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Wednesday, December 13, 2006

D'Amato and the Interdisciplinary Turn in Legal Education

Last night, thanks to Brian Leiter, I came across Anthony D'Amato's fascinating new article entitled, The Interdisciplinary Turn in Legal Education. Here's the abstract, with some reflections after the jump:

The nature of law and legal practice is changing with the addition of interdisciplinary scholars to law-school faculties and interdisciplinary studies to the law curriculum. However, the accessibility of non-law disciplinarians in the rest of the university raises the question of the cost-effectiveness and opportunity costs of importing them directly into the law school. This Article criticizes the interdisciplinary turn on three grounds. First is the unlikelihood that the joint-degreed persons who join the law faculty will happen to be the ones that their colleagues will end up collaborating with. Second is the even greater unlikelihood that any given discipline can communicate usefully with another discipline. Third is the opportunity-cost factor: that the new interdisciplinary courses will crowd out an essential part of the legal discipline, namely, an understanding of the foundations and dialectical evolution of its forms of language.

I found D'Amato's essay incredibly well-written: provocative, sharp, and at times funny. But I'm not sure I'm completely persuaded by the thesis and its implications. Consider the first argument, that law faculty will be unlikely to collaborate with the jointly degreed persons. Based on my three semesters at FSU last year and Miami this fall, I have found the opposite phenomenon to be true. Until he decamped to UVA this past fall, my next door neighbor at FSU, Greg Mitchell (JD/Phd in psychology), co-authored pieces at least once with both Jon Klick (JD/Phd in economics) and another time with Adam Hirsch (JD/Phd in history). Klick has also co-written something with Fernando Teson, and Klick's presence on the FSU faculty has also helped me in countless ways with even my more removed work in criminal justice issues and legal theory. While I've been visiting Miami this semester, I've also spent many hours in the company of Ben Depoorter, another Phd in economics. As you might recall from my posting on Miamifest last week, Ben was also a participant and having him there was invaluable for many of our presentations. So there is (admittedly anecdotal but robust) evidence of both formal collaboration (co-authorship) and informal (how do I solve this particular problem in my project, Ben?), and having jointly degreed people (or even just people with Phds in other fields) can be a great resource for those working on more traditional legal issues. Indeed, I wonder whether people who are jointly degreed and on law school faculties are more likely to collaborate than those with just JDs on the faculty, either because of selection effects (these are the people who wanted to work in a different setting than their "home" discipline) or because in those "home" disciplines, collaboration comes more naturally and is encouraged more than in legal scholarship, which reserves some suspicion for co-authorship.

I understand the opportunity cost concern raised by D'Amato, but I'm not sure the solution to the problem he identifies is opposition to interdisciplinarity. For example, D'Amato seems to express concern that young law professors do not know "where the words and phrases they use came from." (p. 74 of the ms). He writes:

How many young law professors know that if a losing party wanted to appeal a trial judge’s decision, he had to sue the judge for theft of his legal rights? How many law teachers understand the origins of the jury system and the evolving bifurcation of facts and law (which remains an issue today in the phrase “a mixed question of fact and law”)? How many know that the early jurors asked questions of the parties and their attorneys, and were accustomed to going around the neighborhood interviewing citizens and poking into evidence? How many are aware of the self-protective reaction of the judges in turning to formalism?

It's true that I don't know any of this stuff. (It's also true that I'm not sure I or my students are worse off because I don't know any of this...but that's another matter.) But it seems to me I'd be more likely to know this if I were trained in part by legal historians when I was a student, or had some exposure to this knowledge through having a legal historian as a faculty colleague, or someone like D'Amato. Moreover, because most JD's have a "presentist" bias in their scholarshp and orientation anyway, I doubt the interdisciplinary turn is what's impeding our understanding of law's "foundations and dialectical evolution of its forms of language." Certainly, many of the issues D'Amato raises regarding what we've lost sight of are matters to which my JD-only professors at Harvard never alerted me.

In any event, as I said, it's a very interesting and provocative essay, and there's one ironic aspect of the essay worth highlighting: it is an intensely erudite piece, no doubt the product of familiarity with if not fluency in a wide range of disciplines outside of law. For what it's worth, D'Amato himself has a Phd and was initially cross-appointed in Political Science at Northwestern when he was a junior prawf too.

N.B. Josh Wright has added some thoughts to this discussion regarding how interdisciplinary work in law and econ has influenced his area of antitrust.

Posted by Administrators on December 13, 2006 at 08:25 AM in Article Spotlight, Dan Markel, Legal Theory, Life of Law Schools | Permalink


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Xavier's comment is not only subtle but also fundamental. A change in the expectation of the future income to a piece of resource will instantaneously result in a change in the present value of that piece of resource. A perpetual tax rise of $100 per year reduces the taxpayer's wealth by $2,000 instantaneously given the rate of interest is 5%. This is what economics can precisely predict. What economics might not be able to predict is the shocks that trigger the change in the expectation of the future income, such as the decision by the congress. For the same reason, one should not blame economics for its failure to predict today a rise in the price of wheat tomorrow, since it is entirely the astronomers' fault of not being able to foretell today that there will be a tempest that will destroy half of the crop tomorrow. Otherwise, as economics predicts, the price of wheat will go up right away.

Posted by: Zhaofeng | Jan 10, 2007 11:36:39 PM

Economic theory isn't very good at predicting future price movements because, to the extent that economic theory can predict future prices, those expectations will usually be reflected in current prices. A more reasonable test of the predictive value of economic theory would be to test whether price changes in response to certain events can be predicted. By that measure, I think economic theory does reasonably well.

Posted by: Xavier Kowalski | Jan 10, 2007 6:53:25 PM

Well, what exactly is economics good for? Certainly not prediction of economic events--the stock market, tomorrow's value of the dollar, whether recession is coming, whether we're in a recession right now or not, whether housing sales are going up or down. But if an economist cannot predict anything relating to the market or economic phenomena, then economics is a science without predictive value. But what kind of a science could that possibly be?

We may be living in a world where 99% of what is going on is unknown to us. We do make fitful progress through the disciplines, which study things deeply (if narrowly). Some things really "work." But we should not bow down to the current intellectual hubris.

Yes, I am agnostic as to the internal coherence of any given discipline. To boot, if its precepts are not rationally exportable, that is all the more reason to accept my thesis against interdisciplinary appointments.

Posted by: Anthony D'Amato | Jan 5, 2007 9:00:04 PM

On page 38, you do say this: This puts QL on a higher footing than Marxism, probability theory, or even law, sociology, and economics. For external observers have not been able to prove the internal consistency of any of these latter-mentioned disciplines.

Are you saying that these disciplines might be internally consistent, but that no one can (or has yet been able to) prove it? In any event, if the point is that all (or nearly all) disciplines from the outside might be as internally inconsistent as theodicy is (in your view), then why doesn't that logic extend further? I.e., if outsiders should be agnostic as to the ability of economics to spawn new insights in any other discipline, why not be just as skeptical as to whether economics is good for anything whatever?

Posted by: Stuart Buck | Dec 14, 2006 2:44:30 PM

I do not claim that internally incoherent disciplines are good for nothing. The discourse of probability has certainly proven to be extremely useful to many other areas of human knowledge.

I also did not claim on p. 38, to which you refer, that law, economics, and sociology are internally incoherent. They might or might not be. They might or might not be rationally exportable. Subdivisions of them might be different in these respects than other subdivisions.

Let’s take the case that I did discuss in the Article: theodicy. There is a substantial discourse on this subject, and I’ve read some of the many books and articles that are devoted to proving that a good God is compatible with the presence of a great deal of gratuitous evil and suffering in the world. Absolutely none of these has convinced me.

Now suppose a theodicist invites me to a few hours’ discussion on creationism. It’s certainly possible that he may have some useful things to say about it. But to the extent that he is holding himself out as an expert in theodicy, and that out of his expertise comes an insight into the failure of Darwinian evolutionism, that is where I turn down the invitation. A few hours or a few minutes are far too much time to spend with a theodicist on the question of creationism.

And that, only that, is the point of my article. It is cost-ineffective to choose to collaborate with a theodicist on the problem of creationism. That doesn’t mean that nothing can possibly come of it. One might get an idea from the opposite of what the theodicist is saying. Or one might want to quote the theodicist’s position as a strawman.

Posted by: Anthony D'Amato | Dec 14, 2006 11:07:53 AM

I think Grimmelman has forgotten the lesson of Zeno's paradox, as D'Amato correctly observes: "Infinite unlikelihood is as close to zero as one might get in an indefinite number of trials, but it isn’t exactly zero."

Posted by: Prawfasaurus Campus Regi | Dec 14, 2006 10:54:16 AM

Prof. D'Amato,

Does your claim about internal consistency prove too much? You claim that collaboration is not possible (or not likely to be so?) unless the home discourse is internally coherent. But if law, economics, sociology, and probability theory (and anything except quantum theory?) are all internally incoherent (p. 38), then why is the lack of collaborative usefulness the only point to be made against those disciplines? On your account, is any discipline outside of quantum theory good for anything?

And why is a strong form of internal coherence a sine qua non anyway? I.e., probability theory may not be reducible to one grand unified theory that completely explains every possible aspect of probability. But does that really mean that it has no useful observations to offer anyone else?

Posted by: Stuart Buck | Dec 14, 2006 10:30:34 AM

I think there's some terminological confusion that I'm experiencing with reference to your claim. What do you mean, exactly, by "real world?" That sounds like the sort of question that ignorant hecklers throw out to harass physicists and philosophers, but it seems like it's an open issue here. Because I'm having a very hard time grasping the sense of "real world" that includes Paul and Mary, but fails to include electrons, quarks, bosons, et al. (Not least because Paul and Mary are ultimately made up out of those particles!)

It can't be things that we perceive directly -- because we don't perceive anything directly (we only perceive the sun by means of the light that it emits, just as we only perceive electrons by the energy that they create). It can't be things that are described in ways that are naturally intuitive in English, because there are innumerable counter-intuitive real things -- I particularly like the continuous probability and infinite series things, even though you deny that they are quite so counter-intuitive -- but we can imagine other things that are more counter-intuitive. The idea of the universe as infinite, for example. (It's easy to use infinite things for these examples, I think because of what Kant described in the Third Critique when talking about the sublime -- the sense of boggling the imagination that we get from contemplating that sort of thing.) Or the big bang -- how is it that there was no universe before the big bang, and how could all the stuff in the universe have been compressed into a single point? The English language can't really capture any accurate sense of why there's no "before the big bang."

So that's question 1: what's the real world? I'm also not quite sure I understand your distinction between division of labor and emergence. Your example of emergence in the paper is Mendel's discovery of dominant and recessive traits -- but was that supposed to have something to do with his training in physics? I'd intended the murder-brain example to be different from, say, the importing of statistical tools into other disciplines. Statistical tools don't generally change anything fundamental about a discipline, just give it a new methodology to look at the old questions. (Holding back a query about whether the quantitative revolution in political science changed anything fudamental.) But if they found some kind of environmental physical cause of murder, it seems like that would radically change our notions of criminaly responsibility. Is that still "division of labor?"

Posted by: Paul Gowder | Dec 14, 2006 2:18:43 AM

1. If you intersect a line segment, the probability of crossing the line at a predetermined point is infinitely unlikely. But that is not the same as zero. People talk loosely as if infinite unlikelihood equals zero, but obviously it doesn’t. Infinite unlikelihood is as close to zero as one might get in an indefinite number of trials, but it isn’t exactly zero. There is no translation barrier in this example.

2. An infinite converging series can be intuitively understood: as we get closer to the goal, we get correspondingly smaller (This is how parallel lines seem to merge at the horizon, as Poincaré saw in 1904; he anticipated Einstein’s relativity theory.) No translation barrier here either.

3. Electrons, quarks, hadrons, muons, and the whole zoo of them obey quantum logic. They are not real world entities, as you suggest.

4. Paul, you hit on my sore point. I wrestled with the question whether mathematics is a discourse. If it is, then it could be a type of counterexample to my thesis. To be sure, we call it a discourse, and yet that could be a figure of speech. Mathematics is a collection of symbols defined by each other, as Russell & Whitehead showed. Like logic, it is a tautology. It “translates” to the real world in a funny sense: you assume one of the symbols applies to the real world, then you work with other symbols, and at the end the result you reach on paper always (so far) seems to match up with the real world. Einstein was floored by this fact. Kant thought that therefore mathematics must be synthetic. Putnam has recently shown that you could consistently redefine what you mean by “counting” and then all of math would suddenly be mismatched with the real world. However, you are right in equating math with language, and language itself isn’t a discourse, it’s the set of tools that make discourse possible. At the present time I’m inclined to think that math, logic, symbols, and words, are not discourses but rather are tools.

5. Your murder-in-a-brain-center example is not interdisciplinary as I used the term in the article. Rather, it is an example of cross-disciplinary division of labor. Division-of-labor collaborations are very useful, as I conceded at the outset. Of course the findings of brain researchers are relevant to law, but do they tell us anything new about law? My answer to that question is “no.”

Posted by: Anthony D'Amato | Dec 14, 2006 12:29:38 AM

I'm not sure that "discourse" is a useful criterion for "accuracy," or for exportability. Sure, quantum mechanics is hard to describe in ordinary English, but so are a lot of other things that we nonetheless universally acknowledge as accurately describing the real world. For example, continuous probability. As you know, the probability of any single point on a continuous distribution is zero. But that's probably about as hard to get one's head around, when we try to map it onto the "real world," as quantum mechanics is. The same can be said of most calculus. Infinite series? That sounds like crazy talk -- the claim that you can add up increasingly smaller numbers -- forever -- and come up with a determinate answer only makes sense in the language of math, not in English. But it's true nonetheless, and the stuff it gives us, like differential equations, are the only tools we have to understand huge parts of the observable real world. So I guess I'm having trouble understanding how Paul and Mary's status as in or not-in the room calls into doubt the real-world descriptiveness of the same claims made not with respect to Paul and Mary but with respect to electrons and quarks.

Actually, I'd like to offer the calculus thing as a counter-example to the claim that nothing is both internally consistent and rationally exportable. Leaving aside Godel's incompleteness theorem (since the point at which it operates is, to my limited understanding, far outside the normal realm of applied math), isn't math itself both internally consistent and rationally exportable? Internally consistent is a given (it's axiomatic and deductive), and rationally exportable is shown empirically by the fact that the vast majority of academic disciplines work outside the humanities is conducted in its language. That language has been shown to be superior to English in accurately describing the real world.

I'd also like to question the distinction between recognizing a fact and figuring it out. It seems like known truths from one discipline can impact another discipline without the first discipline being able to figure out why. Going a little more mundane than quantum mechanics -- let's suppose that neurobiologists know that stimulating X area of the brain produces a murderous reaction, and they also know that there are some common environmental factors that stimulate the murder area. But they don't know why the murder area works. Isn't the brute fact of the murder area something that will have a lot to say to legal scholarship, as well as psychology, political science, sociology, ecology, and at least a dozen other disciplines besides?

Posted by: Paul Gowder | Dec 13, 2006 7:49:59 PM

Computational biology.

Posted by: James Grimmelmann | Dec 13, 2006 7:39:57 PM

To start with your last point, which is intriguing, there might be higher dimensions where the only probabilities are 1 and 0, but there cannot be higher dimensions where circles can be squared (though they may look square). In higher dimensions, quantum mechanics could look reasonable, for all we know. (I use the
two-dimensional paper-folding example in a footnote in the Article to show how “action at a distance” can look unreasonable in two dimensions but reasonable in three.

As you said earlier, quantum effects are indeed epistemic data. As Richard Feynman said, nobody has any idea how an electron behaves differently when there are two slits present compared to one slit. But the fact is that this is exactly what electrons do.

I used these examples in the Article precisely because I am talking about discourses, not about physics. If we try to explain quantum mechanical experiments in ordinary plain English, we fail. Physicists who work in this area are pragmatists; they will tell you that they have learned to live with quantum effects, and they can predict them, but they have also learned not to try to figure out how they work. Yet it’s the figuring out that is, or is not, exportable to other discourses.

As far as quantum mechanics being “real” or not, all I was trying to say is that the word “real” does not solve the translatability problem for us. The hot dog vender and the Buddhist priest would not be able to solve their translation problem by arguing over the meaning of the word “real.” When we say that quantum mechanics is “real,” we are subconsciously visualizing quantum entities as building blocks. But they might not be building blocks at all. They might be virtual micro-reflections of macro reality, just like your image in the mirror isn’t “real” (but it is indeed realistic).

Finally, getting to your first point, I should have been clearer in saying that the claim “accurately describes the real world” applies equally to radical Marxism, theology, and quantum logic, not because the practitioners say so, but because none of them, in fact, are accurate descriptions. By “descriptions” I mean discourse-able, that is, one can use words to export the meanings. You and I agree that radical Marxism and theology are not accurate descriptions of the real world, and our only disagreement relates to quantum mechanics. But as Feynman said, quantum mechanics does not describe anything at all. Or as I said in the article, quantum logic holds that if either Paul or Mary is in the living room, nevertheless Paul is not in the living room and Mary is not in the living room. I think every qualified physicist would agree with this statement as an accurate translation of quantum logic, but then it must follow that quantum logic does not accurately describe the real world.

Posted by: Anthony D'Amato | Dec 13, 2006 6:46:50 PM

Anthony, thanks for your reply. Perhaps I did misread your argument. I understand the core of your argument to be as follows, in four parts.

1. Spinoza's claim is that quantum logic accurately describes the real world, therefore can be rationally exported to anything else that also accurately describes the real world. But Spinoza's claim proves too much, because "[e]very discipline believes it accurately describes the real world." For example, an "extreme Marxist" would believe that dialectical materialism accurately describes the real world, and "theologians believe in life after death." Those people would "latch onto the Spinozan argument to show that their own discipline... has a rational claim on external observers."

To which my answer would be "but extreme Marxism and theology do not accurately describe the real world. Quantum mechanics does." This part of your argument reduces to the claim that quantum mechanics has the same epistemic status as extreme Marxism and theology. But that is in fact to endorse radical skepticism, because the only way you can use the "but those guys think their theory accurately describes the real world too" argument is to deny that anyone who thinks their theory accurately describes the real world can be more correct than anyone else.

2. Some disciplines require an expansion [from what?] of the "real world" in order to be accurately descriptive.

My answe: But again, this is an objection that applies to theology but not to quantum mechanics: quantum mechanics claims to be verifiable by facts that we can observe and by logic we already accept, it doesn't posit possibly-inconsistent extra bits of reality. If we claim theology accurately describes the real world, we'd have to expand the real world to include heaven and hell, but if we claim theology accurately describes the real world we'd be wrong. Or, at least, unjustified. (I suppose theology could accidentally describe the real world, but it doesn't have the same epistemic status as quantum mechanics. Claiming it does amounts to radical skepticism about quantum mechanics again.)

3. Quantum mechanics might not be real because we can only observe it indirectly.

My answer: again this reduces to radical skepticism: much of what we observe may only be "illusory or virtual." Why should our observations of the effects of quantum mechanics be entitled to any less epistemic status than our observations of the effects of (say) distant astronomical events, such as light reaching our telescopes? Science works by observing data and figuring out what that data is consistent with, not by directly observing (is there even such a thing as direct observation) an event. Consider the results of the COBE mission, for example, which found a level of radiation dispersion consistent with the big bang. Is that just an "approximation?" Sure. Does it accurately reflect the universe? As close as we can get.

4. There might be higher dimensions where it's not consistent, or where it would appear inconsistent to us.

My reply: If this is true about quantum mechanics, it's true about everything. Your argument itself seems to proves too much. There might be higher dimensions where the laws of logic don't apply, or where circles are square, or where the only probabilities are 1 and 0. But once we rule out this kind of universally applicable positing, we're left with this: to the best of our knowledge quantum logic accurately describes the world and is internally consistent, therefore to the best of our knowledge, it's rationally exportable.

Posted by: Paul Gowder | Dec 13, 2006 6:02:14 PM

I tried very hard to make it clear that I agreed with Spinoza; I only claimed that his argument proved too much. I don't know how Paul Gowder gets radical skepticism out of it. In fact, I suspect that radical skepticism is incoherent. However, when I am mis-read, my first thought is that I failed to make myself clear, as indeed I may have in this case.

Posted by: Anthony D'Amato | Dec 13, 2006 2:42:15 PM

It's also interesting that the most interesting part of his argument (the alleged formal proof that no discipline can be both internally coherent and rationally exportable) appears to critically depend on the claim that we can't really know that quantum physics describes the real world. This is roughly pg. 38-43 on the text, not the pdf. His argument (contra Spinoza) seems to be "assume radical skepticism is true, then quantum physics might not describe the real world, therefore it can't falsify my theory by being both internally coherent and rationally exportable." To which my answer is "assume radical skepticism is true, then there's nothing left to say at all."

Posted by: Paul Gowder | Dec 13, 2006 2:13:28 PM

Isn’t it hilarious that an argument against interdisciplinary work is illustrated with the complaint that not enough people know esoteric bits of legal history! Indeed. How can a person be a competent attorney if he can’t recite a set of random factoids about the fifteenth-century England!

Posted by: Kate Litvak | Dec 13, 2006 1:41:43 PM

Readers who missed it, may also be interested in the discussion initiated by Larry Solum (at his Legal Theory Blog) and continued at other law blogs (linked at his post): 'Interdisciplinary Ignorance and the Academics of the Future,' http://lsolum.typepad.com/legaltheory/2006/10/interdisciplina.html

Posted by: Patrick S. O'Donnell | Dec 13, 2006 11:04:14 AM

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