Interdisciplinary Ignorance and the Legal Academics of the Future

Frank Cross of the University of Texas has a very nice post on Empirical Legal Studies entitled Interdisciplinary ignorance?  Here is a taste:

In 2000, Gerry Rosenberg wrote an article in the Green Bag that took legal academics to task for ignoring the research of political science. This article was fine, I suppose, though not nearly so interesting as mine. He characterized law schools as insular, untrained in other fields, such that legal academics “routinely make absurd claims that would be rejected out of hand by any political scientist familiar with the literature in the field.”

I agree with Frank that this situation has improved--on both sides of the divide.  But it is still the case that there is a shocking lack of trandisciplinary knowledge about law.  Legal academics, political scientists, philosophers, economists, historians, sociologists, and psychologists tend to dwell in their own disciplinary worlds.  These worlds are not hermetically sealed--information and ideas leak through what we might think of as a "cone of silence."  Information passes imperfectly into the legal academy and then disperses slowly--resulting in what might be called a "20 year lag."  An idea of real importance to law has dispersed in the legal academy about twenty years after it made a splash in another discipline.

A few more random thoughts about "interdisciplinary ignorance":

--One of the most fundamental forms of ignorance is ignorance of methodologies, tools, and disciplinary assumptions.  Historians think lawyers don't know how to do history and lawyers think that historians don't know how to read cases and statutes.  The perennial debate about law office history and history common table law is, in no small part, a reflection of the different methods and questions the two disciplines employ.

--Interdisciplinary ignorance is a two way street.  Not long ago I was on a panel at a very prestigious meeting in another discipline.  I was the commentator--those on the panel all had PhDs in the discipline.  The papers were generally good--but there was one case in which the entire paper was based on an egregiously bad misreading of a case.  Correction of the error would require a complete rewrite, from top to bottom, with either an entirely new example or a radical change in thesis.  The error resulted from the fact that political scientists are not trained in "legal hermeneutics"--the tool set that is taught in the first year of law school.

--Intradisciplinary ignorance is almost as significant a problem as is interdisciplinary ignorance.  Political scientist who work in the attitudinalist tradition or who do formal modeling (about law) are frequently appalling ignorant of the work of "new institutionalists"--although the reverse is true to a much lesser degree.

--The JD-PhD combination is only an incomplete solution to the problem of interdisciplinary ignorance.  The reason for this is blindingly obvious.  The PhD half of the JD-PhD is in a single discipline, but the skills and knowledge necessary to overcome interdisciplinary ignorance are transdisciplinary in nature.  The "complete legal academic"--someone who has the ability to acquire and assess knowledge from the core disciplinary perspectives relevant to contemporary legal scholarship needs basic competence in at least five areas beyond legal doctrine (legal hermeneutics & case or code crunching):

1. Normative legal theory--every legal academic should be able to understand the structure and assumptions of normative legal arguments.  This requires a basic grounding in the fundamental concepts of moral and political philosophy, metaethics, and analytic jurisprudence.

2. Law and economics--every legal academic should understand the basic concepts of contemporary law and economics (including basic microeconomics).  The requires a knowledge of fundamental ideas, like Pareto, Kaldor-Hicks, and Bergson-Samuelson social welfare functions.  It also requires familiarity with the big ideas of applied law and economics, like the Coase theorem.

3. Empirical legal methods--every legal academic should be able to interpret an empirical study, grasp the meaning of measures of statistical significance, understand the limits of basic empirical methods such as survey research, and understand the basic statistical tools, such as multiple regression analysis.

4. Positive Political Theory & Attitudinalism--every legal academic should have a solid grounding in the quantitative & formal methods that political scientists use to study law.  This means a basic grasp of the attitudinal model and the results of attitudinalist research, and the ability to understand and interpret the game-theoretic models deployed by Positive Political Theory.

5. Social Science & History--This is a residual category designed to capture the idea that there are important ideas from sociology, psychology, anthropology, and history with which legal academics need a basic familiarity.  For example, every legal academic should understand debates over the role functionalist explanations in the social science.  Every legal academic should have an exposure to the most important work about law done by sociologists, psychologists, and historians.

It goes without saying that acquiring a PhD in philosophy is unlikely to expose one to Positive Political Theory, and that a PhD in law and economics is unlikely to provide anything more than a set of misconceptions about the moral foundations of normative law and economics.  No JD program is designed to provide these interdisciplinary skills, and until very recently, no SJD program was even heading in this direction.  As a consequence, the legal academy continues to reinforce interdisciplinary ignorance.  As a profession, we are failing badly in the training of future legal academics.

At almost every law school, ranked high and low, it is taken as a given that the mission of law schools is to train lawyers.  That mission can be interpreted narrowly (the trade school model) or broadly (the liberal education in law).  But this raises an interesting question.  If the only mission of law schools is to train lawyers, then who is charged with the mission of rigorously training legal academics with transdisciplinary competence? Surely not PhD programs in philosophy, economics, political science, history, psychology, or sociology.  Those programs are directed at their own disciplines: most of what they teach is not directly relevant to the study of law and all of them omit most of the interdisciplinary knowledge and skills that are relevant.  Surely not the old-fashioned SJD program that didn't even have a curriculum, much less a rigorous transdisciplinary curriculum.  Surely not the JD programs of the elite law schools combined with clerkships and high level practice experience.  Surely not the VAP and fellowship programs that have no curriculum at all.  In other words, surely not the institutions that currently do train legal academics.

Comments

[Orin Kerr]

Larry,

I think your notion of a "complete legal academic" is somewhat particular to your interests. For example, if you teach and write in the area of tax law, are you really an incomplete legal academic if you don't know a lot about moral and political philosophy, metaethics, and analytic jurisprudence? If you teach and write in the area of family law, do you really need to understand and interpret the game-theoretic models deployed by Positive Political Theory?

[Frank Cross]

I think that goes to what makes one a complete legal academic. You don't need these fields of expertise, if your analysis is entirely descriptive and doctrinal.

But I would think tax law profs should have a familiarity with moral and political philosophy, if they are going to propose any changes in tax law, at least. And a family law practioner might not need positive political theory, but it is just a subdivision of game theory. And I imagine game theory permeates some parts of family law, such as that dealing with prenuptial agreements and post-divorce arrangemetns

[Chris]

I'm not sure it's really possible to be a "complete legal academic" anymore. There is just too much to know.

I really wish there were more lawyers & who knew more about philosophy of language, of course, and to be a complete legal academic, I suppose that I would put that on the list of things you'd need to know. But we can't expect very many people to know that, *and* economics, *and* all the rest. So we need to have faculties with lots of different people available to read drafts.

No hyperlink capability in the comments. And no italicization capability. So sad not to be able to promote my phi-language-involving article, but more subtly, with a hyperlink. But here it is, more blatantly:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=798466

[Elizabeth Mertz]

Empirical methods, of course, include far more than statistics. I would think that the basic skills needed for understanding good qualitative empirical research might be just as -- or more -- important to students of family law as the quantitative skills. And I have heard many quantitative researchers recently expressing deep concern about pushing legal academics to absorb a surface-level understanding of statistical methods without the deeper theoretical matrices within which those methods are grounded in particular social science fields. I have heard that what you get without those deeper theoretical matrices is referred to as "data dredging," and it is not held in high repute. (Note that one of the earlier meanings of the word "empirical" was precisely an overly slavish devotion to the details of observation without a theory to guide one in interpreting the results....a meaning that we hope will remain more a footnote in history than a description of current events!)

In general, the very interesting ideas in the exchanges here (and on other blogs such as ELS) are focusing on precisely the questions that folks involved in new legal realism conferences and discussions care about -- the process by which we translate between different disciplines. (see Foreword to the New Legal Realism Symposium in the Wisconsin Law Review (Vol. 2005, No. 2)). An assumption of transparent translation -- whether by legal academics or social scientists -- frequently leads to very shallow or misleading results.

[Travis]

Perhaps the five skills necessary for an individual to be considered a "complete legal academic," are instead necessary for the faculty at a law school to be considered a "complete legal academic faculty."

Based on my experience as a grad student in political science, I think I would find no "complete political scientists" if I insisted that they master all aspects of the field, including diverse methodologies and substantive issue areas. Instead a good department (or law school) will try to include many academics with diverse skills, most of whom adhere to the central research or pedadogical principle of the department (law school).