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02 October 2006

Comments

Mark A. Graber

Some thoughts.

1. Rather important to note that both political scientists and law professors are a diverse lot. While some political scientists come to law with empirical interests typical of many students in American politics, others come to law with normative interests typical of many students in political theory. In this respect consider whether the law/political science distinction makes any sense of possible distinctions between such students of Walter Murphy as Jim Fleming (law), Mark Brandon (joint), and Judy Failer (political science). We might also toss in Sot Barber (political science) as an honorary Murphy student.

2. My sense is that rather than a great divide between political scientists and lawyers a new divide may be forming with lawyers and political science on one side who are attracted to statistics and rational choice, and lawyers and political science on the other side who are attracted to more historical/institutional analysis. But there are interesting differences still between law and political scientists on the same side, and more important, the divide between behaviorial and institutionalist work seems far less than previous. All salutary developments in my opinion.

William Henderson

Frank,

Thanks for opening this forum. At the outset, I have to confess that Gerry Rosenberg taught my Law & Social Science class during my 3L year at Chicago. During that quarter, we have several readings from the attudinalist literature, which I found much more illuminating than my Con Law: Equal Protection and Sub Due Process course.

I subsequently read the Great Divide and largely agreed with it. The attitudinalists made empirical claims of Supreme Court decisions (and to a lesser extent, federal appellate decisions). Law professors have not, by and large, directly engaged this literature--a recent exception is Sunstein's recent book, Are Judges Political?, which essentially acknowledges (rather than rebuts) the political dimensions of judicial decisionmaking.

That said, I think we can learn a lot--i.e., create knowledge--by informing political science methods with lawyers' more nuanced institutional knowledge of how the legal system actually works. Anyone who has clerked for a judge realizes that law is not all politics. But politics clearly affects some outcomes, especially at the Sup Ct level. Further, Con Law classes in which professors endlessly lament poorly reasoned judicial opinions are, in my opinion, misleading and counterproductive. Gerry was absolutely right to ridicule the legal academy's insular approach to jurisprudence.

Ideally, I would like to see law professors and political science answering the same research questions in companion law review articles. This would throw the difference approaches into fuller relief and stimulate a more concrete dialogue of relative merits. Hopefully these dialogues will find their way into the law school classrooms.

bh.

Tracy Lightcap

I'm only going to address the first question; I have a life and the Paper From Hell(tm) is calling.

And the answer is (drum roll, please): it depends on how you look at scholarship on the courts. Most of the scholarly interaction mentioned is concerned with policy decisions by appellate courts. If we gage both legal and political science scholars by their attention to this rather narrow area, then sure bet, there is more attention to each others fields and for that three cheers.

But what if we look at courts another way? Suppose we instead conceive of the role of courts as being adjuncts of state power. If we look at courts the same way we look at, say, police departments, the picture of what's important and what we need to know becomes much different. Then the characteristics of court systems as organizations for the application of social control comes front and center. This does, of course, include the limitations placed on court decisions by appellate policy; I'm not saying that what most law and court types are most concerned with isn't vitally important. But it also includes study of how courts work as organizations, what kinds of institutional borders do they maintain, what kinds of power do they exercise over other governmental concerns and what are its limitations, how are the courts administered, and a host of other problems. What I'm actually saying here is that we have a nasty tendency in both the law and in pol sci to treat courts differently then other parts of government when many of the most vital questions have more to do with everyday functions rather than whether The Nine are abroad in the land.

And there we find both sides of the equation lacking. Political scienctists seem to be branching out to the "law and society" side more than the law faculties today, reversing a long trend in the opposite direction. Bringing the sociologists and antropologists more into the mix would be good and more law faculties have done that. How to get a more relentlessly multi-disciplinary approach, however, is a question I can't answer. Not, of course, that that would stop me from having an opinion on it.

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