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04 October 2006

Comments

Geoff McGovern

Despite my penchant for the academic, we must admit that the major thrust of legal education is not to train future legal academics (cf., Solum's very articulate response to Frank Cross on Legal Theory Blog). So I am somewhat skeptical--though perennially hopeful--that law schools will jump to the social science framework before the legal profession wants the jump to happen. Until the top firms and judges start to put pressure, both financial and w/r/t hiring graduates with fantastic empirical skill, on schools, the rate of change towards social science will be slow. I’m interested in the likelihood that this pressurization will happen at lower ranked schools that are in greater competition for recruiters—assuming inelastic demand for graduates at the top institutions.

That said, perhaps the disconnect that can be addressed in our discussion of Interdisciplinary Ignorance v.2.0 is the as yet unspecified relevance of social science to the practicing lawyer.

Assuming that the training of lawyers is the main—if not the only—focus of legal education, how does the social scientific perspective add to a burgeoning lawyer’s professional development? I’ve posted on this blog about the potential for social science pedagogical dominance in the field of evidence. Just take a look at McKlesky v. Kemp and you’ll find proof that the Court needs remedial statistical help. The voting rights cases offer another fine demonstration.

Appellate advocacy also seems to me an area rife with benefits to the attitudinally savvy advocate. Repackaging arguments for ideologically motivated jurists—rather than insistence on a staid formalism—could produce some substantially better returns for clients. Ditto for CoA panels vis-à-vis en banc review.

Professor Rosenberg highlights the institutional structure that restricts social scientific approaches from gaining traction in the halls of laws. Physical distance is a factor—though I suspect a minor one. The concomitant psychological distance likely plays a greater role. Law reviews as outlets for legal scholarship are enormously important in my opinion, and until the tenure committees begin looking to peer reviewed journals as the benchmark for scholarly worth, the demand for social scholarship approaches will be retarded.

But I’m advocating a social science from the trenches perspective as the pitch that might get disillusioned legal academics (and law school administrators) to buy the scholarship we are selling.

Michael Heise

As usual, Gerry raises awfully good points, as does Frank in his earlier post. Although much warrants discussion, I'll dwell only on Gerry's conclusion (of pessimism) and take a brief stab at arguing the opposite (optimism). Before I do so, however, I'll stipulate to the proposition that changes to the legal academy's "institutional structure" and the "culture of scholarly inquiry" are difficult to operationalize and measure, to say the least.

The scholarly climate in law schools (or, more accurately, in some law schools) is changing and institutional structural shifts--even if just subtle ones--express these changes. Peer-reviewed publications (and university press books) are increasingly common and important for P&T purposes; multi-disciplinary training and interaction are desired and not merely tolerated; the number of joint appointments (despite frequent logistic complexities) continues to rise. Have any of these changes reached a critical mass--however defined--in law schools? Certainly not. That said, the direction of the changes and its consistency are important and inform predictions about the future. Moreover, when the desired change involves institutional structure and scholarly culture, small, incremental steps and progress should be expected. Finally, the factors driving these changes are interactive.

Again, I do not challenge the validity of Gerry's pessimistic conclusion. Ample evidence supports it. My smaller point (and, alas, perhaps it's a naive one) is that I find enough counter-evidence of change to plausibly support optimism. While the law and political science intersection is nowhere near grid-lock (rush-hour, Chicago style), the traffic flow likely supports the installation of a sign or traffic signal.

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