Continuing in my role as curmudgeon (self-appointed), I’m not persuaded that Frank’s citation counts are good evidence that social science work has become part of legal scholarship. Frank assumes that when legal academics cite a work, they have read it. In my experience this is not always the case. I have seen numerous draft papers by legal academics in which a claim is made in the text with a footnote appended which says something like, “find a source.” Often, that command is to a research assistant. I don’t know Political Scientists who cite material they haven’t read. I fear it happens all too often with legal academics. Perhaps this is nothing more than a style difference, although it was not the way I was trained to do social science research. But like the honorary street signs that one finds on certain city blocks (“Frank Cross Optimist’s Way”), I’m not sure citation counts signify very much.
Lawrence Solum’s linked post points out that “Interdisciplinary ignorance is a two way street.” He notes that social scientists are often woefully inadequate at analyzing cases or statutes. I agree but I don’t think both lanes of Solum’s street are of equal size. That is, more inadequate legal work dealing with social science is published than inadequate social science dealing with law. This is largely because so much legal scholarship is published in the numerous law reviews which are edited by law students and lack peer review. This is a prominent example of the insulated nature of the legal academy that I noted in my earlier post. And it is unlikely to change until the structure of law reviews changes.
Solum’s next argument is to require interdisciplinary legal scholars to do 6 impossible things before breakfast. He says that in addition to, 1) legal training, the "complete legal academic" will, 2) understand the structure and assumptions of normative legal arguments, 3) understand the basic concepts of contemporary law and economics (including basic microeconomics), 4) master empirical legal methods, 5) have a solid grounding in quantitative and formal methods, and 6) master important ideas from sociology, psychology, anthropology, and history. Unsurprisingly, he then notes that no disciplinary Ph.D. program trains students in this combination of skills. Since Solum notes that no SJD program is “even heading in this direction,” he concludes that the legal academy continues to "reinforce interdisciplinary ignorance. As a profession, we are failing badly in the training of future legal academics.”
I’m not sure I’ve ever met Solum’s "complete legal academic." Indeed I’m not sure such a person exists. I have met legal academics who are quite sure they meet the criteria. My impression is that their knowledge is a mile wide and an inch deep. That kind of foundation is incapable of supporting much academic weight. I think a more plausible goal is to train competent legal scholars who have mastered some methodological tools and a social science discipline. Another possible approach is a Ph.D. in law and society. The long-running program in Jurisprudence and Social Policy at Berkeley has been joined by a program at NYU. Perhaps programs along these lines can address some of the inadequacies Solum, Cross and I find.
Finally, I think this discussion raises the issue of what exactly law schools teach. It’s not clear to me at all that the standard three-year law school curriculum either prepares students to do the kind of legal work most lawyers do in the U.S., or provides them with a solid post-graduate liberal education. Law school curriculums strike me as equipping students with 19th century common-law tools in a twenty-first century administrative state. And while this is perhaps a topic for another forum, if this is right it should be no surprise that legal scholarship has yet to be fully infused with modern social science.