PrawfsBlawg

ABF Research on Display at LSA

In my previous post, I provided a broad overview of what the ABF is, namely, a research institute dedicated to the empirical and interdisciplinary study of law, legal institutions, and legal processes. In this post, I was planning to describe some of the ABF’s hallmark research and current projects. But, for those who are attending the Law & Society Association’s annual conference in NOLA, an even better way to learn about ABF research is to attend one of the many panels and events that include ABF scholars. Let me mention a few.

Since its founding in 1952, ABF scholars have been studying nearly all aspects of the legal profession. Among the most well-known early studies, the work on Chicago lawyers led by Jack Heniz has become a canonical part of the socio-legal literature on the legal profession. The ABF dedicated an issue of our 2012 newsletter “Researching Law” to Jack’s scholarship.

In recent years, we’ve followed this research tradition with one of our best known projects: “After the JD” (AJD). This bold and ambitious project has been following the career trajectories of a cohort of roughly 5,000 lawyers from the class of 2000. This longitudinal study has gathered a tremendous amount of quantitative and qualitative data on legal careers, with some fascinating findings about career satisfaction and the stubborn persistence of inequalities within the profession. For those who are attending the LSA conference, you can learn more about the AJD study at a panel on Sat. morning (8:15 in Marriot Salon H-G, 3^rd Floor) on “Longitudinal Studies of Lawyers’ Careers.”

Throughout its existence the ABF has had strong ties to the LSA and the broader socio-legal community. That connection is also on display at this year’s conference, as we celebrate the 50^th anniversary of the LSA’s flagship journal, Law & Society Review. There are two panels on the journal, one with past editors which includes Shari Diamond (Northwestern Law/ABF) held on Friday afternoon (2:45 in Marriott 41^st Floor, St. Charles Room), and a second panel immediately afterwards on the shifting field that the journal represents with ABF Research Professor Terry Halliday, and ABF Faculty Fellow Sida Liu.

Last but not least, the Life of the Law podcast will be hosting what is sure to be an entertaining and riveting session on “LIVE LAW New Orleans - Living My Scholarship” (ticketed event on Friday night) that is chocked full of speakers with ABF connections.

Next week, I’ll circle back to other ABF research that isn’t on in display at LSA but that should be of great interest to PrawfsBlawg readers.

Reviving the Research Canons: What Every Law Prof Needs to Have Read

Mike Madison has a really nice piece out entitled "Lost Classics of Intellectual Property Law."  In it, he chides legal scholarship for failing to pay enough attention to older pieces that have come before and have laid the foundation for the discipline.  His essay seeks to address this problem by setting out those "classics" that need to read, understood, and cited to provide "better and more consistent acknowledgement of earlier work."  The article is actually a compilation of his earlier blog posts, including a 2007 self-described "rant" against the failure of IP scholars to understand the background literature in their field.  Talking about presentations at a working-papers conference, Madison said: "By far the biggest flaw in presentations and papers by junior IP scholars (and sometimes by more senior IP scholars) was and is their evident ignorance of earlier work.  And not just or even work published within the last year or last five years; I’m thinking of the fact that a lot of foundational work published ten years ago or earlier remains significant today."

The new essay called to mind a project we had at Prawfs eight (!) years ago called the "Research Canons" project.  The effort was similar to Madison's -- to compile lists of the foundational works in the legal sub-fields for use by scholars in the area, particularly junior ones.  At the completion of our two-month run, thanks to help from a lot of folks, we ended up with entries for 42 subject areas.  We had 220 comments and links from 18 fellow bloggers supporting the endeavor.  You can find a list of the subject areas, with links to the individual posts, here.

At the end of the Canons run, I expressed hope that the canons could serve as a continuing resource.  However, I also recognized that "[a] weakness of blogs posts is that they seem to have a short shelf-life: once a post is more than a day old, it can be forgotten."  I don't know whether folks continue to check out the Canons, but I suspect that they have been largely forgotten.  So it seems like a good time to revive the project, eight years down the road, and think again about those books, articles, and chapters that are canonical -- that everyone in the discipline should have read.

So this post is intended as an announcement for the project and a request for feedback.  What's the best way to proceed?  I'm planning on having individual posts for individual subjects, as before.  But this time, I'm thinking of asking for the following:

• Classic Canons.  The pieces that form the foundation for the discipline.
• Forgotten Canons. The pieces that have not gotten the attention they deserve.
• New Canons.  The pieces from the last decade that deserve canonical status.

Let me know what you think of the project, whether the old one was helpful, and what we can do this time to make it better.

What Commons Have in Common

Thanks to Dan and the Prawfs crew for having me! Blogging here is a nice distraction from the Red Sox late-season collapse.

I thought I'd start with a riddle: what do roller derby, windsurfing, SourceForge, and GalaxyZoo have in common?

Last week, NYU Law School hosted Convening Cultural Commons, a two-day workshop intended to accelerate the work on information commons begun by Carol Rose, Elinor Ostrom, and Mike Madison / Kathy Strandburg / Brett Frischmann. All four of the above were presented as case studies (by Dave Fagundes, Sonali Shah, Charles Schweik, and Mike Madison, respectively). Elinor Ostrom gave the keynote address, and sat in on most of the presentations. It's exciting stuff: Mike, Kathy, and Brett have worked hard to adapt Ostrom's Institutional Analysis and Development framework to analysis of information commons such as Wikipedia, the Associated Press, and jambands. Yet, there was one looming issue that the conferees couldn't resolve: what, exactly, is a commons?

The short answer is: no one knows. Ostrom's work counsels a bottom-up, accretive way to answer this question. Over time, with enough case studies, the boundaries of what constitutes a "commons" become clear. So, the conventional answer, and one supported by a lot of folks at the NYU conference, is to go forth and, in the spirit of Clifford Geertz, engage in collection and thick description of things that look like, or might be, commons.

As an outsider to the field, I think that's a mistake.

What commons research in law (and allied disciplines) needs is some theories of the middle range. There is no Platonic or canonical commons out there. Instead, there are a number of dimensions along which a particular set of information can be measured, and which make it more or less "commons-like." Let me suggest a few as food for thought:

1. Barriers to access - some information, like Wikipedia, is available to all comers; other data, like pooled patents, are only available to members of the club. The lower the barriers to access, the more commons-like a resource is. 
2. State role in management - government may be involved in managing resources directly (for example, data in the National Practitioner Data Bank), indirectly (for example, via intellectual property laws), or not at all. I think a resource is more commons-like as it is less managed by the state.
3. Ability to privatize - information resources are more and less subject to privatization. Information in the public domain, such as Shakespeare's plays, cannot be privatized - no one can assert rights over them (at least, not under American copyright law). Some information commons protected by IP law cannot be privatized, such as software developed under the GPL, and some can be, such as software developed under the Apache License. The greater the ability to privatize, I'd argue, the less commons-like.
4. Depletability - classic commons resources (such as fisheries or grazing land) are subject to depletion. Information resources can be depleted, though depletion here may come more in the form of congestion, as Yochai Benkler argues. Internet infrastructure is somewhat subject to depletion, while ideas or prices are not. The greater the risk of depletion,the less commons-like.

Finally, why do we care about the commons? I think that commons studies are a reaction to the IP wars: they are a form of resistance to IP maximalism. By showing that information commons are not only ubiquitous, but vital to innovation and even a market economy, legal scholars can offer a principled means of arguing against ever-increasing IP rights. That makes studying these resources - and, hopefully, putting forward testable theories about what are and are not attributes of a commons - vital to enlightened policymaking.

(Cross-posted to Info/Law.)

Book List for New Law Professors

What books would you recommend to new law professors? Perhaps we can create a list in the comments.

Here is the thing. If you are a new professor, you will have no trouble packing your bookshelves with books. Free review copies of casebooks from the big publishers can fill up your office in no time. But what should you be filling your bookshelves with?

As a relatively newish prof (in my third year of full-time teaching), I've found a few books to suggest for the list. I suppose some people may have suggestions for books about teaching. I'm curious to hear those. But my suggestions, below, are substantive. These are the books I should have bought the first day I decided I would become an academic. They are resources for the beginning scholar looking to load up on the sort of law-professory knowledge that's good to have no matter what your subject you teach.

A History of American Law by Lawrence M. Friedman. This book is eminently readable, and it is broken down into highly digestible little sections. Each section is a brief treatment of a certain subject over a certain period of history. Care to spend a few minutes learning about divorce law in the 1800s? Friedman has you covered. His book is a ready reference with a wealth of historical context for almost any course you could teach. 

The Transformation of American Law 1780-1860 and The Transformation of American Law 1870-1960 by Morton J. Horwitz. This two-volume treatment of the story of American law is not easy-breezy reading like Friedman's book. But it is rewarding. In some places, I have found almost every sentence to be highly illuminating in its own right. Wonderful stuff. 

The Canon of American Legal Thought, edited by David Kennedy and William W. Fisher III.

Law school is famously said to be about teaching law students to think like lawyers. This is the book for the course that teaches law students to think like legal scholars. It is a compilation of canonical law review articles – sort of the greatest hits in legal scholarship. Here you can read seminal works in legal realism, law and economics, critical legal studies, and more.

The Anglo-American Legal Heritage by Daniel R. Coquillette. Taking on an enormous swath of history, this book traces the roots of American law much farther back than the books listed above. It covers a little of Rome and a lot of Old England, and it brings all of it up to the present. It is also chock full of wonderful illustrations. I've never met anyone who had so much history instantly at his command as Coquillette. What he's put down on paper here is a treasure. Also distinguishing this book from those listed above is its binding. In hardback with gold lettering on a regal red spine, it will look great in your office.

I am reading all of the above books in bits and pieces -- which is how I like to tackle books of this sort. Thus, I can't say I've read them cover to cover. But I can say I am tremendously glad to have found them to get lost in occasionally. For the new law professor, I can confidently pronounce them to be value-packed bargains. 

What else should be on the list?

(And if you like reading lists, see the many PrawfsBlawg posts under the category of Research Canons.)

What is the Future of Empirical Legal Scholarship?

First, thanks to Dan and everyone else at Prawsblog for inviting me to post here this month. I'm really looking forward to it.

I found Jonathan Simon's recent posts about the future of empirical legal scholarship quite interesting. On the one hand, as someone in the ELS field, I found his general optimism about its future uplifting. But I'm not sure I share it, although my concern is more internal to the field itself than external. I'm going to be writing about this a lot this month, so I thought I'd use my first post to just lay out my basic concerns.

Jonathan focuses on trends outside of ELS: cultural and attitudinal shifts within the law as a whole, and more global changes in, say, economic conditions. And at one level I think he is right--the decreased cost of empirical work, the PhD-ification of the law, the general quantitative/actuarial turn we have witnessed over the past few decades all suggest ELS is here to stay. But there are deep internal problems not just with ELS, but with the empirical social sciences more generally, that threaten their future. I will just touch on the major points here, and I will return to all of these issues in the days ahead.

To appreciate the problem, it is first necessary to note a major technological revolution that has taken place during the past three decades. The rise of the computer cannot be overstated. Empirical work that I can do in ten minutes sitting at my desk would have been breathtakingly hard to do twenty-five years ago and literally impossible fifty years ago. The advances have been both in terms of hardware (computing power and storage) and software (user-friendly statistics packages). The result is that anyone can do empirical work today. This is not necessarily a good thing.

So what are the problems we face?

1. An explosion in empirical work. More empirical work is, at some level, a good thing: how can we decide what the best policy is without data? But the explosion in output has been matched by an explosion in the variation in quality (partly because user-friendly software allows people with little training to design empirical projects). The good work has never been better, and the bad work has never been worse. It could very well be that average quality has declined. Some of the bad work comes from honest errors, but some of it comes from cynical manipulation.

2. A bad philosophy of science. Social scientists cling to the idea that we are following in the footsteps of Sir Karl Popper, proposing hypotheses and then rejecting them. We are not. We never have. This is clear in any empirical paper: once the analyst calculates the point estimate, he draws implications from it ("My coefficient of 0.4 implies that a 1% increase in rainfall in Mongolia leads to a 0.4% increase in drug arrests in Brooklyn"). This is not falsification, which only allows him to say "I have rejected 0%." Social science theory cannot produce the type of precise numerical hypothesis that falsification demands. We are trying to estimate an effect, which is inductive.

3. Limited tools for dealing with induction. Induction requires an overview of an entire empirical literature. Fields like medicine and epidemiology have started to develop rigorous methods for drawing these types of inferences. As far as I can tell, there has been no work in this direction in the social sciences, including ELS, of any sort. This is partly the result of Problem 2: such overviews would be unnecessary were we actually in a falsificationist world, since all it takes is one black swan to refute the hypothesis that all swans are white.

As a result of these three problems, we produce empirical knowledge quite poorly. To reuse a joke I've made before and will likely make again at least a dozen times this month, Newton's Third Law roughly holds: for every empirical finding there is an opposite (though not necessarily equal) finding. 

With more and more studies coming down the pike, and with little to no work being done to figure out how to separate the wheat from the chaff, ELS could defeat itself. If it is possible to find any result in the literature and no way to separate out what is credible and what is not, empirical research becomes effectively useless. (This only exacerbates the problem identified by Don Braman, Dan Kahan and others that people choose the results that align with their prior beliefs rather than adjusting these beliefs in light of new data.)

So what is the solution? Empirical research in the social sciences needs to adopt a more evidence-based approach. We need to develop a clear definition of what constitutes "good" and "bad" methodological design, and we have to create objective guidelines to make these assessments. We have to abolish string cites, especially of the "on the one hand, on the other hand" type, and replace them with rigorous systematic reviews of the literature.

Of course, these guidelines and reviews are challenging to develop for the methodologically straight-forward randomized clinical trial that medicine relies on. In the social sciences, which are often forced to use observational data, the challenge will be all the greater. But, as I'll argue later this month, the rewards will be all the greater as well.

The use of systematic reviews is particularly important in the law, for at least reasons:

1. Inadequate screening. Peer review is no panacea by any means, but it provides a good front line of defense against bad empirical work. We lack that protection in the law. There are some peer reviewed journals, but not many. And the form of peer review that Matt Bodie talked about for law reviews recently isn't enough. The risk of bad work slipping through is great.

The diversity of law school faculties, usually a strength, is here a potential problem. Even theoretical economists have several years of statistics, so everyone who reads an economics journal has the tools to identify a wide range of errors. But many members of law school faculties have little to no statistical training, making it harder for them to know which studies to dismiss as flawed.

2. Growing importance of empirical evidence. Courts rely on empirical evidence more and more. And while disgust with how complex scientific evidence is used in the courtroom has been with us since the 1700s if not earlier, the problem is only going to grow substantially worse in the years ahead. Neither Daubert nor Frye are capable of handling the evidentiary demands that courts increasingly face.

Given that my goal here was just to touch on what I want to talk about in the weeks to come, I think I'll stop here. This is an issue I've been thinking about for a while now, and I am looking forward to seeing people's thoughts this.

Books All Law Professors Should Read - the PrawfsBlawg Research Canons Project

I had a short-lived post here asking readers to list books and articles that all law professors should (have) read. Dave Hoffman (Temple Law) pointed out that Prawfs Blawg has already done this in its "Research Canons Project" that Matt Bodie started back in September, 2006. Ah, the joys - and surprises - of "preemption." (Thank you, Dave!)  Anyway, if you were ever wondering about a general canon for all law professors as well as canons for individual subjects, as I was, your answers are here and here.  I believe the project continues ...

I was thinking of turning this post into a request for readers' preemption stories, but I think I'll check to make sure no one's done that already ...

Continuing the Research Canons Project

We've reached the end of our research canons categories.  Overall we have 42 categories covering the primary areas of research for legal scholars.  The initial post, which now includes links to all of the categories, is here.  The Prawfsblawg index is here. 

We are extremely grateful to those of you who contributed to this project.  Thus far we have had 220 comments, as well as links from fellow blawgers such as Truth on the Market, the Volokh Conspiracy, Opinio Juris, Environmental Law Prof Blog, PropertyProf Blog, Workplace Prof Blog, Tax Prof Blog, Trial Ad Notes,  Wills, Trusts & Estates Prof Blog, Fire of Genius, Patently-O, Unincorporated Business Law Prof Blog,  CrimProf Blog, Concurring Opinions, Heafey Headnotes, Legal Research and Writing, the Legal Ethics Forum, and the Legal Profession Blog.  (Let me know if I missed you.)  Special thanks to Patrick S. O'Donnell, who has contributed his quite extensive bibliographies on many of the categories for this project.

But this is not the "end" of the canons project.  There are a few categories that have yet to get an entry: Trusts & Estates, Securities Regulation, and Dispute Resolution.  Several other categories just have one entry, and every category could use additional commentary or input.  If you have found this project valuable, perhaps you could take some time to suggest a book or article that has served as a "canon" for your research.

I hope that this project will continue to serve as a resource on into the future.  A weakness of blogs posts is that they seem to have a short shelf-life: once a post is more than a day old, it can be forgotten.  But that need not be the case.  With continued input, the Research Canons project can continue to serve as a place for suggestions, discussion, and debate about the most important works in our various fields of endeavor.

Thanks again for your help.

Research Canons: Comparative Law

Our next subject matter for the research canons project is Comparative Law.  (See here for a discussion of the research canons project.)  Please comment on the books and articles that are essential to a new academic in the field.

This is our last installment.  We'll have a wrap-up of the canons project next week.

Update: Patrick O'Donnell has contributed his extensive bibliography here.

Research Canons: Conflict of Laws

Our next subject matter for the research canons project is Conflict of Laws.  (See here for a discussion of the research canons project.)  Please comment on the books and articles that are essential to a new academic in the field.

This is our (tentative) last installment.  If we've missed a particular category, let us know -- we'll try to correct the omission tomorrow.

Research Canons: Trusts & Estates

Our next subject matter for the research canons project is Trusts and Estates.  (See here for a discussion of the research canons project.)  Please comment on the books and articles that are essential to a new academic in the field.

Research Canons: Tax

Our next subject matter for the research canons project is Tax.  (See here for a discussion of the research canons project.)  Please comment on the books and articles that are essential to a new academic in the field.

"Tax" is obviously a category with a number of subcategories.  You may wish to break out your suggestions by subcategory as appropriate.

UPDATE: An 2003 blog effort by Vic Fleischer to define the tax canons can be found here.

Research Canons: Securities Regulation

Our next subject matter for the research canons project is Securities Regulation.  (See here for a discussion of the research canons project.)  Please comment on the books and articles that are essential to a new academic in the field.

Research Canons: Local Government Law

Our next subject matter for the research canons project is Local Government Law.  (See here for a discussion of the research canons project.)  Please comment on the books and articles that are essential to a new academic in the field.

Research Canons: Legislation/Statutory Interpretation

Our next subject matter for the research canons project is Legislation/Statutory Interpretation.  (See here for a discussion of the research canons project.)  Please comment on the books and articles that are essential to a new academic in the field.

Research Canons: Legal History

Our next subject matter for the research canons project is Legal History.  (See here for a discussion of the research canons project.)  Please comment on the books and articles that are essential to a new academic in the field.  You may want to discuss the journals (outside of law reviews) that budding legal historians should keep an eye on as well.

Research Canons: Legal Ethics/Professional Responsibility

Also today we are discussing Legal Ethics/Professional Responsibility.  (See here for a discussion of the research canons project.)  Please comment on the books and articles that are essential to a new academic doing work in the field.

Research Canons: Law and Literature

Also today we are discussing Law and Literature.  (See here for a discussion of the research canons project.)  Please comment on the books and articles that are essential to a new academic doing work in the field.  Fiction and non-fiction suggestions welcome.

UPDATE: Patrick O'Donnell has contributed his bibliography here.

Research Canons: Law and Race Relations

Our next subject matter for the research canons project is Law and Race Relations.  (See here for a discussion of the research canons project.)  Please comment on the books and articles that are essential to a new academic in the field.

Research Canons: Legal Research & Writing

Our next subject matters for the research canons project are Legal Research and Legal Writing.  (See here for a discussion of the research canons project.)  Please comment on the books and articles that are essential to a new academic doing work in these areas.

One commenter noted that these should be separate fields.  I have grouped them together based on the usual course designation, but the commenter is surely correct.  In the comments, you may want to address how these two fields interact and how they do not.

Research Canons: Law & Philosophy

Our next subject matter for the research canons project is Law & Philosophy.  (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.)  Please comment on the books and articles that are essential to a new academic in the field.

Since there are different subfields of philosophy, please specify to whom certain works would be canonical.

Patrick O'Donnell has contributed a very extensive bibliography, downloadable here. 

UPDATE: Larry Solum's Top Ten Contemporary Jurisprudence Books are here.  The "Leiter Top 10 Books in Jurisprudence" can be found here. 

Research Canons: Law & Economics

Our next subject matter for the research canons project is Law & Economics.  (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.)  Please comment on the books and articles that are essential to a new academic in the field.

One question to address: to what extent is law and economics a field, rather than a methodology that informs other subject areas (contracts, corporate law, etc.)?

Research Canons: International Law

Our next subject matter for the research canons project is International Law.  (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.)  Please comment on the books and articles that are essential to a new academic in the field.

Patrick O'Donnell has contributed a very extensive bibliography, downloadable here.

A post by Duncan Hollis at Opinio Juris  on canonical international law cases can be found here.

UPDATE: In addition to his comments below, Peter Spiro's thoughts on an IL canon can also be found here.

Research Canons: Intellectual Property

Our next subject matter for the research canons project is Intellectual Property.  (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.)  Please comment on the books and articles that are essential to a new academic in the field.

It might be helpful to discuss whether there are separate works for copyright, trademark, and patent law, or whether there are certain books and articles that cut across the three subfields.

Research Canons: Immigration and Naturalization Law

Our next subject matter for the research canons project is Immigration and Naturalization Law.  (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.)  Please comment on the books and articles that are essential to a new academic in the field.

Research Canons: Human Rights Law

Our next subject matter for the research canons project is Human Rights Law.  (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.)  Please comment on the books and articles that are essential to a new academic in the field.

Patrick O'Donnell has kindly contributed his basic bibliography. The document can be downloaded here.

Research Canons: Health Law

Our next subject matter for the research canons project is Health Law.  (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.)  Please comment on the books and articles that are essential to a new academic in the field.

Patrick O'Donnell has kindly contributed his basic bibliography. The document can be downloaded here.

Research Canons: Federal Courts & Civil Rights Law

Our next subject matters for the research canons project are Federal Courts and Civil Rights Law.  (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.)  Please comment on the books and articles that are essential to a new academic in these fields.

Research Canons: Family Law and Children & the Law

Our next subject matter for the research canons project is Family Law and Children & the Law.  (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.)  Please comment on the books and articles that are essential to a new academic in these fields.

Research Canons: Environmental Law

Our next subject matter for the research canons project is Environmental Law.  (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.)  Please comment on the books and articles that are essential to a new academic in the field.

Research Canons: Feminist Legal Theory

Our next subject matter for the research canons project is Feminist Legal Theory.  (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.)  Please comment on the books and articles that are essential to a new academic in the field.

Research Canons: Election Law

Our next subject matter for the research canons project is Election Law.  (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.)  Please comment on the books and articles that are essential to a new academic in the field.

Research Canons: Education Law

Our next subject matter for the research canons project is Education Law.  (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.)  Please comment on the books and articles that are essential to a new academic in the field.

Research Canons: Energy Law

Our next subject matter for the research canons project is Energy Law.  (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.)  Please comment on the books and articles that are essential to a new academic in the field.  It might be interesting to discuss what other fields are the primary contributors to energy law: ad law, property, etc.

Canons of Legal Thought and Methodology: Structuring a Law Grad Doctoral Seminar

This Fall, the Graduate program at Harvard Law School introduced for the first time a first year doctoral Seminar in Legal Theory and Methodology. The idea is to provide students who are just beginning their dissertation work foundations in canons of legal thought. The structure, organization and content of the seminar has generated quite a bit of debate among graduate students and participating faculty.  (A copy of the syllabus is available here, and is reprinted below.)

The seminar creators describe the selection of the readings as following: “The law is one, and perhaps the primary, terrain where two main projects of modern social thought intersect: 1)  the positive (descriptive-interpretive-explanatory-predictive) enterprise of the social sciences (sociology, anthropology, history, social psychology, political science and economics) of understanding, explaining, and/or predicting social phenomena; and 2) the normative enterprise of ethical and political philosophy of evaluating (justifying or criticizing) and/or prescribing social action. This conception of law and legal scholarship is, of course, one among many possibilities.  In particular, it is in some tension with rival perspectives that focus in varying ways on the internal form, autonomy, or systematicity of law.  Among the major approaches of this sort would be analytical jurisprudence or “philosophy of law,” law as aesthetics/humanities, and internalist-doctrinal legal scholarship.  The themes and readings would, no doubt, have been considerably different if one of the perspectives guiding these approaches had been adopted. The readings are structured around the following premise:  In the early twentieth century, a group of American legal scholars, economists, and philosophers (respectively, Legal Realists, Institutional Economists, and Pragmatists) developed three major challenges to contemporary assumptions about law:

(1)   A critique of legal reasoning that pointed out various circularities in common moves of legal reasoning and showed the existence of numerous “gaps, conflicts and ambiguities” when non-circular moves were applied to the formal legal materials (precedents, statutes, constitutional provisions, higher-order concepts, and general policies) that were available to, and formally cited by, judges and other legal reasoners when confronting a fact pattern in a case or legal question (the two critiques, of circularity and of gaps, conflicts, ambiguities, are sometimes referred to as strong and weak “abuse of deduction” critiques);

(2)   A critique of many conceptual or formal propositions (not just of law “on the books,” but also “arm-chair” philosophy and abstract economics) as a-contextual, and inadequate in light of empirical knowledge; and

(3)   A social theory that combined the first two sets of critiques with insights into the socio-legal shaping of the “private sphere” to culminate in a critique of the following distinctions central to liberal political, economic, and philosophical thought:  public/private, state/market, and act/omission (as well as, some have argued, kernels of methodological critiques of strong observer/participant, fact/value and observation/theory distinctions).

The guiding idea for the seminar is that American legal thought today can be seen as responding, in various ways (1) to the insights and challenges of the Legal Realists on the one hand, and  (2) to parallel or divergent developments in various adjacent disciplines (key disciplines being neoclassical, behavioral, and new institutional economics, post-positivist analytical philosophy, liberal political philosophy, critical theory, and intellectual history), on the other.  Thus, each of the various “schools” of legal thought that remain relatively dominant today can be seen to involve:

(1)   A theory of law, understood here primarily in the senses either of:

a.       an analytical (conceptual and perhaps empirical) theory of what is “law”; or

b.      a theory of how judges do and should decide cases, meaning therefore both

    i.       a positive-interpretive account of legal reasoning; and

    ii. a normative theory of legal argument and decision, one usually backing into a political philosophy (that typically centers on analysis of the office of the judiciary in an at least formally democratic society, and thus that also implies a sociology);

(2)   A background social theory that addresses two different questions:
a.       an account of what are the significant social stakes of legal decisions and norms; and
b.      a more general social-theoretical framing of the interplay between individual agency (of both the authors and subjects of law) and social contexts. 

Below is the Proposed Syllabus. I would be interested in hearing reactions to its content and structure.

I.  Setting the Stage: the Legal-Realist Critiques of Legal Reasoning & of     the Public/Private Distinction

Class one: an historical-sociological overview of the intellectual/legal-theoretical aspects of the key themes of Legal Realism
Class two:  an analytical exploration of the key reasoning/analytics of Legal Realism


1a. The Critique of Legal Reasoning as Under-determinate
Holmes, Privilege, Malice & Intent (1894) (c.f. opinion in Vegelahn 1896)
Holmes, The Path of the Law (1897) (c.f. dissent in Lochner 1905)

Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning (1913)

Felix Cohen, Transcendental Nonsense and the Functional Approach (1935)
Karl Llewellyn, Leeways of Precedents in The Common Law Tradition (1960)
Karl Llewellyn, Canons on Statutes in The Common Law Tradition (1960)

1b. The Law-in-Action Critique of Law-on-Books
Holmes, The Common Law (1881) (excerpt)

Brandeis brief in Muller v. Oregon (1908)
Roscoe Pound, Liberty of Contract (1909)
Roscoe Pound, Law in Books and Law in Action (1910)

Walter W. Cook, Scientific Method and the Law (1927)
Karl Llewellyn, A Realistic Jurisprudence – The Next Step (1930)
Fuller and Purdue, The Reliance Interest in Contract Damages (1936-1937)

2. The Critique of the Public/Private Distinction
Robert Hale, Coercion and Distribution in a Supposedly Non-Coercive State (1923)
Robert Hale, Bargaining, Duress and Liberty (1943)
Morris Cohen, Property and Sovereignty (1927)


II.Another Stage: Analytical Jurisprudence or the “Philosophy of Law” and Its Relation to Legal Realism and to Social Theory

Class three:

3a. Philosophy of Law: the “What is (the “Nature” of) Law” debate
Legal Positivism:
            HLA Hart, The Concept of Law (1961) (excerpts)
Joseph Raz, The Authority of Law (1979) (excerpts)
    Or_____, Practical Reason and Norms (1994) (excerpts)
Natural Law:
John Finnis, Natural Law and Natural Rights (1980) (excerpts)
Dworkin’s “Third” theory:
            Ronald Dworkin, Law’s Empire(1986) (excerpts)


Class four:

3b. The Relationship of Analytical Jurisprudence to Legal Realism and to Social Theory
Brian Leiter, Realism, Hard Positivism, and the Limits of Conceptual Analysis (1998)   
    Or _____, Legal Realism and Legal Positivism Reconsidered, Ethics (2001)
         _____, Naturalism and Naturalized Jurisprudence (1998)
                                           
Brian Tamanaha, Realistic Socio-Legal Theory (1997) (chs. 2, 4-5)
      Or________, A General Jurisprudence of Law and Society (2001) (chs. 2, 6)


III.The Role of Courts in a Liberal Democracy after Realism

Class five:

Constitutional Rights Adjudication & Liberal Political Theory

4a. Legal Theory: Defenses of Rights-Based Adjudication
Analytical debate (is it possible?):
Ronald Dworkin, Hard Cases (1975)
Or _____, Law’s Empire (1986)
Mark Tushnet, Following the Rules Laid-Down: A Critique of Interpretivism and
Neutral Principles (1983)

Normative debate (is it desirable?):
John Hart Ely, Democracy and Distrust (1980)
Laurence Tribe, Puzzling Persistence of Process-Based Constitutional Theories (1980)
Mark Tushnet, Dia-Tribe (1980)
Ronald Dworkin, Freedom’s Law (1997)
Jeremy Waldron, The Core Case Against Judicial Review (2006)

4b. Background Political Philosophy: Rights and Liberal Justice
John Rawls, A Theory of Justice (1971)
Ronald Dworkin, Taking Rights Seriously (1978)

4c. Background Political Philosophy: Liberal Rights and Republican Democracy
Frank Michelman, Law’s Republic (1987)
Jurgen Habermas, Between Facts and Norms (1996)

Class six:

Public Law Litigation as Institutional Reform

5a. Legal Theory: Judges as Social Reformers
Lewis Sargentich, Complex Enforcement (1978)
Charles F. Sabel and William H. Simon, Destabilization Rights: How Public Law
Litigation Succeeds (2004)

5b. Background Social Theory: Institutional Imagination through Escalating Routine Conflicts into Context-Transforming Opportunities
Roberto Unger, False Necessity (1987)
Or_______, Critical Legal Studies Movement (1982)


IV.Private Ordering and the Rule of Law after Realism

Class seven:

Law and Economics: Efficiency/Welfare as Solution to Common Law Under-determinacy

6a. Positive Analysis:  Legal-Institutional Analytics

Ronald Coase, The Problem of Social Cost (1960)
Guido Calabresi & Douglas Melamed, One View of the Cathedral (1971-1972)
Richard Posner, Economic Analysis of Law ([1973] 2002) (chs. 1 and 2)
(Summary: Polinsky & Shavell, Economic Analysis of Law, Palgrave (2006))
(Critique: Kennedy, Law & Economics From Perspective of CLS, Palgrave (1998))

6b. Positive Analysis:  Economic Theory
Overview:
Louis Kaplow & Steven Shavell, Microeconomics (2004)

Mainstream neoclassical theory of individuals:
Gary Becker, The Economic Approach to Human Behavior (1976) (ch. 1)
Critique:
Mark Kelman, Choice and Utility, Wisconsin L. Rev. (1979)

Mainstream behavioral theory of individuals:
Jolls, Sunstein and Thaler, Behavioral Approach to Law and Economics (1998)
Critique:
Rejoinders by Richard Posner and Mark Kelman in same issue of Stan. L. Rev.
(See generally: Cass Sunstein, ed. Behavioral Law and Economics (2000))

Mainstream theory of institutions:
            Oliver Williamson, The New Institutional Economics, J. Econ. Lit. (2001)
Critique:
            Geoffrey Hodgson, The Approach of Institutional Economics, J. Econ. Lit. (1998)

6b. Normative Analysis:  Prescriptive Theories of Adjudication & Legal Policy
First Wave:
            Richard Posner, The Ethical and Political Basis of the Efficiency Norm in 
                                       Common Law Adjudication, Hofstra Law Review (1980)
            C. Edwin Baker, Starting Points in the Economic Analysis of Law (1980)
            Ronald Dworkin, Is Wealth a Value? (1980)
            Mario Rizzo, The Mirage of Efficiency (1980)
            (See generally: 1980 Hofstra Law Review Symposium)
Second Wave:
Guido Calabresi, The Pointlessness of Pareto (1991)
Kaplow and Shavell, Why Legal System is Less Efficient than Income Tax (1994)
Kaplow and Shavell, Fairness versus Welfare: Notes on the Pareto Principle,
          Preferences and Distributive Justice (2003)
(See critiques by Joe Singer, Arthur Ripstein, Richard Fallon)

Class eight:

Critical Legal Studies: Common Law as Legitimation, Distribution, and/or Denial

7a. Law as Ideological Legitimation/Apology
Robert Gordon, New Approaches to Legal Theory (1982)
Or____, Unfreezing Legal Reality: Critical Approaches to Law (1987)

7b. Legal Reasoning as Anti-Modernist Denial
Duncan Kennedy, Form and Substance in Private Law Adjudication (1976)

7c. The Distributive Stakes of Private Law
Duncan Kennedy, Freedom and Constraint: A Critical Phenomenology (1986)
Duncan Kennedy, The Stakes of Law, or Hale and Foucault! (1991)

7d. Critiques of CLS Indeterminacy Claims¹

Lawrence Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma (1987)
Jules Coleman & Brian Leiter, Determinacy, Objectivity and Authority (1993-4)


V.Law and Society: Studies of Law and Other Social Norms in Action

Class nine:

8a. Limits of Formal Law: Supplements, Substitutes & Replacements of Legal Normativity
Stewart McCauley, Non-Contractual Relations in Business: A Preliminary Study (1963)
Sally Engle Merry, Legal Pluralism (1988)
Robert Ellickson, Order Without Law: How Neighbors Settle Disputes (1991)
Gerald Rosenberg, The Hollow Hope (1991)

8b. Law in Action: The Social Effects of Legal Normativity
Marc Galanter, Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal
Change (1974) (See also 1999 Law & Society Review Symposium)
Lewis Kornhauser & Robert Mnookin, Bargaining in the Shadow of the Law (1979)
Sally Engle Merry, Everyday Understandings of the Law in Working Class America
(1985)
Patrick Ewick & Susan Silbey, The Common Place of Law: Stories from Everyday Life
(1998)
Laura Edelman, A Law and Society Approach to Economic Rationality (2004)

Class ten:

8c. Issues of Theory and Method
Lawrence Friedman, The Law and Society Movement (1986)
Austin Sarat & Susan Silbey, Critical Traditions in Law and Society Research (1987)
David Trubek & John Esser, “Critical Empiricism” in American Legal Studies (1989)
Micheal Heise, The Importance of Being Empirical (1999)


VI.Legal History: Moving beyond Pre-Realist “Lawyers’ History”

Classes eleven and twelve:  discussions of methodology with examples from the history of property law

9. Methodological Overviews
Robert Gordon, Critical Legal Histories (1984) (legal history as social history)
William W. Fisher, Texts and Contexts (1997) (legal history as intellectual history)

10. Competing Approaches: The Case of Property

Social histories of property:
            Lawrence Friedman, A History of American Law (1973)
            Douglass C. North and R.P. Thomas, The Rise of the Western World: A New
            Economic History (1973)
            Morton Horwitz, The Transformation of American Law, 1780-1860 (1977)

Intellectual histories of property:
Charlie Donahue, The Future of the Concept of Property Predicted from its Past
(1980)
Kenneth J. Vandevelde, The New Property of the Nineteenth Century: The
Development of the Modern Concept of Property (1980)
            Gregory Alexander, Commodity and Propriety (1997)

Synthesis of social and intellectual history:
Morton Horwitz, The Progressive Transformation in the Conception of Property
in Transformation of American Law, 1870-1960 (1992)

¹ Other options here include some variation on the following more comprehensive review of this debate:  (1) Response to legal realists’ critique of legal reasoning by Hart (Concept of Law);
(2) Inadequacy of this response as discussed by Altman (Dworkin, Realism & CLS) and Leiter (Legal Realism & Legal Positivism Reconsidered);
(3) Response to legal realists’ critique by Hart & Sacks (Legal Process) and Dworkin (Hard Cases) through ratcheting up to principles and policies (rather than texts, rules, and concepts);
(4) CLS response to Legal Process and Dworkin in Kennedy (Form & Substance) and Tushnet (Following Rules Laid Down);
(5) Dworkin’s response in Law’s Empire;
(6) Non-Dworkinian/non-ratcheting response to CLS interpretation of realism by Solum and Coleman & Leiter (needed in light of inadequacy of Hartian response to legal realism); and
(7) Mature statement of CLS position by Kennedy (Freedom & Constraint) and Tushnet (Defending the Indeterminacy Thesis).

UPDATE: If you've not already done so, please check out (and contribute to) our Research Canons project.  Here is the Research Canons Archive.

Research Canons: Employment & Labor Law

Our next subject matter for the research canons project is Employment & Labor Law.  (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.)  Please comment on the books and articles that are essential to a new academic in the field.

Patrick O'Donnell has once again contributed his basic bibliography. The document can be downloaded here.

See also the discussion over at Workplace Prof Blog here.

Research Canons: Dispute Resolution

Our next subject matter for the research canons project is Dispute Resolution.  (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.)  Please comment on the books and articles that are essential to a new academic in the field.

Research Canons: Corporate Law

Our next subject matter for the research canons project is Corporate Law.  (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.)  Please comment on the books and articles that are essential to a new academic in the field.

Research Canons: Admiralty/Aviation Law

Our next subject matter for the research canons project is Admiralty and Aviation Law.  (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.)  Please comment on the books and articles that are essential to a new academic in the field.

A note on the research canons thus far

Just wanted to thank all those who have contributed to the project thus far.  At this point we have had 78 comments contributing to 12 different canons.  But we have a lot of ground left to cover.  (Here is the initial post with our list of subjects.)  Your continued input is greatly appreciated.

The Canons project is meant to be a continuing resource for junior scholars and folks going on the job market.  So if you "missed" a canon on a particular day, please do not be shy about adding a comment later on.  I hope that contributions will continue throughout the fall.

Research Canons: Commercial Law & Bankruptcy

Our next subject matter for the research canons project is Commercial Law & Bankruptcy.  (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.)  Please comment on the books and articles that are essential to a new academic in the field.  It would be helfpul to discuss whether these "two categories in one" have an overlapping literature, or whether they are completely distinct.

Research Canons: Antitrust

And, by popular demand, Antitrust.  Please comment on the books and articles that are essential to a new academic doing antitrust scholarship.  As one commenter noted: "Mainstream antitrust thinking has changed quite a bit in a relatively short period of time (since the 80's), but it can be difficult to locate the very specialized work essential to the post-Chicago canon. It's a perfect specialization for a canon, because it's very easy to miss good scholarship or have an 'original' thought that amounts to re-inventing the wheel. "  Your help in preventing this for junior folks would be greatly appreciated.

Research Canons: American Indian Law

Our next subject matter for the research canons project is American Indian Law.  (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.)  Please comment on the books and articles that are essential to a new academic in the field.

Patrick O'Donnell has kindly contributed his basic bibliography. The document can be downloaded here

Research Canons: Administrative Law

Our next subject matter for the research canons project is Administrative Law.  (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.)  Please comment on the books and articles that are essential to a new academic in the field.

Some questions for Administrative Law folks:

• What sorts of interdisciplinary work is going on in Administrative Law?
• What is the cutting edge empirical work in the area?

Research Canons: Constitutional Law

Our next subject matter for the research canons project is Constitutional Law.  (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.)  Please comment on the books and articles that are essential to a new academic in the field.

Constitutional Law is a fairly broad field.  I have added a category for Federal Courts/Civil Rights on October 4.  Beyond that, you may want to specify how your suggestions fit into the field as a whole.  New Con Law scholars may find a discussion of the different areas of study to be useful as well.  What does it mean to say that you are a Con Law scholar?

Research Canons: Evidence

Our next subject matter for the research canons project is Evidence.  (See here for a discussion of the research canons project, including categories, dates, and links to prior installments.)  Please comment on the books and articles that are essential to a new academic in the field.  In addition to listing your suggestions, you want to say a little about why the book or article is so important for new scholars.

Research Canons: Torts

Our next subject matter for the research canons project is Torts.  (See here for a discussion of the research canons project, including categories, dates, and links to prior installments.)  Please comment on the books and articles that are essential to a new academic in the field.  In addition to listing your suggestions, you want to say a little about why the book or article is so important for new scholars.

Update: Patrick O'Donnell has shared his introductory bibliography. You can download the bibliography here.

Research Canons: Property, Real Estate, and Land Use Law

Our next subject matter for the research canons project is Property, Real Estate, and Land Use Law.  (See here for a discussion of the research canons project, including categories, dates, and links to prior installments.)  Please comment on the books and articles that are essential to a new academic in the field.  In addition to listing your suggestions, you want to say a little about why the book or article is so important for new scholars.

Research Canons: Criminal Procedure

Our next subject matter for the research canons project is Criminal Procedure.  (See here for a discussion of the research canons project, including categories, dates, and links to prior installments.)  Please comment on the books and articles that are essential to a new academic in the field.  In addition to listing your suggestions, you want to say a little about why the book or article is so important for new scholars.

Research Canons: Criminal Law

Our next subject matter for the research canons project is Criminal Law.  (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.)  Please comment on the books and articles that are essential to a new academic in the field.  In addition to listing your suggestions, you want to say a little about why the book or article is so important for new scholars.

update:   Embedded is an excellent introductory bibliography for criminal law put together by one of our readers, Patrick O'Donnell

Research Canons: Contracts

Our next subject matter for the research canons project is Contracts.  (See here for a discussion of the research canons project.)  Please comment on the books and articles that are essential to a new academic in the field.  In addition, you might want to comment on what type of work is covered by "Contracts" -- is it a catch-all category? 

I said this in the previous post, but I think it bears repeating: research canons may call to mind older, classic works that provide the foundation for today's research.  However, new canons are also extremely useful -- these are the current works that are driving the debate in the field.  In fact, new canons may be more useful to new academics, since they are less likely to have seen these in law school.  It may make sense to differentiate between these in your comments.