Josh Wright has posted Part V of his series on the Future of Law and Economics, which includes a reply from Henry Manne. Here is a taste of Manne:
I really do not think that we should be bothering in law schools with either teaching or research that in some ways does no make for better lawyers or for better legal scholars (not necessarily the same thing, but again there is convergence in the long run). I do not see any reason for the law reviews to be full of arcane economic jargon that will never be used by any practicing lawyer or comprehended by any sitting judge (with some very rare exceptions). And here I get to my main point. I think that most of that is the result of the very peculiar “market” forces that operate in universities and not from any thought-out rationale of making better laws or lawyers. (See my “The Political Economy of Modern Universities”). In other words, it is part of the general pattern of professors writing for each other and not for the outside world.
Read the entire illuminating post. As readers of LTB might guess, I disagree with the "peculiar market forces" explanation for the orientation of most research towards an audience composed of other researchers. An alternative hypothesis is that academic research is not oriented towards profit maximization at all, but instead is characteristically oriented towards the discovery and production of knowledge. The goal is truth, not profits. Of course, this doesn't mean that incentives don't play a role: they obviously do, and they include fame, honor, prestige, various academic perks, in addition to monetary incentives. But in a well-functioning academic environment these incentives are aligned towards the production of knowledge and encourage scholarly excellence.
Manne actually grasps this point when he writes, "As you [Wright] and I agree, Law and Economics has been of extraordinary value to legal education. It took it out of the doldrums of anti-intellectualism and mechanical thinking about law, and made law schools respectable partners in the greater role of universities." (After correspondence with Larry Ribstein, I am not sure whether Manne does (or does not) grasp or agree with the idea that well-functioning universities align incentives towards the production of knowledge & encouraging scholarly excellence. Please read Manne's full remarks for a better sense of his point.) The law and economics movement responded to the intellectual conundrum that post-realist American legal thought had created for itself. Attempts to synthesize the instrumentalism of the American Legal Realists with a distinctive role for doctrinal law required that legal scholars make arguments of policy and principle: the "reasoned elaboration" that was the watchword of the Law and Process school is paradigmantic in this regard. But the skills taught in law schools (case crunching and code crunching) do not provide a methodology for making rigorous arguments about the empirical effects of legal rules or the normative criteria by which they should be evaluated. As law professors reached out to other disciplines to make such arguments, they began to see themselves as "translators," who could synthesize the output of other disciplines and incorporate it in legal scholarship. The problem is that such translation requires training; without adequate knowledge of the other discipline, translations were bound to be garbled and incomplete. When law schools are located in major research universities, these garbled translations can come to the attention of the home discipline--who may sit, for example, on university-wide tenure committees. When legal scholarship consisted of code and case crunching, such committees had to defer to the expertise of law faculties and external reviewers on the quality of the work. Not so, when the scholarship is itself normative theory, economics, or empirical.
The next natural step in the evolution of the legal academy was interdisciplinarity. At the most basic level, interdisciplinarity involves rigorous training in another discipline. The most effective way for law schools to acquire scholars with such training is to hire PhDs in other disciplines, although there are many successful examples of retooling. The difficulty with the interdisciplinary model is that it creates centripetal force: scholars whose academic training is in another discipline such as economics are hurled away from the common enterprise of studying law and are attracted by the gravitational force of the values and prestige-hierarchy of their "home" discipline. For this reason, the interdisciplinary model is potentially unstable, and Josh Wright's series of posts examines that instability in the context of law and economics.
If this diagnosis is correct, then the legal academy stands at a crossroads. One can imagine a variety of possible futures. Law schools might begin to realize that the study of law must become a distinctive multidisciplinary enterprise: this is the path taken by political science, where political phenomena are studies from a variety of perspectives, including rational choice & formal modeling, empirical studies, political theory, political history, and so forth. Or one can imagine a return to the idea of law schools as professional schools that emphasize doctrine--although this would require an intellectual foundation that justified the return to doctrinalism. Or perhaps the legal academy will segment itself--with most law schools returning to the trade school model that emphasizes the training of practising lawyers and the law schools of major research universities functioning to produce elite lawyers, legal academics, and multidisciplinary research. Or something else.
When we think about the the future of the legal academy, time frame is important. Big changes are likely to seem impossible--until suddenly they are conceivable, then starting, then already a fait accompli. Our current thinking about the future of the legal academy is shaped by institutional forces and sociology of the status quo. That means that most legal academics assume that the professional school model will be with us forever, but interdisciplinarity is also here to stay. The tension between these two beliefs requires an elaborate set of rationalizations--about the value of rigorous interdisciplinary work to practising lawyers and the role of legally trained law professors as translators. These rationalizations seem like obvious truths: they function as legal academic dogmas. But there is a funny thing about dogmas: once your faith in them is shaken, they can suddenly be cast in a new light. Obvious truths become superstitions. "No one can doubt" becomes "no one ever really believed."
