and clerks and administrators are busy professionals who do not have oodles of spare time on their hands for talking with foreign scholars. This means you have limited scope to learn by trial and error. It is important to hit the ground running, and to peel back as many layers of the onion as possible, as quickly as possible.

1. Planning and strategy

One of the great things about fieldwork is that it can lead in unexpected directions to unexpected discoveries. But it is difficult to plan around the fact that much of the most rewarding fieldwork cannot be planned in advance. A balance must be struck between planning and adaptation, and the balance itself must be dynamic. Give yourself permission to engage in a certain amount of building the ship at sea. At a general level:

• DO have some idea of what you want to ask and who you want to talk to before you start.

• DO lay some groundwork before you start, both in terms of background reading and having a couple of leads to get you started. You can then see what doors open up from there. Especially if you’ve done your homework, your initial leads are likely to point you to other leads. Getting the initial leads can be hard. There is no magic bullet. Networking, patience, luck.

• DON’T feel it’s necessary to have a comprehensive game plan.  Over time, you might develop a research template for what information you want to collect, but it takes time to develop a well-informed template. Of course, fieldwork opportunities do not grow on trees, and so it would be nice to minimize the degree to which one has to learn things the hard way, but a certain degree of learning as you go along is not just unavoidable but affirmatively desirable. A degree of openness and adaptation is essential because every fieldwork site is unique, and things never go perfectly according to plan.

• DO be opportunistic. Stay flexible and adapt on an ongoing basis to what you actually encounter and learn. Reasonable assumptions may turn out to be wrong. People you know may clam up. People you don’t know may spill the beans. You might think that clerks will be more willing to talk than judges, or that legal academics will be easier to contact than court personnel, or that inability to speak the language is a handicap. In some cases, such assumptions will be correct. In other cases, they may be completely backward. These things may eventually make perfect sense with the benefit of hindsight, but they can be hard to know ex ante, and they call for adjustments on the fly.

1. Practical pointers

Be prepared for each interview, which means, among other things:

• Don’t waste precious interview time on factual questions you could answer on your own.
  • Do enough research to have some sense of what this specific interviewee might be able to tell you that others can’t or won’t. 

Seek help:

• Try to find a local scholar who can act as a quarterback or guide. If you need a translator, seize the opportunity to recruit someone with an interest in/ knowledge of subject matter, such as a grad student, as well as someone with knowledge of cultural protocol. Local colleagues and fellow academics may be able to help with recruitment.

Remember that interviews are interactive and potentially even collaborative. When you interview legal elites like judges and clerks, you are interacting with smart and curious people. This has many potential implications:

• For one thing, it can give outsiders an advantage. They may be more curious about you and what you are doing than they would be about a local scholar: you are an object of curiosity yourself; you don’t suffer from the contempt bred by familiarity; they may have fewer concerns about what they say coming back to haunt them.
• For another thing, your interviewees may know what you should be asking better than you do, which can be a reason to ask open-ended questions and cede some control over where the interview goes.

Take note-taking seriously.

• If you can take notes in real time, try to go over them as soon as possible, while events are still fresh in your mind and your memory can still be jogged, because otherwise you run the risk of being unable to understand your own notes, fill in blanks, remember the points you weren’t able to jot down, etc.
• If you can’t take notes in real time, write yourself a Comey memo: as soon as you can, sit down at the computer and type out as much as you can remember. If you haven’t got time for that, dictate notes to yourself on your phone and transcribe them later.

Know whether you are making progress. As Diana Kapiszewski has observed, iteration is crucial: if all your hypotheses still seem equally likely even after the first few interviews, then you are not getting much out of the interviews, and it’s time to retool.

At the same time, know when you are done. A good sign of this is that the answers start repeating themselves: you feel you’re hearing things you’ve heard before.

Above all, don’t be afraid to try. You may be pleasantly surprised by how well it goes, how much you learn, and where it all leads. Call it beginner’s luck.

Suggested citation: David S. Law, Constitutional Ethnography for Beginners, Int’l J. Const. L. Blog, May 16, 2023, at: iconnectblog.com/i-connect-symposium-peopling-constitutional-law-revisiting-constitutional-ethnography-in-the-twenty-first-century-part-v-constitutional-ethnography-for-beginner/