Again moving forward through time, today’s fourth and final Great Moment comes from
the 1960s, a bit of doom and gloom about the state of public law and legal
education. Admittedly, it’s not all bad in this period. In the mid-1960s the Harvard Law Review published a symposium
with contributions from five political scientists and a response from Lon
Fuller. See Joel B. Grossman et al., A Symposium: Social Science Approaches to
the Judicial Process, 79 Harv. L. Rev. 1551-1628 (1965-1966). But this effort at bridge-building seems overshadowed by the extent of the divide between
students of judicial behavior and students of legal doctrine. Glendon Schubert
elaborates in a thorough discussion of the development and decline of public law
as a field. He even offers a few suggestions for making public law in law schools “less
ghastly.” Glendon Schubert, The Future of
Public Law, 34
Schubert, whom Jeffrey Segal describes as the “founder of the attitudinal model,” provides many gems in this article. See Jeffrey A. Segal, Glendon Schubert: The Judicial Mind, in The Pioneers of Judicial Behavior 78, 78 (Nancy Maveety ed. 2003). Here are three:
To be perfectly blunt, legal research remains today at the primitive level of development, as a science, that generally characterized political science one or two generations ago. By and large, legal method is no more in phase with modern science than it was in the days of Austin, or (better) Aquinas, or (best) Aristotle, all of the talk about “legal science” and computerized methods of retrieving legal data to the contrary notwithstanding.
Schubert, supra, at 600.
While law school instruction in public law remained in rigor mortis after the Burgesses and the Goodnows passed from the teaching scene, political science work in public law went through a long period of degeneration, in which the gains achieved by the preeminence of a few outstanding scholars (e.g., Corwin, Cushman, Haines, Mason, and Swisher) could not compensate for the bland mediocrity that characterized the field generally. Most of the persons who taught political science courses in public law during the long period spanned by the two world wars either were themselves lawyers or (which was often worse) were imitators of lawyers whose pedagogical ideal was the stereotyped law school-type course in public law, of which they offered a watered-down version for political science undergraduate students. Such persons did little research; and what little they did was in the legal tradition and was published mostly in law rather than in political science journals. No wonder other political scientists ignored their public law colleagues.
Id. at 602-603.
Public law, in political science, is a rapidly dying tradition; and it seems certain that, no matter what happens in the law schools, students of politics increasingly are going to study the judicial process and judicial behavior instead of constitutional doctrine. It is by no means certain, at this time, what direction legal study will choose, although the prognosis cannot be very favorable, if one is to judge in the light of the governing precedents of the past half dozen decades.
Id. at 612.
I don’t want to end this blog forum on a dispiriting note, so I’ll end with Pritchett: “Hopefully the field of public law, having demonstrated that its data can be put on scalograms and measured by a Shapely-Shubik power index, will remain catholic enough to accommodate those political scientists who continue to find interest in the data of constitutional history, judicial biography, jurisprudence, the philosophies of judges, and commentaries on Supreme Court decisions.” C. Herman Pritchett, Public Law and Judicial Behavior, 30 J. of Politics 480, 509 (1968).