Tuesday, May 09, 2006
Are ELS or "law & econ" distinct substantive areas of legal inquiry?
Leib's post fails to consider that methodology may constitute its own substantive subfield within law. Methodologists in fields outside of law argue that it should. (E.g., political scientists Gary King (Harvard) and Lee Epstein (Northwestern) wrote in 2002: "The law is important enough to have a subfield devoted to methodological concerns, as does almost every other discipline that conducts empirical research.") Finally, to the extent that legal scholarship continues in its trajectory toward the empirical, it is particularly important that folks with substantive legal backgrounds and expertise contribute to and help shape the development of a subfield devoted to empirical methodology and technique. As King & Epstein also noted: "Scholars toiling in the social, natural, and physical sciences can help, but a whole field [law] cannot count on others with differing goals and perspectives to solve all of the problems that law professors [legal scholars] may face."
It is, I admit, an interesting idea that ELS or 'law & econ' might after all be substantive areas of legal inquiry. But it raises a few questions: I think the analogy to methodologists in Political Science is provocative but ultimately doesn't work. The methodologists in Political Science are pretty 'meta,' for lack of a better term. The 'law and econ' movement is more analogous to 'rational choice,' for example, a technique that pervades inquiry in American Politics, Comparative Politics, and International Relations, the substantive areas of politics to which the technique is applied.
I think I'd agree that pure methodologists are a welcome addition to the legal academy. But it remains the case that the mission of most law schools might be to produce lawyers and not scholars. This pedagodgical mission might counsel against hiring technicians in search of a play, so to speak. My original point was simply that it bears noticing that the legal academy would tend to look down on someone who took a broadly theoretical approach to multiple substantive areas of law; yet, if your tools are fancier, a school wouldn't worry much about whether you actually know anything about the doctrinal areas in which you are teaching.
To use Michael's analogy, political scientists can't usually specialize in 'rational choice' (indeed, if they don't understand the technique, they can barely read the major journals in the discipline) but must pick a substantive area of concern of politics, while law and econ types -- who make up
a very sizable group in the profession (unlike the methodologists in Political Science who have an even harder time getting a job than the theorists) -- need not to be successful.
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Ethan raises fair and interesting questions. I'll side-step what might be happening with methodologists in political science and economics (and elsewhere) to better focus on and engage with what I take to be his original point. Specifically, even if Ethan's observation is correct (that "if your tools are fancier, a [law] school wouldn't worry much about whether you actually know anything about the doctrinal areas in which you are teaching"), I think that such a legal scholar should (and, at most places, would) invite some professional peril. Moreover (and to resist Ethan's hypo a bit), as a practical matter most legal empiricists bring helpful (and often necessary) substantive subject matter expertise to bear on most projects.
Posted by: Michael Heise | May 9, 2006 11:43:14 AM
I agree with Professor Heise “that such a legal scholar should (and, at most places, would) invite some professional peril.” In order to identify a useful research question and put together a decent research design, one needs to have a good grasp of the literature in the relevant area of law and the cognate social science discipline(s). Someone who specializes in research methodology can, of course, gain that knowledge easily by cooperating with a scholar knowledgeable in a particular field. Which brings us to another point made by King and Epstein in their 2002 piece: That cooperation and co-authorship is (still) undervalued in most law schools.
Posted by: Sam Baumgartner | May 9, 2006 12:46:43 PM
I hate to be contrarian here, but I would be AGAINST the recognition of an ELS subfield. Rather, ELS articles should be written in a way that is accessible to nonempirical scholars; similarly, nonempirical scholars can benefit from overcoming discomfort with quantitative analysis.
The value of ELS is that it reduces the need to argue over factual assumptions, including the effect of legal rules. Many areas of disagreement among nonempirical legal scholars can be formulated as testable hypotheses. If ELS is ghettoized into a "methods" subfield, we will miss the opportunity to improve the functioning of law and ultimately the political process.
The cost and complexity of empirical research is plummeting; there is no legitimate reason to mystify this skill set. Most lawyers can learn the basics by reading some studies, attending a workshop, and buying a few reference books. For most law professors, a moderate investment in this new human capital will pay large career benefits. Further, sophisticated consumers of empirical work will increase both output and quality.
Posted by: William Henderson | May 9, 2006 3:45:59 PM
It seems that both ELS and L&E are already treated as subfields. Both now have conferences (CELS, ALEA) and journals (JELS, JLE). Ethan asks whether these are "distinct substantive areas of legal inquiry." Is this a different question? L&E has casebooks and courses devoted to it (so does Law and Social Science). I don't think L&E has been "ghettoized," nor is it solely a methodological subfield. While I agree with Bill, that ELS should not be only a methods subfield, why not consider it a subfield that includes many who do empirical work regardless of area? It seems that a success of L&E is that it permeates so many substantive areas. The same claim could be made about ELS. But is ELS perceived to be too methods oriented and therefore too dissimilar to L&E? As Bill blogged about, there were many "empirical" papers at ALEA. I'd like to hear more about how the ELS movement is perceived versus the L&E movement.
Posted by: Jason Czarnezki | May 9, 2006 4:15:38 PM