Empirical Legal Studies

More from Solum

Larry Solum has another nice post on this week's blog forum topic, plus a collection of links to other blogs.

Great Moments in the History of Ignorance & Division III

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 its development.

Charles Grove Haines, The Adaptation of Administrative Law and Procedure to Constitutional Theories and Principles, 34 Amer. Pol. Sci. Rev. 1, 27 (1940) (emphasis added).

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.”

"Empirical Study"

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.

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.

The Divide Still Divides

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.

Solum on Interdisciplinary Ignorance

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.

UPDATE II: Mark Graber posts. And Mark Tushnet reacts.

Great Moments in the History of Ignorance & Division II

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 disciplines.

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.

Great Qualitative Research on Personal Services Lawyers

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 professional circles. 

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.

Great Moments in the History of Ignorance & Division I

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.

Frank J. Goodnow, The Work of the American Political Science Association, 1 Proceedings of the Amer. Pol. Sci. Assoc. 35, 40-41 (1904).

Tomorrow’s Great Moment: Felix Frankfurter argues for more of a division between law and political science.

(Also, for an earlier discussion on the impact of Pritchett and Legal Realism on the Great Divide, see here.)

Interdisciplinary ignorance?

Greetings, dear gentle readers.

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.