Thursday, June 16, 2016
The Rise of the Chicago-Style Article
One of my writing projects in its earlier stages is about the intellectual space that legal scholarship occupies. My provisional argument is essentially that legal scholars increasingly occupy a space between universities and the public that has been vacated by the increasingly technical nature of the social sciences (and humanities). Law professors are more and more serving as translators, taking ideas that the university creates and translating them for the consumption of the public and the powerful.
As part of writing this essay, I have done what I did years ago for another article: read lots of law review articles from past and present to get a sense of how they have changed. I wanted to remark on a (related) change I noticed. I leave considerations of whether this change is good or bad to others, but I think the change is significant as a positive matter:
(1) There has been a gradual but significant increase in the top law reviews of what I will loosely call the "Chicago-style article." I call this article the "Chicago-style" article because it is most commonly associated with the work of a group of faculty over the past few decades currently or formerly teaching at the University of Chicago Law School. The tactic is to lump together a doctrinal or institutional trend observed in many different areas of the law, and engage in a normative analysis of that lump. The Chicago-style article often engages in that normative analysis using the arguments and language of cost-benefit analysis. It uses the findings of social science articles as a main tool to perform this cost-benefit analysis. Social science findings might suggest that the doctrines or institutions of the law might not be achieving what they are intended to achieve, for instance, or do so at a cost that make them undesirable. The scholarly contributions of the Chicago-style article, among others, are the creation of the lump (noting how things that were thought to be different are actually similar) and the analysis of the lump (creating some new normative insights and proposals).
This style of article is becoming more and more common in law reviews, with one caveat. There is still the lump, and the lump is still analyzed using the core finding of social science articles as a major tool. Now, though, the normative analysis is often in style and substance less about the more economics language of costs and benefits, and more involving a range of other normative framings.
(2) More so than anything else, the Chicago article is the manifestation in the law reviews of the influence of empirical legal studies. There are still relatively few law review articles that engage in the analysis of new data sets or in the new analysis of old data sets. Far more common are articles using the (supposedly) settled findings of a social science literature to engage in a normative analysis of the law. The modal article of this genre reports some doctrinal rule that exists, and some (relatively) settled social science findings that call that rule into doubt. The findings are not reported in the law review article though.
This is quite different from what would have been found in the law reviews a generation or two ago, to be sure. This is still, though, engaging with doctrine. A scholar has to know the doctrine to tease out the empirical assumptions of the doctrine. Their proposals based on existing social science findings will involve changes to doctrine itself.
Posted by David Fontana on June 16, 2016 at 11:05 AM | Permalink
"....and also, for lack of a better wording, a willingness to be wrong."
Posted by: Allen | Jun 17, 2016 12:08:28 PM
This was a terrific and engaging post -as was your comment Glenn. Thanks to you both!
Posted by: AnonProf | Jun 16, 2016 11:00:41 PM
Thank you for the interesting comments. I think I agree with everything you say. There certainly is a Chicago-style article without the social science findings. My guess is that there was more of that article before now, so the rise is not as dramatic. My guess is also that the Chicago-style article featuring the social science is partly because Chicago is so interdisciplinary and has played such a role in the creation and proliferation of this style.
Posted by: David Fontana | Jun 16, 2016 11:49:30 AM
David thanks for an interesting post.
My reaction is a bit of yes and no.
On the "yes" part I think there is a distinct style of scholarship you identify and one that I would associate with the University of Chicago. I also agree (and here I should clarify up front I very much admire this style of scholarship but in trying to describe it succinctly much heterogeneity and nuance will be lost) that is has a bit of the "Here are 5 things in the law you never thought of together, and here is why when viewed as a set they actually give us an important insight you never saw" style to them. Finally, I agree that they are largely lumpers not splitters.
I think my "no" with you are on the suggestion that they are necessarily or even mostly normative or necessarily or even mostly social science harnessing. There is just a lot variation. Take three articles of the genre I very much admire (of a much longer list). Lior Strahilevitz, "The Right to Destroy," 114 Yale Law Journal 781 (2005), does do some lumping of disparate areas - real property, patent law, family law (involving reproductive tech, etc). It is also normative. But its not particularly social science focused. Then compare John Bronsteen, Christopher Buccafusco, & Jonathan Masur, Happiness and Punishment, 76 Chicago L. Rev. 1037 (200) - it sticks to one doctrinal area (though their larger project looks at many), applies social science research (hedonic adaptation), and goes some of the way towards normativity but not all the way (the last section considers the implications of their findings for various theories of punishment but not going all the way to say it means we should adopt x rather than y theory). Finally consider Eric A. Posner & Adrian Vermeule, Inside or Outside the System, 80 Chicago L. Rev. 1743 (2013). It puts together a lot of doctrinal space - Bush v. Gore, International Law, Supermajoritarian requirements, etc. The point of the paper is to introduce "the inside/outside fallacy, which occurs when the theorist equivocates between the external standpoint of an analyst of the constitutional order, such as a political scientist, and the internal standpoint of an actor within the system, such as a judge." The is not really harnessing social science data and at least claims not to really be normative, instead it is showing a particular error that the authors see.
Beyond the "no" is also a "yes and..." I think the hallmarks of this scholarship are a strong tendency towards co-authorship (especially between law folks from different doctrinal areas), and also, for lack of a better wording, a willingness to be wrong. The papers usually generate a single, interesting idea. They don't purport to try to prove it or defend it in a belt and suspenders sort of way, but are more about adding a new idea or way of looking at things into the discourse. While I wouldn't want all scholarship to have this hue (or really any single hue) this is part of what I love about the "Chicago paper."
Posted by: I. Glenn Cohen | Jun 16, 2016 11:30:01 AM