Lawyers are from Mars, Social Scientists are from Venus*

* With apologies to John Gray, and everyone else too.

Thanks to Jason and Co. for allowing me to guest-blog this week. I want to wrap up by talking about a couple of the things I see as an impediment to the ELS enterprise, and specifically to scholarly collaboration between legal academics and social scientists.

Traditionally, the American legal academy -- reflecting its primary mission to train professional advocates -- has generally taken what I think of as an adversarial approach to inquiry: One has a position to be supported, or a result to be achieved, and one marshalls evidence and arguments in support of that position/result while minimizing, discrediting, or otherwise undermining evidence and arguments that oppose it. The opposition does the same thing, and the best arguments (usually) win.

This model -- which, I think it's fair to say, pervades the legal academy -- gives rise to a number of externalities: an emphasis on rhetoric and argumentation, a prioritizing of deductive over inductive and abductive modes of reasoning, and an innate skepticism about facts and data. But while it is a tremendously powerful, efficient mechanism for accomplishing all kinds of things, it is a lousy model for "doing science;" and, in fact, is fundamentally at odds with how scientists think about what they do. (As I noted in a comment to an earlier post, I noticed this most starkly during my two years at NSF, when law faculty would often submit grant proposals that said, effectively, "If you fund my research, I will prove that...").

On the other hand, the intellectual culture of the social sciences brings its own pernicious effects to the collaborative relationship as well. The worst of these is a form of scientism I believe stems from social scientists' relatively low position in the scientific food chain. For many, it takes only a few instances of hearing that one's field "isn't a real science" to become unreasonably defensive and prone to elevate method over all else. One consequence of this is social scientists' tendency to denigrate legal academics' values, including the importance they place on individual cases (versus broad trends), doctrine (versus outcomes), and the normative implications of legal decisions (versus positive explanations of the decisions themselves).

My own view is that the best remedy for these meta-problems begins in the classroom. Law schools that offer courses in (social) scientific thinking -- and social science departments that welcome law school faculty, cross-list courses, and so forth -- underscore the idea that we share common pedagogical goals (critical thinking, logical consistency, etc.) and that both approaches are equally -- albeit differently -- valuable. Moreover, they provide a natural point of contact between the two cultures, and in so doing open up possibilities for greater cross-disciplinary translation and collaboration.

Comments

[Geoff McGovern]

Chris, this is a great posting, capping off a week of thought provoking comments. Just a brief reaction before I start teaching on Monday morning:

The philosophy of science approach is rather useful in understanding the miscommunication between the disciplines. I particularly appreciate the anecdote about the law prof’s NSF grant proposal. Woe befalls the social scientists that deigns to utter the phrase, "I will prove to you...!"

While I think there is more to the story than a Popperian framework suggests (e.g., different institutional expectations, both industrially and academically; different training), both social scientists and legal academics would be well served by sampling the other's wares.

Which brings me to ask the following: as we see law curricula adopting more and more social science classes, will we see social science departments adding more doctrinal courses? Will Pound and Langdell work their way into political science departments as Campbell and Stanley, and KKV have into the legal academy? Or will law contribute something else entirely? If the doctrinal future is indeed bright, I’d like to hear some suggestions on how the crossover might take place.

[William Henderson]

Chris,

This was a really excellent post. And thanks for linking back to John Pfaff's April post (a "classic" from the early days of this blog), which included many thoughtful comments including your own. You also linked to Beth Mertz's initial NLR post, which discussed the possibility of a new wave of realism with greater emphasis and care placed on methods (I admit, this is my own spin since delineating "old" and "new" realism invites lots of debate.)

To my mind, these very thoughtful entries by guest bloggers provide a basis for articulating a more explicit theoretical framework. At some point in the near future, it might be worth attempting this formal exercise. I am not the most qualified to do this, but I might go first just to get the ball rolling.

On that note, Tracey provides yet another conceptual framework--diagnostic science-- for thinking about the goals of ELS. Tracey's example of micro-level experimentation and observation really resonates with me. I would like to think about the future of interdisciplinary legal work as "applied social science"; in other words, a diagnostic and prescriptive approach to law and policy (since law is the primary mechanism of social control) with the social sciences providing the methodological rigor and a norm of *scientific* skepticism.

But hopefully I will riff on this later.

Many thanks for an excellent guest blogging stint.

[Tracy Lightcap]

Let me suggest a gloss on this post. I would add one more kind of science: diagnostic science. What I mean by this is disciplines built around using scientific principles to treat with particular cases or situations. The master template here, of course, is medicine, but other fields - forestry, some forms of engineering, geology - devote very substantial amounts of energy to these questions. Usually, these sciences have experimental or quasi-experimental divisions that focus in on the particulars of the needs of the front line, but general abstract research is usually left to more esoteric lines of inquiry.

I think it would profit us to think of the relationship of legal and social science collaborations in this way. The differences Dr. Zorn refers to are very real and are unlikely to be bridged without a recognition of the diagnostic endeavor the law actually is. If both sides of the divide could see that they are at about the stage that medicine and, say, chemistry were in the 1860's (i.e. wary recognition that both sides have something to say to each other, but neither willing to change yet) we might make some progress. That'll be hard, but not impossible.