Over the last several days, I have been thinking a lot about last week's NLR forum. I am sympathetic to the NLR agenda of (a) pluralism in research methods, and (b) greater awareness within the broader law review literature of "law in action"--i.e., empirical insights that ensure that proposed reforms have the desired effect. See Stewart's comment to his own post. Further, I share Beth Mertz's goal of building interdisciplinary communities.
That said, I don't think it is enough to conclude that these are good (or even great) ideas. Indeed, these initiatives are remarkably similar to those advanced by proponents of sociological jurisprudence and legal realism during the late 1920s and early 1930s. Yet, in the intervening decades, law and the social sciences developed on largely separate tracks. The $64,000 question is "why?"
To throw this issue into sharper relief, I want to focus on the Elena Kagan's (Dean of Harvard Law) quote in Stewart's first post:
The practice of law and the study of law are growing farther apart, to their mutual misfortune. Fewer law professors understand what it means to be a practicing lawyer or what issues lawyers are confronting. And fewer judges and lawyers look to scholars for insight or guidance. Less and less does practice inform scholarship, nor does scholarship improve practice.
Assuming arguendo that this assertion is true, it is problematic that the "Growing Disjunction" (Harry Edward's term from his famous 1992 Mich L Rev article) is growing at the same time that ELS and NLR are coming into vogue. Unless these movements are fully theorized, including how they will deliver a payoff to law students, practicing lawyers, or society at large, can we really expect them to have a lasting impact (beyond padding our own c.v.'s)?
To my mind, the institutional incentives for resolving these issues are suboptimal, just like at Yale and Columbia at the beginning of the first realist wave. See Schlegel (empirical studies lacked support because results were often at odds with realist policy agenda); Kalman (lack of funding and pay freezes at Yale, which stifled necessary appointments of social scientists); William O. Douglas, Go East, Young Man (1975) (Columbia law and social science curriculum on late 1920s blocked by law colleagues who would have to revise their teaching notes). In an exchange in the comment to Beth's initial post, Beth queried what I meant by institutional incentives. Basically this: The incentives to sustain and grow NLR, as outlined by Stewart above, are at odds with individual incentives for law professors and law schools within the current law school hierarchy.
If my goal were solely to advance NLR within the legal academy, some actions items--admittedly all very UNrealistic--would include:
- Read articles, especially empirical studies, from other disciplines that bear on substantive research. Make up the time by writing fewer articles. The smaller output will be better, and we'll all have less to read. (Note Beth's observation the greatest interdisciplinary traction at Wisc.'s Center for Psychosocial Studies were spurred by discussions of "core [disciplinary] texts rather than simply presenting our own research").
- Provide course relief for law professors who want to experiment with new or substantially revised courses, which presumably would involve the creation of new course materials. (David Schizer, the new Dean at Columbia, is purportedly pushing this idea, see NAT’L L. J., May 2, 2005, at S15; Vanderbilt got a large grant to provide course relief for law and business profs creating new law/MBA courses. Bravo!) Otherwise, professors have a strong incentive to overemphasize scholarly publication without developing a strong nexus to legal education and practice.
- Take student evaluations of these new courses (indeed, all courses) seriously; follow-up with these students as they enter practice and compare them with a control group. I suspect students with a deeper understanding of "law in action" will fare better and have deeper respect for the value of their legal education--and perhaps they'll contribute more to the annual fund! These students may also look for and value empirical studies as they develop as lawyers and policymakers, thus creating a nonacademic market for ELS and NLR scholarship.
- Take service as seriously as scholarship; professors should get "credit" for presenting their research to practicing lawyers as CLE, even if it slows the production of yet more research. If the lawyers laugh at how irrelevant the work is, perhaps its time to rethink the value of the scholarship. (Feedback from practicing lawyers is qualitative empirical research.)
- Spatially move either the law school next to the principal social science buildings, or build a new social science building next to (and connected with) the law school. It is amazing how seemingly trivial changes in spatial proximity and traffic patterns can profoundly alter the number of serendipitious contacts with colleagues in other departments.
Professors interested in lateral mobility might not buy into an agenda of fewer articles and more "core" reading and discussion--will the market or tenure committees properly disentangle higher quality from lower quantity? Quantity is a powerful heuristic! And deans worried about next year's USNWR might have other ideas for the allocating scarce resources, especially toward teaching and course development--after all, it is hard for a single institution to capture a full return on any investment in any movement that spawns multiple law schools and disciplines.
If New Legal Realism is going to succeed, we need to be realistic--and creative--regarding our own institutions.