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Friday, June 02, 2006

Political Science and the Legal Academy

Mark Graber has some interesting thoughts on political science and the legal academy at Balkinization.  Given that I sometimes think of myself as a political theorist trapped in a law school (and sometimes a lawyer trapped in thinking of the world through the categories of political theory), I think I might be able to weigh in on the subject.  In brief, here's the part of Graber's claim on which I'd like to focus:

Today, the crisis of scholarship is in political science departments rather than in law schools. As what counts as legal scholarship has expanded, what counts as political science scholarship is narrowing. Fueled in part by a new generation of administrators who increasingly evaluate scholarship by the amount of grant funding for the research and in part by a new generation of political scientists more concerned with getting money than ideas, what constitues good political science is increasingly being determined by market considerations. Statistics are good because you can get grants to collect data. History is bad because you have to read the text yourself. Objectivity is when you have a second year grad student code opinions as legal or conservative. Making the decision for yourself on the basis on intensive textual analysis is subjective and, hence, not really scientific. One consequence of all of this is that rather than think about interesting problems in the world and read texts, too many younger scholars are being told to use those methods that promise "certainty, and require expensive machinery and graduate students, so they can get funding. More than one law professor has complained that the result has been lots of statistics that either have little bearing on an important problem in the world or totally misconceives the problem in the world. Another consequence is that teaching in a law school has become increasingly attractive to a great many of us, precisely because the legal academy is becoming the place where ideas are judged on their merits, rather than on their economics. This situation is unfortunate. As humanistic political scientists either physically or emotionally leave their departments, fewer and fewer persons are left to train the next generation of scholars. The generation of political scientists that ranged from Howard Gillman to Christine Harrington to Jeff Segal has, in my judgment, been particularly creative. I fear, however, for the next generation and hope, that in addition to wooing us with both higher salaries and more supportive intellectual environments, law schools and law professors combat the increasing problems with political science with the same fervor that some of us sought to combat the problems we saw in legal scholarship.

There is something undoubtedly true and important about Graber's diagnosis of political science.  But I think he is underestimating both the market forces that caused some of these problems (and getting the causation a bit wrong) and the current forces within law schools and political science departments that will not help matters. 

First, Graber claims that "teaching in a law school has become increasingly attractive to a great many [political scientists interested in qualitative rather than quantitative research], precisely because the legal academy is becoming the place where ideas are judged on their merits, rather than on their economics."  Really?  Is the legal academy "becoming the place where ideas are judged on their merits"?  Ideas are often judged based on their appeal to second-year law students -- and promotion and prestige is tied to a system so far removed from intrinsic "merit" that this argument is hard to maintain.  A discipline without peer review really should have a difficult time making the claim with a straight face. 

Quite simply, political scientists seek jobs in law schools because the pay is better and tenure is relatively easier to attain.  These basic economic points could not be denied -- and plenty of my political science colleagues would take jobs in law schools over jobs in political science departments for economic reasons, notwithstanding their knowledge that they prefer to study and teach political science rather than law.  Indeed, a handful of my junior professors in graduate school were scheming to figure out how they could get law teaching jobs (without JDs), not because they didn't like political science or feel welcomed by it but because of the basic economics.  Most of them would hate dealing with law students -- who are a very different clientele than grad students.

This has led to another dynamic in entry-level political science hiring.  If your resume shows you to be interested in law (i.e., you also have a JD in addition to your PhD), political science departments don't waste their time with you.  They assume you'll get and take a law teaching job, so don't bother.  My sense is that it has nothing to do with whether you want to undertake qualitative or quantitative research; you just aren't a viable candidate because political science departments assume that no one in their right mind would do mostly the same work for half the pay and half the job security.  The political science departments may be right -- but they may be wrong too.  They are as much contributing to the problem by not trying to keep these candidates within political science.  Take Keith Whittington.  He turned down what must have been a much more lucrative offer from UT-Austin to stay in his political science department.  Others might do the same.  Although I was widely published and cited within political science (indeed, moreso than within legal circles), I had a much easier time on the law market than the political science market.  I didn't have to choose in the end because no political science department would have me.  But I think I was untouchable because political science departments assumed I'd go to a law school, not because I was doing qualitative work.   

To be sure, Graber has a different conception of "economics" in mind that scares humanistic political scientists away from political science departments and into law schools.  This may be somewhat right at the margins.  But you'd have to be blind to ignore that plenty of qualitative work continues in political science departments (indeed, in almost every subfield too!) and that the dominant paradigm in the nation's best law schools is "law and economics" (and the up-and-coming ELS), with all the quantitative techniques those paradigms demand.  Techniques, mind you, that Graber claims have taken over political science.  So I'm not sure law schools will much help.  We humanists have to police our departments from the inside; if you are relying on law schools to carry the mantle, I think you should prepare yourself for disappointment.  At least political science has The Perestroika Movement -- and vigorous debate about methodology with strong defenders of pluralism.  What does the law have?  Conferences to teach us all statistics?  Critical Legal Studies is dead.  Long live CLS.

Posted by Ethan Leib on June 2, 2006 at 01:02 PM in Life of Law Schools | Permalink


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I think I understand what Ethan is saying, but "dominant paradigm" suggests it is the way most people in the legal academy think about how one does or should approach the study of law. I think it is fairer to say that law and economics is the leading, if not dominant, organized cross-disciplinary approach to placing law in (and I may get this phrasing wrong) a liberal arts, or research university, or humanities, or behavioral theory context. There are other approaches obviously - e.g., Wisconsin law and society, CLS, Catholic Social Thought - but L & E, primarily due to the giants who used the approach, Coase, Richard Posner, etc., as well as the theoretical elegance of the approach - seems to me clearly leads the race.

I can't speak for others, but I find the economic approach to law to be a hugely powerful theoretical approach in many, but not all, cases. Clearly matters of economic regulation (antitrust, regulated industries, etc.) are significantly informed by it. The political spillover there is ifyou think the economic world, and policy decisions therein, should be dictated by something other than efficiency and welfare maximization. A great example of economic influence on law (coming from an academic source) from early in my career was the Areeda and Turner approach to predatory pricing. All the violins and harps in the world didn't help you as a "little guy" plaintiff if the big guys were pricing above marginal cost (well, average variable cost as a calculable surrogate). But Robinson-Patman still is on the books (to my chagrin) as a way of penalizing efficiency, so politics informed by William O. Douglas' view of the "little guy" still intrudes.

But even to someone who thinks economical analysis informs much, the backlash, I think, is really a reaction to the attempts (all interesting, all in good faith, most very clever) to posit economics, and the implicit utilitarianism and consequentialism, as (a) the "ought" of all normative analysis, whether economic or not, or (b) a unified theory of behavior that, if we work at it hard enough, explains or is a theory of everything. So to the extent adopting some deontological notions, even some without price tags (or if they have price tags the price is never calculable so they really don't have price tags unless your model requires them to - see, e.g., Posner on sex), is wholly rejected by leaders of the L & E as non-rigorous thinking or mere flowery language (see, again, Posner's Problematics of Moral and Legal Philosophy), that pushes a number of us off the ship.

Posted by: Jeff Lipshaw | Jun 3, 2006 2:43:00 PM

Ethan: I don’t understand how one can argue that law and econ is “a dominant paradigm” in law schools all the while admitting that most legal academics are utterly clueless about economics. If anything, I found most law school folks to be hostile to law-and-economics, with hostility stemming partly from the fear of numbers, partly from the determination to hide empty content behind flowery language, and partly from the unwillingness to acknowledge that everything comes with a price tag and that money doesn’t grow on trees. If I had a dollar for every time when some defensive chap says “I don’t agree with law and economics,” I’d get enough for a nice vacation. I bet you don’t normally hear people saying that they “don’t agree with legal history.”

Posted by: Kate Litvak | Jun 3, 2006 12:37:41 AM

Paul: Obviously, my claims are based on anecdotal evidence. And I know of one JD on the political science market last year or the year before that got 12 or 13 poli sci offers, something unheard of in the political science community. This candidate would likely not have been competitive on the law market because he had been out of law school too long. More, his advisers were solely political scientists (something that signals your seriousness in political science rather than law). Finally, and perhaps most interestingly, he ended up in a public policy school -- and I'd imagine that was at least in part because of the relative ease of tenure and better salary.

Ross: That is great for Brown; and you are certainly right that the salary problem (and the tenure problem) will make your searches hard. But apropos my disagreement with Graber, I assume you aren't just looking for quants. Indeed, Cory B. is no quant -- though, to be fair, you hired him before he finished his JD. Will you be able to hold onto him once his law offers start rolling in? I'd doubt it. But who knows?

Kate: You may be right that most lawyers are not conversant in high-level quantatative work. But I don't think it is too controversial to argue that 'law and econ' is a dominant paradigm in the top law school. Isn't Coase still the most cited law review article?

Jeff: I understand what Mark is getting at; I wanted to add something else to the conversation. I don't think law schools are immune from the sort of economic incentives he's talking about anyway. Law schools are obviously better funded -- but have you seen what, say, George Priest brings into Yale in a given year?

David: Of course you are right. I'm just talking trends. Law and History and Law and Society and Law and Philosophy will live on; but so will the History of Political Thought; Contemporary Political Theory; Qualitative International Relations; Comparative Politics in the case study tradition; etc.

Posted by: Ethan Leib | Jun 2, 2006 7:20:14 PM

It's a great post - and very well written! Though I don't understand the CLS reference at the end, unless you really want CLS to live again.

To pick just two reasons why I don't think every legal subject will get mathematical (and I mean that in the sense of "even though mathematicians would never think of doing this work, it is technical"), one not so great and one possibly fine:
1. Entry level candidates are still often chosen on the basis of criteria that have nothing to do with math or statistics; viz., for whom they clerked, where they went to law school, that sort of thing.
2. Economists are doing great, sure, but so, as always, are historians - and they don't get as quantitative or theoretical. History majors continue to dominate the legal academy; other than lawyers, history Ph.D.s are the people who go work for the Times and the White House, as well the only sorts of academics, other than the Freakonomics crew, who sell books, and so on. And there's still plenty of demand for historians in the legal academy, as a recent look at the hiring by my alma mater will attest.

Lior S. also blogged about the puzzling persistence of qualitative research for you lot a while back, as well.

Posted by: David Zaring | Jun 2, 2006 6:04:04 PM

I could be wrong, but what I think Mark is getting at when he says "ideas are judged on their merits, rather than on their economics" is something a bit more narrow than what you have proposed here. He talks a good bit about external funding before making that remark. Pol Sci departments (along with higher level administrators) have increasingly valued externally funded research projects, largely because they get to keep a nice chunk of the funding for the institutional overhead. The perception is that highly quantitative projects have a much better shot at getting funded than more qualitative work. While I'm willing to guess that more quantitative projects are funded externally than qualitative, this may be attributed to the relative proportion proposed for funding. I do recall seeing projects funded by NSF and other funding institutions that don't involve much quantitative analysis.

Perhaps the bigger point may be that there is at least the perception (by some pol scientists) that law schools (and law reviews) are open to a wider range of questions and approaches. When tenure hinges on consistently hitting about 5-8 pol sci journals that have rather narrow ranges of "acceptable" approaches and "interesting questions", some people may find other pastures to be greener. By saying "acceptable" and "interesing questions," I merely mean that your probability of publishing in those journals is pretty low if you go outside the norm of scholarship that regularly appears in those journals.

On your other point about pol science depts not being interested b/c candidates have law degrees - I find that hard to believe. Maybe it happens in the top 10-20 depts, but it's never come up in any searches that I've been involved with.

Jeff Yates - J.D., Ph.D.
Associate Professor
Department of Political Science
University of Georgia
SSRN: http://ssrn.com/author=454290

Posted by: Jeff Yates | Jun 2, 2006 3:52:02 PM

"The dominant paradigm in the nation's best law schools is law and economics"? Ethan, with all due respect, what have you been smoking? Which top schools are dominated by law and economics? Most people in top law schools can't tell a demand curve from a supply curve, much less read a regression table or understand a formal model. Law schools have some number of folks who can vaguely talk about incentives, but that has as much to do with law-and-economics as some vague chatter about morality has to do with law-and-philosophy.

Posted by: Kate Litvak | Jun 2, 2006 3:25:42 PM

I appreciate this exchange and want to process Graber's comments before saying much, but I do want to quibble immediately with the claim that: "If your resume shows you to be interested in law (i.e., you also have a JD in addition to your PhD), political science departments don't waste their time with you."

That's certainly not true at Brown. There are two people with both degrees in my department and we'd love to hire a third. (The third recently retired.) Indeed, we were hoping to hire a post-doc with law interests this year as well and were not successful in finding one. So the problem is not all on the demand side. The primary problem, I think, is that we can't offer salaries competitive with law schools.

Posted by: Ross Cheit | Jun 2, 2006 2:03:42 PM

This has led to another dynamic in entry-level political science hiring. If your resume shows you to be interested in law (i.e., you also have a JD in addition to your PhD), political science departments don't waste their time with you. They assume you'll get and take a law teaching job, so don't bother.

Ethan, do you have a concrete sense as to how common this experience is? Call me curious...

Posted by: Paul Gowder | Jun 2, 2006 2:02:29 PM

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