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. 

Comments

[Rick Lempert]

On law profs footnoting what they haven't read unlike soc sci profs, I think the reason is the footnoting fetish of law reviews. If we abolished unnecessary footnoting we would get rid of some of the footnoting complained about. But it is also the case that "find cite" footnotes often contemplate cites to what an author has read and does know; he/she just doesn't have the time to look it up.
On soc. scientists who get the law wrong, it depends on what the problem is. If it is to explore the psychology of responses to hearsay, it may not matter whether the hearsay would or would not be admissible under an exception. Similarly there are questions a soc. scientist could investigate in which asking mock jurors whether hearsay should be admissible makes sense, though that is not a juror task and other questions where the ignorance of how the law allocates responsibility for deciding admissibility would make the research irrelevant if not ridiculous. The basic point is that whether a correct understanding of the law matters depends on the topic being explored and the implications a researcher expects to derive from the analysis. Social scientists are too often prone to think their studies have important implications for legal policy and are likely to be way off base if they get the law wrong.

Rick

[Sean Wilson]

I'm curious, is the suggestion here that when law professors cite attitudinal literature, it is a sign that the legal academy is now more cognizant of something that advances knowledge? This is a problematic suggestion. The data in the Supreme Court data base never supported the theory that political attitudes dominate the Court. It only supported the theory that an attitudinal component is present within the Court's decision structure -- something that non-attitudinalists like Dworkin have always believed. See my SSRN paper:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=922183

So if anyone, legal or otherwise, relies upon statistical misinformation, they face the paradox of knowledge becoming worse as disciplines become more familiar. The point, then, is this: there is much more to interdisciplinary thought than the reading of the headlines of other people's news. To really conquer ignorance, you must know not what another says, but whether the opinion's basis is valid. And to really do that properly, I agree with Larry Solum: you must know history, philosophy, law, statistics, empirical modeling, and more law.

[William Henderson]

Gerry,

The "find source" practice predates the last few years. On balance, if more attitudinalist literature is being cited, then more of it is being read--but I agree, there is not a 1 to 1 relationship between citation and actually reading the source.

True scholarship requires that we actually read what we cite. The reference list in a typically social science article is 10 to 20 sources. The disparity with most law reviews is perhaps telling. bh.

[Jeremy A. Blumenthal]

This is a great set of cross-blog threads. Some thoughts:

(1) My recurring soapbox that ELS isn’t only about economic analysis or political science, but includes experimental approaches, including (especially) psychology [unsurprising disclaimer: my social science background is in social psychology].

(2) Psycholegal work is a good example of a number of the issues raised here. First, there have long been a number of joint J.D./Ph.D. law/psych programs explicitly geared toward interdisciplinary research – that is, focusing not just on getting both degrees, but on how the two disciplines interact and inform each other. Nebraska, though it isn’t the only one, is quite a good example, and has produced some very good legal academics.

Second, though I agree there is a lot of flawed social science work done by legal academics, the street going the other way isn’t so small, either. My usual examples are papers by psychologists studying hearsay. One had a lovely experimental design seeing whether mock jurors could ignore hearsay evidence, but didn’t realize that the “hearsay” in the treatment condition actually fell under a hearsay exception. Another examined whether mock jurors thought certain hearsay evidence should be admissible – well, judging admissibility isn’t the jury’s role.

Peer review, while very important, won’t necessarily catch such problems – for instance, a psychology journal with psychologist peer reviewers might not notice the hearsay exception concern. It’s incumbent on the researcher to know both fields in which he or she is writing. If that’s done through self-education – formal or informal – then terrific. But, as some have said on here before, collaboration between people in different fields is just as good or even better. You get the expertise from both fields, and add the benefit of idea-bouncing. One of the really good examples, IMHO, is a Cornell L Rev article by Richard Friedman and Steve Ceci on child suggestibility – Friedman an expert on the law, Ceci on the psychology research.

Rant over. Thanks.