Empirical Legal Studies

A CELS Recap

With the First Annual Conference of Empirical Legal Studies completed, I thought I'd share some thoughts and reactions.  First, the University of Texas School of Law put on a wonderful event.  I look forward to the 2007 event at NYU School of Law.

The papers presented on the whole were very good, likely a result of the competitive paper submission process,--(I was the discussant for an excellent paper entitled "How are Patent Cases Resolved"  presented by Jay Kesan (Illinois))--and presenters were kept to strict time limits using a buzzing timer that kept panels moving efficiently and left time for questions.   The panel format was paper presentation/discussant, paper presentation/discussant, etc.  I found the panels with fewer scholars in the audience and in smaller rooms to be better as they acted as more of a roundtable workshop about every paper, though on the whole the experience was far better than say AALS or MPSA since attendees actually read the papers being presented and thus had very good comments and questions.

The biggest change that I would make to the conference would be to add more time for discourse and socialization.  The panels led to a number of quality suggestions for individual papers.  But since there were so many good panels held one after another and speakers/posters at dinner, all held over 1.5 days, there was less time than desired to pick the brains of attendees who had good suggestions to improve the works-in-progress.  Adding more time for informal discussion could be done by having break-out sessions for each individual paper following each panel, changing the panel format, increasing the time between panels, or making the conference longer--though I'm sure there are many possibilities.

It also became clear at the conference that every discipline (statistics, law, political science, sociology, business, etc.) has different areas of concern, interest, and expertise for each research project.  Thus, I would hope that these Conferences on ELS will promote co-authored papers that can rely on the expertise of a variety of disciplines. 

Finally, in a number of panels there was debate over the details of the methodological/statistical techniques employed.  For example, when Bill Ford and I presented our paper on dissensus on the courts of appeals, there was discussion of when it is appropriate to use lagged dependent variables in cross-sectional times series analysis.   Thus, perhaps some panels might be organized based on methodological techniques employed (e.g., time-series) rather than substantive areas.

Back in Print - Frankfurter & Landis

The Business of the Supreme Court: A Study in the Federal Judicial System

by Felix Frankfurter and James M. Landis (Transaction 2006 [1928])

Availability: Amazon / Transaction / B&N

First published in 1928, it's back in print.  It's available now directly from Transaction, but Amazon and B&N should not be far behind.
 

We are all in Austin ...

Bernie Black et al. have done a terrific job pulling together the First Annual Conference on Empirical Legal Studies.   Everything has run like clockwork--and the buzzing timer in each session has certainly helped on that score.  Overall, the bar has been set very high for future events. 

All the ELS Blog contributors are in Austin, so we might be able to pull off a group picture sometime tomorrow. 

Qualitative for its Own Sake

In response to my first entry about her work, Catherine (KT) Albiston said to me, “don't be too quick to frame qualitative research as just a precursor to, or adjunct of, quantitative research. Some questions you can't ask quantitatively, particularly questions about process or meaning as those tend to be assumed a priori by the way in which quantitative questions are framed (and what researchers do and do not ask).”  She goes on to remind me how this is true in my very own work (and hers).  Beth Mertz says something similar in her reply to Fleury-Steiner’s work. 

They are, of course right.  I did not mean to imply qualitative is useful ONLY when it is a precursor to or situated within a qualitative framework (though it is my preferred method for the reasons I elaborated yesterday about a sample situated within a larger random sample).  Here is an example of a way that qualitative research captures a mechanism that just would not have been uncovered in a quantitative research design. 

                My book, License to Harass:  Law, Hierarchy and Offensive Public Speech (Princeton, 2004) shows a very high level of agreement that offensive speech should not be legally regulated.  Strong support for free speech cuts across social groups even regarding very offensive street speech (racist, sexually harassing, aggressive begging, homophobic).  So my attitudinal measures tell a pretty compelling story about support for this important constitutional principle, right?  Not quite. 

There is not unanimity across social groups as to why people disfavor the legal regulation of offensive public speech.  White men are more likely to disfavor legal intervention because of traditional first amendment values.  African-American men disfavor legal regulation due to a distrust of authority and cynicism about law generally.  Among my respondents, women were far more likely than men to argue that offensive public speech should not be legally regulated because to do so would present them as victims and further undermine their social status or because it is “impractical.”

The fact that subjects are not randomly distributed across these reasons for opposing the legal regulation of offensive public speech suggests that social experience plays an important role in shaping people’s attitudes on this topic specifically and perhaps on legal consciousness more generally.  The surface consensus opposing the regulation of speech obfuscates underlying differences that tell an important story about the role of law in ordinary people’s lives.

Until I began the analysis of the qualitative data, I could never have possibly guessed these reasons for opposing the legal regulation of offensive public speech.  These mechanisms that produce the ultimate attitude (against regulation of speech) could only be uncovered through qualitative research. 

Just like with quantitative analysis, the patterns in the data began to emerge as I began analyzing my data. More resources – I use qualitative data analysis software to do this.  It helps you gain perspective on the prevalence of themes, where they appear in the interview, and how they build on one another.  I personally like NVivo, but others like Atlas Ti or hyperresearch.

Researcher Incentives and Empirical Methods

As I head down to Austin for the First Annual Conference on Empirical Legal Studies, my travel reading includes this recently posted NBER working paper by Harvard economist Edward Glaeser:  "Researcher Incentives and Empirical Methods. "  Here is the abstract.

Economists are quick to assume opportunistic behavior in almost every walk of life other than our own. Our empirical methods are based on assumptions of human behavior that would not pass muster in any of our models. The solution to this problem is not to expect a mass renunciation of data mining, selective data cleaning or opportunistic methodology selection, but rather to follow Leamer's lead in designing and using techniques that anticipate the behavior of optimizing researchers. In this essay, I make ten points about a more economic approach to empirical methods and suggest paths for methodological progress.

The full article can be downloaded here.  Hat tip to D. Daniel Sokol, Hastie Fellow at Wisconsin Law (and my former Chicago classmate) for alerting me to this article.

Impact of Joinder and Severance on Federal Criminal Cases

A recent piece by Andy Leipold (Illinois, Law) and Hossein Abbasi (Illinois, Ph.D. cand., econ.) will certainly interest many criminal law folks.  Their paper, at 59:2 Vanderbilt Law Review 349-404 (2006) (or here), empirically tests two widely held assumptions.  First, that criminal defendants facing multiple charges in a single trial are worse off than defendants facing several trials of one count each.  Second, that a defendant joined at trial with co-defendants is worse off than a defendant standing trial alone.

What they find is that, "defendants who face multiple counts are roughly 10% more likely to be convicted of the most serious charge than a defendant who stands trial on a single count."  Also, that "joining co-defendants in a single trial had virtually no impact on the likelihood of conviction."

Law and Ordinary Citizens

          Continuing on my theme of “qualitative is empirical too” I want to highlight an important study about law and ordinary citizens – in this case when they are called on to be jurors in capital cases. 

          Ben Fleury-Steiner’s, Jurors’ Stories of Death comes out of the famous Capital Jury Project led by William Bowers.  We have known since the famous Baldus study that there is racial bias in the imposition in the death penalty in the United States. 

          The CJP is an ambitious qualitative and quantitative study which analyzes jurors decision making at every phase of the capital sentencing project.  In 14 states, the CJP chose 20 – 30 capital trials, selected 4 jurors from each jury and conducted extensive interviews with these 1,201 capital jurors from 354 trials.  The quantitative findings are really interesting -- one example I particularly like demonstrates jurors’ systematic misunderstanding of what will happen to the defendants if they are not executed.  But how do we explain the racial bias?

         Ben Fleury-Steiner does it excellently with qualitative research.  Based on the larger and systematically drawn sample, Fleury-Steiner’s qualitative interviews are drawn from a rigorously-drawn sample (one of the ways to evaluate qualitative research is on the quality of the sample – his is excellent because it is across state, the trials were randomly selected within the period, and he talked to multiple people of different races from the SAME juries to hear what happened in the jury room).  The shocking thing is how honestly jurors spoke of the role of race in determining death sentences.  Consider just 2 representative quotes from one of Fleury-Steiner's article:

Qualitative is Empirical Too! Law and Organizations

     Before you click back over to the New York Times or whatever you were reading before you got here, let me give you four good reasons to be interested in qualitative research in ELS.

    

     Of course, we can debate any of these that you like, but here is what I think:  (1)  Qualitative research is the kind of theory-generating research that much quantitative research is testing; (2) Many questions about law and its influence in society can only be answered in the first instance using qualitative methods.  Of course, you can operationalize them in such a way as to later test them quantitatively, but the initial understanding of various processes (I will give you examples all week) of how law works come from (a) theory or (b) qualitative research; (3) Qualitative research, when placed alongside quantitative research can teach us much more about the phenomena we study than the quantitative research alone; (4) Lot of work in law reviews right now is masquerading as “empirical qualitative research” but there is something in your gut that tells you there are problems with it.  You are probably right.  There is a science of qualitative research and there are standards by which we can evaluate qualitative research meaningfully.  More on that later in the week.

    

     This week, I hope we can talk/write about what makes it more or less convincing, how we evaluate the methods, and what we can learn from qualitative work that, although we may be able to quantitatively test it later, could not have been observed without the qualitative research in the first instance. Before I say too much more about the mechanics of qualitative research, I better give you some examples or you will totally lose interest.

One of the most important questions that I think we are almost all interested in (or why would we do this work) is something like, “what impact does law (broadly conceived -- could be statutory, judicial, constitutional or regulatory) have when it intervenes to affect social circumstances in whatever milieu we study?" 

    

     Today, I am going to highlight 2 excellent qualitative studies in the organizational context.  Law often is used in an attempt to affect individuals’ behavior in organizations.  We want executives to oversee accounting practices so that we don’t have another Enron; we want to provide incentives to individuals in organizations to refrain from discrimination; we want the police to follow certain procedures to ensure the constitutional rights of the accused; and you can name many more.     

Guest Blogger: Laura Beth Nielsen

This week's guest blogger is Laura Beth Nielsen, who currently holds a joint appointment at the American Bar Foundation and Northwestern Sociology.  Laura Beth's primary research field is the sociology of law, with particular interests in legal consciousness and the relationship between law and inequalities of race, gender, and class.  Laura Beth's recently published book, License to Harass: Law, Hierarchy, and Offensive Public Speech  (Princeton 2004) (winner of the 2000 LSA dissertation prize) uses qualitative empirical methods to examine hate speech, targets ' reactions and responses to it, and their attitudes about using law to deal with such speech.   In addition, her numerous articles, book chapters, and edited volumes have made important contributions to our understanding of employment law and the perceived versus actual autonomy of in-house legal counsel. 

Laura Beth is trained as both a lawyer and a social scientist.  She is received her Ph.D. from UC Berkeley ' s Jurisprudence and Social Policy Program (1999) and her J.D. from Boalt Hall School of Law.   During the 2005-06 academic term, Laura Beth was a Research Fellow at the Center for Advanced Study in the Behavior Sciences at Stanford University.  As a person who is fully integrated into both the legal and social science academies, Laura Beth is well situated to comment on the current and future state of the empirical legal studies movement.   We look forward to her postings over the coming week. 

"Negative" Results & the Journal of Spurious Correlations

One of my favorite quirky blog spots--the Journal of Spurious Correlations--links to a recent WSJ piece on the increasing scholarly popularity of "negative findings."  (For anyone with a few minutes to kill over the weekend, it's reprinted here.)

For those interested, the self-styled mission of The Journal of Spurious Correlations (JSpurC) is to "provide a legitimate venue for exploring pure and applied methodological questions in the social sciences in the company of colleagues without fear of professional embarrassment or reprisal.  While a number of the present organizers are political scientists, such an initiative may be relevant to other social science disciplines as well, and to a range of methodological approaches beyond the ‘quantitative.’"

Charles Kelso on the First Law School Rankings (1975)

Yesterday, I had a terrific conversation with Charles Kelso, professor at McGeorge, former head of the ABA Section on Legal Education and Bar Admissions, and former editor of Learning & the Law.  As noted in my earlier post, The First Ranking of All U.S. Law Schools, in 1975 Professor Kelso assembled the Resource Index, which was widely perceived to be a rating of all U.S. law schools.  Professor Kelso has kindly written the following postscript, which adds some additional details to this story:

I would like to thank Professor William Henderson for the accurate and thorough replay in his October 13, 2006 memorandum of the debate that occurred in Learning & the Law during 1975 with regard to using an index of resources to rank law schools.  However, two minor corrections should be made.  First, I am not emeritus.  I continue to teach a full load and hope to continue for some years.  Second, the story on the Resource Index actually began back in 1972 with publication of the AALS Study of Part-Time Legal Education. 

The second point warrants some elaboration.  As Director of the Part-Time Study, I visited some 120 law schools and there attended classes and interviewed deans, faculty members, and students.  I gradually concluded that the differences I observed in full-time day and part-time evening programs were more associated with the resource level of the school than with the time at which a program was offered.  In order to support that conclusion with something more than my research notes, I decided to buttress my observations through social science research methodology–i.e., the more relevant items you can accumulate with respect to an ultimate characterization, the more reliable that characterization.  At it turned out, the  Resource Index I constructed from published information about the law schools did rank law schools in ways that tended to support my observational conclusions.

I don’t know the extent to which publication of the Study affected thinking about part-time legal education.  However, the Study had been initiated in 1963 by AALS President Walter Gellhorn in response to a proposal that the AALS disinvite law schools with an evening program.  Since the Study’s publication in 1972, I have not been aware that any such proposals continue to be advanced in the AALS.   So perhaps the Study had some influence.

Of course, my purpose with respect to the Resources Index was limited as I have described, and I had no idea in1972 of the ultimate use of the methodology.   Perhaps I should have recognized a harbinger when in 1978 there was published Barron’s Guide to the Law Schools.  It contained an index designed to be relevant to the selection of law schools by applicants, and Barron’s credited the methodology to me.  [Here is the 1978 Barron's Index, culled from the Indiana Law Library. wdh.] I am not aware that U.S. News has indicated the source of its methodology.

Even though some law schools may today be spending too many resources on distributing favorably publicity or in other ways basing decisions at least in part on index factors rather than purely educational reasoning, I continue to think that it is not necessarily a bad thing for law schools to favor an increase in resources dedicated to improving legal education in both day programs and in evening or other part-time programs which preserve opportunities for capable students that are otherwise unavailable.

Charles D. Kelso
Professor of Law
University of the Pacific McGeorge School of Law
October 18, 2006

New Edition - The Supreme Court Data Book

Supreme Court Compendium: Data, Decisions, And Developments (4th edition)

by Jeffrey A.  Segal, Harold J.  Spaeth, Lee Epstein, and Thomas G. Walker (Congressional Quarterly Press 2006)

Availability: Amazon (soon) / CQ Press (now)

From the Description: "The Supreme Court Compendium is the only reference that presents historical and statistical information on every important aspect of the U.S. Supreme Court, including its history, development as an institution, the justices’ backgrounds, nominations, and confirmations, and the Court’s relationship with the public and other governmental and judicial bodies. The newest edition of this comprehensive reference includes important new perspective on the legacy of the Rehnquist court.... This new edition includes more than 180 tables and charts and is updated to cover Supreme Court events through the 2005-2006 term. This reference is an invaluable resource to judicial scholars, students, and those interested in the history of the Supreme Court."

New Book - Samples on Campaign Finance

The Fallacy of Campaign Finance Reform

by John Samples (University of Chicago Press 2006)

Availability: Amazon / B&N / U. of C. Press

From the Description: "At first glance, campaign finance reform looks like a good idea. McCain-Feingold, for instance, regulates campaigns by prohibiting national political parties from accepting soft money contributions from corporations, labor unions, and wealthy individuals. But are such measures, or any of the numerous and similarly restrictive proposals that have circulated through Washington in recent years, really good for our democracy? John Samples says no ...."

Forecasting the 2006 Elections for the United States Senate

See here.

Law Blogs & the "Juice"

Not at all quite sure what to make of it, but Paul Caron touts a law blog "juice rating" here.  I note it only because our ELS blog made the list (at 26th).  Our ranking (such as it is) is all the more notable in that we're a relatively new blog, dwell on the substantive (save for this post), and focus on the discrete--though palpably growing--empirical legal studies field.

The First Ranking of All US Law Schools--1975?

The following is story of what I believe to be the first ranking of all U.S. Law Schools.  (If I am mistaken, please email me additional facts and I will post them.)  As a service to the law school community, I have scanned and linked to the relevant articles.  Otherwise, they would be hidden away in the stacks of most law school libraries.  I hope readers find this account interesting and enjoyable.

The story begins with a magazine.  In the early 1970s, the ABA Section on Legal Education and Admission to the Bar attempted to elicit a dialogue between the legal academy and practitioners by starting a periodical called Learning & the Law.  Its editor was a law professor named Charles Kelso (now emeritus at McGeorge), a person of prodigious energy who served on numerous ABA inspection teams during the 1960s and '70s.  Before ending its publication, Learning & the Law put out four terrific, interesting volumes (1974-77) that tapped many of the nation's leading academics and law school deans to write about of issues affecting law, society, pedagogy, legal education and the practicing bar.   

In the summer 1975 , Charles Kelso drew upon data collected by the ABA to publish a rating of law school resources--e.g., faculty size, student/faculty ratio, volumes in library, etc.  See Adding Up The Law Schools: A Tabulation and Rating of their Resources.  The idea for the Resource Index emanated from Kelso's observation that schools with part-time programs tended to have fewer resources per capita and, in general, focused on training competent practitioners rather producing scholarship, championing social causes, or providing an advanced liberal education.    The compilation of such a list,  reasoned Kelso, could help ABA inspection teams evaluate resources vis-a-vis law schools' stated social and educational missions.

The first paragraph of the article explicitly stated,  "[This list] is not a quality rating of law schools" (emphasis in original).   But  it didn't matter.  The article listed all U.S. law schools in descending order of resources.  Further,  each school was placed in one of seven groups (you know, like law school tiers) and assigned a resource grade of A, B, or C.  Groups 1 and 2 were designated an "A";  Groups 3, 4, and 5 were given a "B"; and Groups  6 and 7 were given an "C".  Kelso also noted that a recent listing of top law schools [based on survey data from law school deans from Change magazine, Winter 1974-75] closely tracked the top of the Resource Index.

In the weeks that followed, Learning & the Law was besieged with letters, many from law school deans, complaining about the inaccuracies of Kelso's methodology.  The Fall 1975 issue published several critical letters and a comprehensive defense by Kelso.  See In Defense of the Mathematics of Law School Evaluation.   For a summary of that provocative exchange, you'll have to read past the jump.   

Positive Approaches to Constitutional Law and Theory

The University of Pennsylvania Journal of Constitutional Law announces its 2007 Symposium:

On February 23 and 24, 2007, the Journal will host its Tenth Annual Symposium, “Positive Approaches to Constitutional Law and Theory,” at the National Constitution Center and University of Pennsylvania Law School. The Symposium will look past traditional methodological debates to examine the specific contribution that positive theory can make to constitutional doctrine. Topics covered will include agenda setting by the Supreme Court and the lower federal courts, the influence of public opinion on constitutional law, external and internal institutional constraints that influence Supreme Court decision-making, and use of positive theory to analyze specific doctrinal areas.

Please contact Jennifer Kates at [email protected] or 267.303.1379 for further information. The Symposium webpage is found at http://www.law.upenn.edu/journals/conlaw/symposium/index.html.

Abstract - Traffic Tickets & Local Government Budgets

Thomas Garrett (Federal Reserve Bank of St. Louis) and Gary Wagner (University of Arkansas) ask, "Are Traffic Tickets Countercyclical?" Here is the abstract:

There is anecdotal evidence that local governments use traffic tickets to generate revenue. Using panel data for North Carolina counties, we examine whether changes in local government revenue influence the number of traffic tickets issued. We find strong evidence of an asymmetric response by local governments. Specifically, positive changes in revenue have no effect on traffic tickets, but negative revenue changes increase the number of traffic tickets issued. A one percentage point decrease in revenue yields a 0.38 percentage point increase in traffic tickets. We calculate that traffic ticket revenue supplements a low percentage of local revenue losses.

The full paper is available here on SSRN. (H/T theNewspaper.com).

The Northwestern Colloquy

The Northwestern University Law Review has an innovative new project, a blog run by a law review. Here is the description:

The Northwestern Colloquy will be the first scholarly weblog to be operated by a major law review. It will feature legal commentary written in the form of blog posts. This new format will allow scholars to publish their thoughts within days of an emerging legal development. The subject matter can be anything within the field of legal inquiry, whether a short exposition of a new idea, an analysis of an emerging legal topic, an ongoing debate regarding a legal issue, or a short response to an already published piece of scholarship. Readers can rely upon the Law Review to ensure that citations in these pieces support the assertions made in the posts. We will also be allowing comments on these pieces in a moderated forum. We hope that this new feature will serve as both an attractive new way in which to publish ideas and as a meeting place for far-flung scholars to interact and refine their work.

A couple of questions: Is checking citations a useful service for blog posts? Can a blog thrive when its subject matter is as unpredictable as a general law review, e.g., bankruptcy one day, copyright the next? We'll find out. It launches on November 1st. There is more information here.

(Hat tip to Larry Solum.)

The Federalist Society and Epistemic Communities

The Federalist Society as whole is made up of groups of conservatives who have a variety of ideas about law and public policy. Over time, members of the Federalist Society have advanced along impressive career tracks, including playing prominent roles in presidential administrations, becoming judges, and working in a variety of other settings. The Society itself looks as though it was a means of organizing and networking to many observers. But what do we call this activity as social scientists? How can we study it and understand not only the impacts it has on the legal profession, but also in shaping public policy and law?

Within studies of the legal profession, particularly in sociology, there is a long tradition of connecting the legal profession to state structures. The work of Terence Halliday and Lucien Karpik and their collaborators, argues, for example, that the rise of political liberalism was shaped by the responses of legal professionals to changes in state and society in a variety of contexts. Ronen Shamir taught us that the lawyers during the New Deal worked diligently to “manage legal uncertainty”, while also providing us with a remarkable understanding of why the administrative state came to be as it did in that period of U.S. history. In some ways, an analysis of the Federalist Society fits nicely with this literature. Certainly, lawyers have a long history of working to change legal culture and legal structures in reaction to economic and social changes. It seems, in fact, to be one of the mechanisms by which professions in general restructure themselves and survive through decades, or even centuries. One way we might understand the Federalist Society, then, is as a recent manifestation of this age-old practice.

And yet… The legal profession is vast, and the ability of one group to restructure it in a fundamental way – such as the way the bar associations of the past restructured the legal profession and introduced the bar exam and various other requirements to the process of becoming a lawyer – seems questionable. And, depending upon how we want to understand the notion of this particular “group” – as say, limited only to the core, i.e., the board of directors, and the members who are consistently active with the organization – the ability of the Federalist Society to shape the debate is quite remarkable. The framework that might help us understand what the Federalist Society IS needs to account for the social networking that the organization fosters, the ability of those networks to place individuals into key positions, the importance of debate and ideas – all the while keeping an eye on the way ideas move from the networks into public policy and the law.

To quote political scientist John Ruggie, writing in a much different area of research, “what makes this world hang together?”

Law & Society Annual Meeting, Berlin July 25-28

The Law & Society Association has released its call for participation in its annual meeting.  Every five years, this event is held outside the U.S.   This year, the meeting will convene at Humboldt University in Berlin, Germany from July Wednesday, July 25 to Saturday, July 28.  The Research Committee on Sociology of Law (International Sociological Association) is co-sponsoring the meeting.  The call for participation runs until January 12, 2007.  (Full details).

Similar to last year, I plan to organize several panels on law firms and the legal profession.  A list of last year's panels (which included many empirical papers) can be found here.    If you would like to be included on the mailing list for organizing these law firms / legal professions panels, which currently has 105 researchers from a variety of disciplines, please send me an email.

UPDATE: Valerie Hans (Cornell Law), one of several empirical scholars of law on the Program Committee for the Berlin meeting, provides more information about the meeting that will be especially interesting to ELS folks:

The meeting promises to be a very exciting one for people who are interested in empirical approaches to law and legal systems and want to explore the international and global possibilities of their work. Six sociolegal associations are cosponsors of this conference, representing a remarkable amount of international cooperation. I have taken up the task of organizing several "Presidential Panels" to highlight empirical research on law; the aim is to include people from diverse countries who are working on the same or similar topics. There will be special graduate student activities too, to facilitate the development of international connections among the next group of sociolegal scholars.

If you are interested in presenting your work, want to suggest a panel or a scholar from the U.S. or another country, or just want to learn more about the meeting, please feel free to email me [Valerie Hans] or others on the Program Committee. See you in Berlin!

Interest Group? Eh… Maybe

Geoff McGovern’s comment on my last post brings to mind a conversation I had a few years ago in graduate school. As part of my dissertation work, I attended two of the law student annual meetings of the Federalist Society.  I was impressed with the level of networking happening right before my eyes. I was also impressed with the level of debate that went on and how obvious ideological divisions became visible among the various panelists (and even more so when talking with the students who attended the functions). My primary interest at the time was how conservative libertarians were framing property rights issues in legal arguments. Upon returning from the first of those meetings, one that was held at Harvard, I met with my dissertation advisor to discuss what I had seen and to go over my notes of some of the presentations. At some point, he said something about the way interest groups frame discussions, and I paused in puzzlement. “Well,” said I, “I don’t think it’s an interest group.” My advisor tilted his head, gave me a very direct look, and said, “Are you sure?” This was his way of asking indirectly whether I’d checked the literature on this matter – I had not, but comprehensive exams weren’t far away and I felt reasonably certain that what I was seeing in my research was not an organization that fit that particular literature. It seemed somehow a hybrid of sorts. 

 Now, nearly six years later, I’m still not sure, but I think my initial assessment was probably a reaction to the focus of the interest group literature on the way groups pressure governmental processes. There are characteristics of the Federalist Society that make it a political group (not least of all its advocacy of a particular set of ideologies – all of which are nowadays labeled “conservative”), but what intrigues me is that this group does not fit that literature as it developed – by and large with an eye to understanding how interest groups shape policy in Congress and the Executive branch.

 Interest group literature tends to focus on those groups that attempt to shape government policy through pressure on particular governmental institutions and agencies. The notion of interest groups themselves tends to be shaped by the scholars attentiveness to the arena in which the group is active. Lobbying, the endorsement of particular political candidates, involvement in administrative hearings through various mechanisms, are clearly part of this activity. And for those interested in courts and judicial politics, filing as amici, case sponsorship, and activity in the judicial selection process (mostly in the form of lobbying but also providing expert testimony concerning the backgrounds of various judicial nominees) are all within the domain the practices of the interest groups we study. Individuals who may be current or past Federalist Society members are involved with lobbying or other interest group/pressure group activity at any given time, on behalf of other organizations. But the Society itself, as Geoff points out, does few of those things political scientists generally look for in interest group studies.

What IS the Federalist Society?

Over the course of the last decade or so, commentators both in the press and in academic settings have noted the prominent role the Federalist Society seems to play in various arenas, including judicial selection, the placement of law students in clerkships, and as a meeting and training ground for a large group of public interest and corporate lawyers. Yet, political scientists (and I think sociologists as well) have had a difficult time “getting their fingers around” the Federalist Society.   How do we understand its influence?  How should we, as social scientists, account for it in our research?

 At the 2006 Law and Society meeting, we had quite a lively discussion about this. Some in the audience believed that the Federalist Society is best understood as a coalition-building organization. Indeed, I see the argument here – there is much coalition-building occurring through its meetings and various events. And yet I’m not really certain that this answers the initial question adequately… Others in the audience suggested that it was best understood as an agenda-setter. Again, yes, there’s a point here – but… As John Heinz, Alan Paik and Ann Southworth have demonstrated in a paper that is currently posted at the SSRC website, there are many different kinds of conservatives who are active with the organization. And, not all conservative views seem to be fully represented at the meetings – it seems, at least as one sits in the audience or reads through the various programs over the years, that the Christian Right lawyers, while attending and speaking, are a smaller cohort in the meetings than, say, some of the libertarian lawyers.

 In other words, it seems a fairly loose coalition. And, as for agenda-setting… Certainly there are ways in which the ideas that are presented and discussed at the meetings make their way out into the world and even become policy. But – and I think it may be a big BUT – this seems to break down when you recognize that there are diverse views (and not all conservative and libertarian) presented, discussed and advocated in Federalist Society programs. These other ideas that seem very alive when you’re at the meetings, mini-conferences, or reading the documents the organization produces that aren’t adopted as public policy… So what IS the Federalist Society? What does it actually DO politically?

 It seems to me that the principle problem is a conceptual one – at the moment, our current concepts (interest group, social network, association, coalition) do not adequately describe the Federalist Society. The question I raise, then, is a social science one: what IS the Federalist Society? Is it an interest group, as some want to treat it? Is it a coalition builder? Is it setting political and judicial agendas? Is it a social network (or, more likely I think, a place where a group of social networks coalesce)? Or, as its webpage states, a debating society (in which case, how do we operationalize THAT)?

 In other words: what IS this influential coalition-building agenda-setting conservative and libertarian debating society? And how can we understand it as social scientists so that we can account for its influence on our institutions and society or its impact on law, legal practice and the judiciary?

 When Bill Henderson first suggested I blog on this topic, I was a bit nervous – after all, this project is still new and still needing a great deal of work. But then (as he persuasively argued), this would provide me with an opportunity to discuss the conceptual problem I think exists here and gain some input from interested colleagues as I put together grant proposals. So I welcome this discussion as the week progresses and am very excited to discuss it at length with all of you.

 

Guest Blogger: Laura Hatcher

The ELS Blog is pleased to welcome Laura Hatcher as this week's guest blogger.  Laura is Assistant Professor of Political Science at Southern Illinois University.  She received her Ph.D. in 2002 from University of Massachusetts--Amherst and thereafter served as a postgraduate fellow in Law and Public Policy at Brown University and as Visiting Professor at Wisconsin.   Laura's dissertation was entitled, "Conservative Cause Advocacy: The Multiple Sites of Conservative Legal Ideology."  Her subsequent research and publications continue to explore the relationship between ideology and conservative cause lawyering. 

Laura got my attention at the 2006 Law & Society Annual Meeting when she presented her provocative work-in-progress, "What IS the Federalist Society? Legal Expertise and Ideological Production in the Legal Profession."  Apparently, existing typologies for interest groups do not adequately explain the rapid growth and activities of the Federalist Society.  And as many law students and law professor know, the Federalist Society plays an important, but often opaque, role in allocating many prestigious federal clerkship.  In turn, these clerkships open doors into coveted positions in government, law firms, academia, think tanks and business.  To unravel this definitional problem, Laura has set up a research design that includes interviews and observational fieldwork.   I look forward to reading about this project and others during the coming week. 

Project Posner

Tim Wu, a former Posner clerk now teaching at Columbia, and Stuart Sierra, a Columbia Law web designer, have just announced the “grand opening” of Project Posner, a website with the stated purpose of making Judge Posner’s opinions more widely available. It contains his opinions from 1981 to 2006, minus the most recent ones. The opinions are searchable.

At the moment, Project Posner does not have audio files of oral arguments, which is too bad since Judge Posner is very active during them. The Seventh Circuit does a good job of making oral argument files available on its own website,* but it would be helpful to have all of Posner’s cases organized together and all of the files in the same format.

*Last I checked, the Ninth Circuit is the only other circuit that posts audio files of oral arguments on the web.

UPDATE: The Federal Circuit now posts oral arguments on its website too.

Great Moments in the History of Ignorance & Division IV

Again moving forward through time, today’s fourth and final Great Moment comes from the 1960s, a bit of doom and gloom about the state of public law and legal education. Admittedly, it’s not all bad in this period. In the mid-1960s the Harvard Law Review published a symposium with contributions from five political scientists and a response from Lon Fuller. See Joel B. Grossman et al., A Symposium: Social Science Approaches to the Judicial Process, 79 Harv. L. Rev. 1551-1628 (1965-1966). But this effort at bridge-building seems overshadowed by the extent of the divide between students of judicial behavior and students of legal doctrine. Glendon Schubert elaborates in a thorough discussion of the development and decline of public law as a field. He even offers a few suggestions for making public law in law schools “less ghastly.” Glendon Schubert, The Future of Public Law, 34 Geo. Wash. L. Rev. 593, 614 (1965-1966).

Schubert, whom Jeffrey Segal describes as the “founder of the attitudinal model,” provides many gems in this article. See Jeffrey A. Segal, Glendon Schubert: The Judicial Mind, in The Pioneers of Judicial Behavior 78, 78 (Nancy Maveety ed. 2003). Here are three:

To be perfectly blunt, legal research remains today at the primitive level of development, as a science, that generally characterized political science one or two generations ago. By and large, legal method is no more in phase with modern science than it was in the days of Austin, or (better) Aquinas, or (best) Aristotle, all of the talk about “legal science” and computerized methods of retrieving legal data to the contrary notwithstanding.

Schubert, supra, at 600.

The Future

Well, Gerry's post reminds me a little of how legal academics have dismissed the political science literature.  By dismissing empirical findings based on anecdotal stories (lawprofs not reading things they cite).  Especially since the non-reading should be constant over time, so that relative comparisons over time (or between polisci and legal sources) would not be biased by this.  But I would concede the overarching point that the improvement is incomplete and also that a citation does not necessarily imply real comprehension.

The more important question is how to continue to advance the ball.  Here's one possibility.  Bernie Black wants to add a political science series to SSRN.  He wants to do all political science, not just the judicial aspects, and this is beyond my ken, I fear.  If any political scientists are reading this and would like to contribute to designing this series, please contact me (or him directly).  SSRN is a very valuable addition to research distribution and widely read by law professors, who I'm sure would subscribe to (or search) a political science series.

Legal Professions Research

My primary area of research is empirical analysis of the legal profession and legal education.  For those readers with similar interests, here are two announcements:

1. The Law & Society SSRN abstract journal is being subdivided into multiple categories to handle the large volume of submissions.  I am the editor of the new "Law & Society: the Legal Profession" abstract journal, which will be publishing its first issue shortly.  A summary of the subdivided journals and subscription links can be found here.
2. There is a new Legal Professions Blog edited by Allen Childress (Tulane / GWU), Michael Frisch (Georgetown), and Jeff Lipshaw (Tulane).  I have not had the pleasure of meeting Allen and Michael, but Jeff Lipshaw is one of the most creative and unconventional new voices in the blogsphere.  In addition to his terrific intellect, Jeff is a former BigLaw partner and in-house Chief Legal Officer.  His sense of realism and candor is utterly refreshing.  I will be adding the Legal Professions Blog to my regular blog reading.

Street Signs and Two-Way Streets

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. 

MPSA Proposal Deadline Extended

The deadline to submit a proposal is now October 9, 2006. The conference will take place at the Palmer House Hilton on April 12-15, 2007. Go here for more.

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.

Law Blogger Census 5.0 Beta

Daniel Solove has posted the beta version of his latest Law Professor Blogger Census at Concurring Opinions and is looking for any updates or corrections. According to the current count, 290 law professors are blogging. Even allowing for one needed update (-1 for me), the University of Chicago remains in the lead with 16 faculty bloggers. Georgetown is close behind with 14.

Blog Forum – Interdisciplinary Ignorance and the Great Divide

This week’s blog forum takes up the relationship between law and political science. Our guests for the discussion are Frank Cross of the University of Texas and Gerald Rosenberg of the University of Chicago. Several years ago, Cross (1997) and Rosenberg (2000) both expressed similar concerns about the gulf between legal scholars and political scientists:

“The attitudinal model ascribes judicial decisions almost entirely to politics, not precedents. To date, legal scholarship has been remarkably oblivious to this large and mounting body of political science scholarship on courts. Some political scientists have been correspondingly unconscious of the legal model.”  Frank B. Cross, Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance, 92 Nw. U.L. Rev. 251, 252-53 (1997);

“Today, legal academics and political scientists inhabit different worlds with little in common. If they communicate at all, they can barely hear each other; they stand on opposite sides of a great divide, and they are looking in opposite directions.” Gerald Rosenberg, Across the Great Divide (Between Law and Political Science), 3 Green Bag 2d 267, 267 (2000).

We are very pleased that Cross and Rosenberg have offered to revisit this topic on the ELS Blog. Much has changed in the past few years. Empirical and interdisciplinary scholarship would seem to be a growth industry in the law schools, which suggests the unfortunate situation identified by Cross and Rosenberg may be improving. So is interdisciplinary ignorance giving way to understanding? Is the great divide narrowing? Stay tuned.