Law and Political Science

Mark Graber

For about a decade and a half, prominent students of public law have been criticizing the quality of legal scholarship, in particular the ways in which lawyers did and did not do empirical analysis. One criticism, most prominent in an influential law review article by Lee Epstein and Gary King in the Chicago Law Review, was that empirical analysis in law reviews tended to be shoddy, that law professors were unaware of basic principles of social science methodology. Another criticism, most prominent in Gerry Rosenberg's THE HOLLOW HOPE and perhaps my RETHINKING ABORTION, is that much legal analysis either invented convenient empirical facts or tended to deduce empirical facts from normative theories. Consider the claim that restrictions on abortion reflect the underrepresentation of women in legislatures. The claim may be true in the sense that elite women tend to be more pro-choice than elite men and elites are overrepresented in legislatures, but almost no legal work that made this claim acknowledged or even exhibited any interest in the substantial body of public opinion research indicating that women, if anything, tended to be slightly more pro-life than men.

The quality of legal scholarship has clearly improved as a result of these critiques. While the legal academy is still populated with many celebrity constitutional theorists, who would seeming rather turn down a Supreme Court appointment than cite a political scientist who studies public law (or actually stay up to date on the empirical facts underlying their theories), both the quality and quantity of law and social science conversations have improved. Political scientists regularly participate in legal conferences, and there is more engagement (as well as citation) with political science scholarship (witness recent works by Scott Powe. Michael Klarman, Jeff Rosen, Barry Friedman, Mark Tushnet, etc). Many law faculities have successfully raided political science departments, witness Mark Brandon at Vanderbilt Law, Andy Koppelman and Lee Epstein at Northwestern Law, and Kim Scheppele's stint at Penn Law. Nirvana has not yet been reached. In particular, I think there is a bit of "same old, same old," that in addition to paying closer attention to the work of a small number of senior scholars, legal scholarship would benefit by paying closer attention to such scholars as Julie Novkov, Pamela Brandwein, Jon Gould, Paul Frymer, George Lovell, Thomas Keck, Keith Bybee, and others I have no doubt forgotten. Engagement, in short, could be a lot broader. Still things are much better and the trends with respect to the legal academy are upwards.

Alas, the trends with respect to political science are clearly downwards. 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.
Posted 9:23 AM by Mark Graber [link]