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05 October 2006

Comments

Rick Lempert

On law profs footnoting what they haven't read unlike soc sci profs, I think the reason is the footnoting fetish of law reviews. If we abolished unnecessary footnoting we would get rid of some of the footnoting complained about. But it is also the case that "find cite" footnotes often contemplate cites to what an author has read and does know; he/she just doesn't have the time to look it up.
On soc. scientists who get the law wrong, it depends on what the problem is. If it is to explore the psychology of responses to hearsay, it may not matter whether the hearsay would or would not be admissible under an exception. Similarly there are questions a soc. scientist could investigate in which asking mock jurors whether hearsay should be admissible makes sense, though that is not a juror task and other questions where the ignorance of how the law allocates responsibility for deciding admissibility would make the research irrelevant if not ridiculous. The basic point is that whether a correct understanding of the law matters depends on the topic being explored and the implications a researcher expects to derive from the analysis. Social scientists are too often prone to think their studies have important implications for legal policy and are likely to be way off base if they get the law wrong.

Rick

Sean Wilson

I'm curious, is the suggestion here that when law professors cite attitudinal literature, it is a sign that the legal academy is now more cognizant of something that advances knowledge? This is a problematic suggestion. The data in the Supreme Court data base never supported the theory that political attitudes dominate the Court. It only supported the theory that an attitudinal component is present within the Court's decision structure -- something that non-attitudinalists like Dworkin have always believed. See my SSRN paper:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=922183

So if anyone, legal or otherwise, relies upon statistical misinformation, they face the paradox of knowledge becoming worse as disciplines become more familiar. The point, then, is this: there is much more to interdisciplinary thought than the reading of the headlines of other people's news. To really conquer ignorance, you must know not what another says, but whether the opinion's basis is valid. And to really do that properly, I agree with Larry Solum: you must know history, philosophy, law, statistics, empirical modeling, and more law.

William Henderson

Gerry,

The "find source" practice predates the last few years. On balance, if more attitudinalist literature is being cited, then more of it is being read--but I agree, there is not a 1 to 1 relationship between citation and actually reading the source.

True scholarship requires that we actually read what we cite. The reference list in a typically social science article is 10 to 20 sources. The disparity with most law reviews is perhaps telling. bh.

Jeremy A. Blumenthal

This is a great set of cross-blog threads. Some thoughts:

(1) My recurring soapbox that ELS isn’t only about economic analysis or political science, but includes experimental approaches, including (especially) psychology [unsurprising disclaimer: my social science background is in social psychology].

(2) Psycholegal work is a good example of a number of the issues raised here. First, there have long been a number of joint J.D./Ph.D. law/psych programs explicitly geared toward interdisciplinary research – that is, focusing not just on getting both degrees, but on how the two disciplines interact and inform each other. Nebraska, though it isn’t the only one, is quite a good example, and has produced some very good legal academics.

Second, though I agree there is a lot of flawed social science work done by legal academics, the street going the other way isn’t so small, either. My usual examples are papers by psychologists studying hearsay. One had a lovely experimental design seeing whether mock jurors could ignore hearsay evidence, but didn’t realize that the “hearsay” in the treatment condition actually fell under a hearsay exception. Another examined whether mock jurors thought certain hearsay evidence should be admissible – well, judging admissibility isn’t the jury’s role.

Peer review, while very important, won’t necessarily catch such problems – for instance, a psychology journal with psychologist peer reviewers might not notice the hearsay exception concern. It’s incumbent on the researcher to know both fields in which he or she is writing. If that’s done through self-education – formal or informal – then terrific. But, as some have said on here before, collaboration between people in different fields is just as good or even better. You get the expertise from both fields, and add the benefit of idea-bouncing. One of the really good examples, IMHO, is a Cornell L Rev article by Richard Friedman and Steve Ceci on child suggestibility – Friedman an expert on the law, Ceci on the psychology research.

Rant over. Thanks.

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