I started with Frank Goodnow’s 1904 presidential address at
the first annual meeting of the American Political Science Association. Today’s
Great Moment comes from Charles Grove Haines’ 1940 presidential address at the APSA’s 35th
annual meeting. Haines was one of Goodnow’s students, and like
Goodnow, one of the great public law scholars. See Glendon Schubert, The Future of Public Law, 34 Geo.
Wash.L. Rev. 593, 603 (1965-1966). In this excerpt, Haines describes the growing
divide between law and political science:
In the early years, when political science was becoming a
separate and independent field among the social sciences, public law, a subject
at this time accorded little attention in the curricula of law schools, was for
many of the members of the new organization one of the major lines of interest.
Gradually the scope of work coming within the ambit of the American Political
Science Association has been broadened and enriched by the exploration,
analysis, and interpretation of other phases of political ideas and phenomena,
with the result that political science may truly be regarded as no longer under
the bondage of the lawyers. On the other hand, public law has now become one of
the important subjects of instruction in law school curricula, and with this
trend has come a decline of the importance of this field of instruction in
departments of political science. In fact, the pendulum has swung so far in the
opposite direction that there are some who maintain that the only deserving
place for public law courses in which the case method of instruction is used is
in the law schools. In my opinion, such views are incompatible with the best
interests of legal instruction both in the law schools and in departments of
political science. Public law always has been and continues to be primarily
public in its nature, significance, and implications. It belongs, therefore, as
much to the field of the political and social sciences as it does to the field
of the law, and political and social scientists as well as lawyers may well
cooperate in the consideration and evaluation of the vital problems involved in
Tomorrow’s Final and Really Great Moment: Glendon Schubert describes legal
research as “primitive,” explains why political scientists started ignoring
their public law colleagues, and calls the study of public law in law schools “ghastly.”
I have posted before about the Wake Forest Law Review's interest in empirical work, but even I was surprised to see the headings on the cover of their most recent issue. The "ARTICLES AND ESSAYS" heading was followed by "EMPIRICAL STUDY." Maybe the glass is half full.
Well, Larry Solum's great discussion of this colluquy stepped on much I had to say. I commend it. For now, I will post about the progress, which I think is pretty considerable. I did a quick Westlaw check and found that Gerry's book, The Hollow Hope, appears to have been cited over 900 times! The vast majority of these articles are in law reviews, written by law professors. That is more citations than the average law professor receives in a lifetime, and I'd wager that very, very few legal books get so many citations. It could have been cited more, but that's a lot.
As another check, I searched for references to Segal & Spaeth, a fairly iconic source of political science literature on judicial decisionmaking. There were nearly 500 such references (Gerry, you're killing them). In the late 1990s, they received about 20 cites a year, which jumped to 40 cites per year in 2000-2002 and about 60 cites per year since. I doubt this is explained by the fact they keep pumping out research, because the vast majority of these were references to one of their Attitudinal Model books (the first of which was published in 1993). This shows a steadily increasing awareness of the literature, I think, though even today's numbers should be greater.
Lawprofs are not oblivious to the social science research. Economic analysis has pretty much taken over several areas of law that were previously almost entirely doctrinal or philosophical. Economics is not a perfect parallel but it is instructive. How can political science approach this influence? It needs a great champion (I am no Posner). I would consider Lee Epstein's move to Northwestern a very significant step in the right direction, and I expect her to have material influence on lawprofs. The existence of this blog is another significant step. Law schools are increasingly hiring Ph.Ds. There has been steady progress I see, and it is unrealistic to expect an overnight transformation. The glass is far from full, but I see it filling.
In contrast to rush-hour traffic in Chicago, the intersection of empirical research in law and political science remains pretty empty. Deep, institutional, problems remain that provide major obstacle to change. Let me explain.
Writing six years ago, I noted that legal academics were blissfully ignorant of social science literature on courts. I argued that this was a function of their training, their professional culture, and the insulation of intellectual life in the legal academy.
I agree with Frank Cross that the situation has improved . That is, there are now small numbers of legal academics who are trained in the social sciences and who are competent users of social scientific methods. As a caveat, economics needs to be put to the side. For several decades there has been a cadre of J.D./Ph.D.’s in economics who have brought the tools of their training to the study of the law. But the number of legal academics with training in other social science disciplines remains tiny. I find it telling that I personally know most of the contributors to this Empirical Legal Studies blog and had the pleasure of teaching most of its founders and some of its most prolific contributors. That may be touching but it doesn’t say much for the depth of social science research in the legal academy. The Marines may be looking for a “few good men” but to mesh the two fields requires substantially more than that.
Frank suggests that legal academics are “much better attuned to political science research than they were...” While something is better than nothing, and it would be very hard for legal academics not to be better attuned, my impression is that little has changed. Hiring a single faculty member won’t do the trick. The culture of scholarly inquiry needs to be changed. It would be interesting to think of ways this could be measured. Simply asking legal academics if they read social science literature on courts doesn’t probe deeply enough. Perhaps students of culture who read this blog have some ideas.
Over at the Legal Theory Blog, Larry Solum has a response to
Frank Cross’ post on interdisciplinary ignorance. One of his conclusions: “[T]he
legal academy continues to reinforce interdisciplinary ignorance. As a profession, we are failing badly in the
training of future legal academics.”
UPDATE: Daniel Solove at Concurring Opinions responds to Solum responding to Cross.
While teaching at Harvard in the early 1930s, Hugh Langdon
Elsbree published a book entitled, Interstate
Transmission of Electric Power: A Study in the Conflict of State and Federal
Jurisdictions (Harvard 1931). Elsbree later served as the director of the Legislative
Reference Service, the precursor to the Congressional Research Service. He died just two years ago, at age 100.
The relevance of Elsbree and his book is that
Felix Frankfurter reviewed it for the Harvard
Law Review, and in doing so, he offered some thoughts on the great divide. Frankfurter
was not terribly enthusiastic about the book, complaining that Elsbree was “too awed by
judicial language.” Felix Frankfurter, Book Review, 45 Harv. L. Rev. 762, 763
(1931-1932). Frankfurter was also unhappy with political scientists and
economists in general. He argued that they should attend to their own responsibilities rather than those of lawyers. So here is today’s Great
Moment in the History of Ignorance and Division, a call for more division:
Economists and political scientists rightly criticize law
and lawyers for their formalism. Legal decisions, say our critics, are too
often exercises in dialectic, and do not grow out of the soil of life. This
charge finds deep sympathy in my breast. But an even greater dissatisfaction
that I have with American public law decisions is the snake-like fascination
that their sterile dialectic exercises over economists and political
scientists. We lawyers are dependent upon these specialists for a critique of the
economic, social, and political assumptions which so often underlie what
purport to be technical legal doctrines. Yet, more often than not, instead of
subjecting such decisions to the test of economic and political fact and
wisdom, the economists and political scientists are subdued by the materials of
the law and themselves become legal dialecticians.... What we have a right to
expect from economists and political scientists is an analysis of what the true
governmental problems are, in the light of what actually goes on in the world
and wholly apart from the technicalities of American constitutional law. Only
after we have such an analysis is it the function of the American lawyer either
to find within the existing body of law resources adequate to reconcile law
with wisdom, or, if that reconciliation is impossible, to fashion new law.
Until the economists and political scientists attend to their special tasks and
we lawyers to ours and each has an awareness of the others’ problems, we shall
continue to have what Alvin Johnson calls the cross-sterilization of the social
Id. at 763-64.
Tomorrow’s Great Moment: Charles Haines, another past president of the APSA, declares that
political science is “no longer under the bondage of the lawyers.”
*For more on Elsbree, here are page 1 and page 2 of the tribute offered to him by Representative Robert Ney in the Congressional Record.
As noted in an earlier post, the theoretical framework for my Law Firms as a Business Organization class is the Heinz-Laumann two-hemisphere theory, which posits that lawyers fall into one
of two distinct "hemispheres": (1) lawyers who serve organizational
clients, such as corporations, institutions, and labor unions; or (2)
lawyers that provide personal services to individuals and small
businesses. Heinz and Laumann created the hemisphere typology because their
Chicago Lawyers research documented that these two groups had very little in common;
they attended different law schools, hailed from different
socio-economic and religious backgrounds, belonged to different bar
organizations, and otherwise traveled in completely separate social and
Like lots of other law professors, I don't have much firsthand exposure to the personal services hemisphere. Fortunately, there is some terrific sociolegal research that fills this void. Over the last two weeks, my class has covered excerpts from the following books:
Lynn Mather, Craig A. McEwen, & Richard J. Maiman, Divorce Lawyers at Work: Varieties of Professionalism in Practice (Oxford 2001). This book, written by a trio of sociologists and political scientists, is a brilliant ethnography of New England divorce lawyers. We read Chapter 2, which offers five stylized examples of attorneys encountered during the field research. It is fascinating to learn how lawyers differ in their ability and willingness to help clients deal with the emotional issue surrounding the breakup of a marriage; how and why lawyers develop preferences for male or female clients--which surprised me; how a new breed of largely female divorce specialists has revolutionized the practice of family law; and how inattention to business fundamentals can reap havoc on a lawyer's life and ultimately undermine service to clients.
This week, I’ll offer some historical highlights on the current blog forum topic, the divide between law and political science. I’ll rely first on Frank
Goodnow (1859-1939) for some thoughts on the relationship between the two disciplines at the
turn of the century, a time when there was much less division.
Goodnow, the APSA’s first president, was a member of the
Department of Public Law and Jurisprudence at Columbia. Along with John Burgess, Munroe
Smith, and John Bassett Moore, he was one of the leading members of the
department. Like Goodnow, Smith and Moore served as APSA
presidents. And all four held joint appointments in the law school. During this
early period of organized political science, public law courses were often of greater interest to political
scientists than law professors, and for a time, these four taught the only courses in the law school on constitutional law, administrative law, international law, and even Roman law. See Glendon Schubert, The Future of Public Law, 34 Geo. Wash.L. Rev. 593, 594 (1965-1966).
In the first presidential address to the APSA in 1904, Goodnow
discussed the subject matter of political science, including one of the “most
important” subjects, public law. So how would law be studied by political
scientists? How would it be different than the study of law by lawyers? According to Goodnow:
Unless we conceive of all law as a part of Political
Science, it becomes necessary then to differentiate Political Science from
legal science. Strictly speaking, of course all law which does not affect the
relations of the State and its officers is to be assigned to legal rather than
to Political Science.... But it is none the less true that a knowledge of the
private law is necessary to one who would understand the methods and operations
of what are known as political bodies. Furthermore, the points of contact
between the private and the public law are so many and the contact is often so
close that a knowledge of the private law is really necessary to one who would
be a sound public lawyer.... Finally, many of the rules of private law are adopted
largely because of their influence upon social and political conditions.... For
these reasons the American Political Science Association has included among the
subjects which are not foreign to it comparative legislation and historical and
comparative jurisprudence, whether that legislation or jurisprudence is public
or private. It will probably be true, however, that the distinctly private
legal subjects will not receive at our hands any very exhaustive treatment.
This begins a blog colloquy on the intersection of empirical research in law and political science. The title derives from my 1997 article in the Northwestern Law Review on the “unfortunate interdisciplinary ignorance” that existed when researchers in the two areas addressed overlapping issues. This article, by the way, is brilliant and seminal and should be universally read and cited. I primarily criticized law school researchers for their unawareness of highly relevant political science research but also noted that political scientists also took an unrealistically cramped view of the workings of the legal system.
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.” Nor did he think much of legal publication outlets. I think he went a little easy on political scientists and was a bit harsh on law professors, but he cited me, so I cut him some slack.
The topic is well-suited for this blog, and our discussion could take several paths. I might suggest the following questions.
1.Has the situation improved? I believe it is much improved (and Jeff Segal gives me credit here, but I am too modest to accept it). I think legal academics are much better attuned to political science research than they were (though imperfection remains) and political scientists are more involved with legal academics. Law schools’ academic standards are moving in the direction of those of social science.
2. How can we facilitate enhanced interaction? There will be a good showing from political scientists at the initial Conference on Empirical Legal Studies this month. But they will be addressing a very small, self selected group of law professors who have already established their interest. This should be broadened.
3.Should the disciplines differ? There are some in law who argue that legal scholars focus appropriately on the internal workings of the system, while political scientists focus on its external meaning. I think there is some merit in this distinction – professional schools must address the internal operations of the system – but it is far too confining for legal research.
4. Why are political scientists so whiny?
Well, the next move is Gerry’s. He may choose one of these paths or strike out on his own, and I shall follow his lead.
Daniel Solove has posted the beta version of his latest Law Professor Blogger Census at Concurring Opinions and is looking for any updates or corrections. According to the current count, 290 law professors are blogging. Even allowing for one needed update (-1 for me), the University of Chicago remains in the lead with 16 faculty bloggers. Georgetown is close behind with 14.
This week’s blog forum takes up the relationship between law
and political science. Our guests for the discussion are Frank Cross of the University of Texas and Gerald Rosenberg of the University of Chicago. Several years
ago, Cross (1997) and Rosenberg
(2000) both expressed similar concerns about the gulf between legal scholars
and political scientists:
“The attitudinal model ascribes judicial decisions almost
entirely to politics, not precedents. To date, legal scholarship has been
remarkably oblivious to this large and mounting body of political science
scholarship on courts. Some political scientists have been correspondingly
unconscious of the legal model.” Frank B. Cross, Political Science and the New Legal Realism: A Case of Unfortunate
Interdisciplinary Ignorance, 92 Nw. U.L. Rev. 251, 252-53 (1997);
“Today, legal academics and political scientists inhabit different
worlds with little in common. If they communicate at all, they can barely hear
each other; they stand on opposite sides of a great divide, and they are
looking in opposite directions.” Gerald Rosenberg, Across the Great Divide (Between Law and Political Science), 3
Green Bag 2d 267, 267 (2000).
We are very pleased that Cross and Rosenberg have offered to revisit this topic on the ELS Blog. Much has changed in the past few years. Empirical and interdisciplinary
scholarship would seem to be a growth industry in the law schools, which suggests the unfortunate situation identified by Cross and Rosenberg may be improving. So is interdisciplinary
ignorance giving way to understanding? Is the great
divide narrowing? Stay tuned.