Wednesday, May 10, 2006
ELS, L&E, &c.: Jumping Right into the Fray
Thanks to the Prawfs gang for inviting me to join the growing gang of guest blawgers here. My fields, broadly defined, are employment law, discrimination, constitutional law, federal civil procedure, and law & economics -- but this is blogging, so I reserve the right to ramble about whatever I like.
I'll start by jumping into the PrawfsBlawg / Empirical Legal Studies Blog fray over... well, I guess we can call the debate, "what exactly is 'empirical legal studies'?" Is it a subfield of something else, or is it (as Michael Heise suggested) its "its own substantive subfield within law"?? Is it a field that lets one be a dilettante (which actually sounds fun, at least to Paul Gowder)?
Let me make a tangential point: within the legal academy, ELS is about where Law & Economics was a few years ago. Not everyone has seen the need for more empirical work in law, but (a) it's growing in acceptance as as important tool of analysis, (b) there is starting to be a community of legal scholars engaged in the field (as evidence by the ELS blog), and (c) non-PhDs are becoming increasingly able to participate meaningfuly in the field.
I've recently been hearing the view that there's no longer as much a distinct field of "law & economics" because so many non-ec-minded legal scholars thee days discuss externalities, supply-and-demand, incentive effects, etc. I think ELS is getting there. Just as in certain fields (e.g. corporate law) you really have to know the law & ec scholarship, even if you're not doing law & ec yourself, I think we're getting to the point at which it'll be hard to analyze a legal problem without some familiarity with the relevant empirical work. Without anticipating this debate, I've already been ambling in this direction: I wrote a paper on occupational gender segregation that was basically an economic modeling piece (which I do a fair amount of -- you know, the sort of scholarship that allegedly garners fewer props from ALEA these days, grumble grumble) but started with a survey of the empirical studies of women's wages, employment, and occupational segregation.
In short, I think that at least in legal fields where empirical data exist, ELS scholarship is becoming one significant way to study a legal subject. Of course, that just makes it one among a growing number: the legal philosophers will be outraged that I don't cite or consider much legal philosophy in my work; the law & ec folks don't like pieces that ignore law & ec; and the ELS studies will (often justifiably) scoff at legal scholarship that doesn't note the existing empirical evidence.
While it's good that legal academia is becoming so much more diverse in methodology, I worry that it's becoming intractable. In writing one lousy employment discrimination piece, am I required to consider the work of academics in econ, ELS, women's studies, psychology, and phrenology? How many PhDs will one need to do competent scholarship that won't draw snickers from some poor neglected sub-field? Cf. Kurt Vonnegut, Player Piano (1952) (hypothesizing a future in which nobody would be employed without possessing two PhDs).
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