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.

Comments

[Mark A. Graber]

Some thoughts.

1. Rather important to note that both political scientists and law professors are a diverse lot. While some political scientists come to law with empirical interests typical of many students in American politics, others come to law with normative interests typical of many students in political theory. In this respect consider whether the law/political science distinction makes any sense of possible distinctions between such students of Walter Murphy as Jim Fleming (law), Mark Brandon (joint), and Judy Failer (political science). We might also toss in Sot Barber (political science) as an honorary Murphy student.

2. My sense is that rather than a great divide between political scientists and lawyers a new divide may be forming with lawyers and political science on one side who are attracted to statistics and rational choice, and lawyers and political science on the other side who are attracted to more historical/institutional analysis. But there are interesting differences still between law and political scientists on the same side, and more important, the divide between behaviorial and institutionalist work seems far less than previous. All salutary developments in my opinion.

[William Henderson]

Frank,

Thanks for opening this forum. At the outset, I have to confess that Gerry Rosenberg taught my Law & Social Science class during my 3L year at Chicago. During that quarter, we have several readings from the attudinalist literature, which I found much more illuminating than my Con Law: Equal Protection and Sub Due Process course.

I subsequently read the Great Divide and largely agreed with it. The attitudinalists made empirical claims of Supreme Court decisions (and to a lesser extent, federal appellate decisions). Law professors have not, by and large, directly engaged this literature--a recent exception is Sunstein's recent book, Are Judges Political?, which essentially acknowledges (rather than rebuts) the political dimensions of judicial decisionmaking.

That said, I think we can learn a lot--i.e., create knowledge--by informing political science methods with lawyers' more nuanced institutional knowledge of how the legal system actually works. Anyone who has clerked for a judge realizes that law is not all politics. But politics clearly affects some outcomes, especially at the Sup Ct level. Further, Con Law classes in which professors endlessly lament poorly reasoned judicial opinions are, in my opinion, misleading and counterproductive. Gerry was absolutely right to ridicule the legal academy's insular approach to jurisprudence.

Ideally, I would like to see law professors and political science answering the same research questions in companion law review articles. This would throw the difference approaches into fuller relief and stimulate a more concrete dialogue of relative merits. Hopefully these dialogues will find their way into the law school classrooms.

bh.

[Tracy Lightcap]

I'm only going to address the first question; I have a life and the Paper From Hell(tm) is calling.

And the answer is (drum roll, please): it depends on how you look at scholarship on the courts. Most of the scholarly interaction mentioned is concerned with policy decisions by appellate courts. If we gage both legal and political science scholars by their attention to this rather narrow area, then sure bet, there is more attention to each others fields and for that three cheers.

But what if we look at courts another way? Suppose we instead conceive of the role of courts as being adjuncts of state power. If we look at courts the same way we look at, say, police departments, the picture of what's important and what we need to know becomes much different. Then the characteristics of court systems as organizations for the application of social control comes front and center. This does, of course, include the limitations placed on court decisions by appellate policy; I'm not saying that what most law and court types are most concerned with isn't vitally important. But it also includes study of how courts work as organizations, what kinds of institutional borders do they maintain, what kinds of power do they exercise over other governmental concerns and what are its limitations, how are the courts administered, and a host of other problems. What I'm actually saying here is that we have a nasty tendency in both the law and in pol sci to treat courts differently then other parts of government when many of the most vital questions have more to do with everyday functions rather than whether The Nine are abroad in the land.

And there we find both sides of the equation lacking. Political scienctists seem to be branching out to the "law and society" side more than the law faculties today, reversing a long trend in the opposite direction. Bringing the sociologists and antropologists more into the mix would be good and more law faculties have done that. How to get a more relentlessly multi-disciplinary approach, however, is a question I can't answer. Not, of course, that that would stop me from having an opinion on it.