Balkinization  

Wednesday, January 16, 2008

Why the Interdisciplinary Movement in Legal Academia Might be a Bad Idea (For Most Law Schools)

Brian Tamanaha

Interdisciplinary studies are currently the rage in legal academia. An increasing number of law schools are touting their interdisciplinary programs, which include offering courses from other academic disciplines (economics, statistics, anthropology, etc.) in the law school curriculum, creating law and social science institutes of various sorts within the law school, offering joint JD/PhD programs, and hiring JD/ PhD faculty.

It seems like an irresistible movement with the potential to transform legal academia. But based upon the historical evidence and the nature of legal practice, I’m skeptical.

First the historical evidence: this idea has been tried before with no evident success.

William Draper Lewis published a paper in 1913 entitled “The Social Sciences as the Basis of Legal Education.” Lewis argued in the paper that law should adjust to changes in society, and that lawyers and judges need training in the social sciences to properly carry out this task. He proposed “adding to the present course in the law school modern teaching in economics, sociology, history and political science …provided the course in law can be extended beyond the present limit of three years.” Lewis went on:

If I may make an attempt at a practical suggestion, let those of us who are connected with Law Schools and those who are connected with departments of Philosophy, try the experiment of conducting joint seminars open to students of law and students of the social sciences, these seminars to discuss legal theory and social ideas, or, if you prefer, the development of law as affected by economic conditions. We may not at first educate our students, but we will educate each other and perhaps lay a foundation which will result in developing a class of law teachers, and may I also suggest perhaps a class of teachers of the social sciences, better able than we with out one-sided education, to perform our respective task.


Lewis, it should be noted, had an LL.B and a PhD in economics. He was the Dean of Penn Law School for several decades (including when he gave this speech), the first Director of the American Law Institute, and an early President of the American Association of Law Schools.

If anyone was in a position to make this idea work, Draper was the person. But little came of it.

The later Legal Realists—sometimes mistakenly credited with being the initial promoters of this idea—also argued that the social sciences should be integrated into the study of law. Various reasons come to mind when we speculate about why this initiative failed—the social sciences were immature, the Legal Realists were overly optimistic about what the social sciences could deliver, or the conservative legal academy repelled this as an invasion of law by alien intruders. Perhaps all these factors contributed, although it’s hard to know.

There may be a more fundamental reason for the failure: perhaps detailed knowledge of the social sciences—anything beyond rudimentary information every educated person should possess—is irrelevant to the practice of law.

It seems evident that one can be an excellent lawyer without knowing any of this interdisciplinary stuff, while it is not obvious that learning this will make a person a better lawyer. A stronger case can be made that this information might improve the performance of judges, but a more efficient way to deliver this benefit is to set up classes (in economics, statistics, etc.) for sitting judges—programs which now exist.

Law constantly deals with every day problems through the terminology, practices, and processes of the legal tradition. It has always interacted with and absorbed surrounding social circumstances and ideas, and will continue to do so. Consider the example of law and economics, often identified as the most successful social scientific approach to law. A student can learn everything necessary about this subject by reading the casebooks in subjects that have incorporated aspects of economic analysis. Because this has been internalized within the legal discourse (to a limited degree), there is no need for a special course or program on the subject.

The social sciences, on their end, have their own orientations and concerns that do not easily translate into legal contexts. So bringing these courses and programs into the law schools does not necessarily mean they will be integrated in any real sense.

Don’t get me wrong—I am not anti-intellectual nor a legal traditionalist. My own work is immersed in the social scientific and theory literature as least as much as the legal literature. But I am an academic, not a lawyer. My job is to gather and develop knowledge about law, not to engage in the practice of law. There is no question that knowledge about law is enhanced through an interdisciplinary perspective.

I doubt, however, that the knowledge I have acquired about law would in any way improve my performance as a lawyer. As far as I know, no convincing evidence has been provided to demonstrate that “interdisciplinary studies” will help one whit in the training or performance of lawyers.

So why is this the rage?

It appears to be the latest stage in the general movement of law schools toward becoming more academic (more like institutions of learning than trainers of a profession)—it’s another step in the divorcing of legal academia from legal practice that many have observed (a phenomenon which Lewis first noted in a 1924 speech, “The Law Teaching Branch of the Profession.”). Perhaps another contributing factor is the natural tendency toward empire-building in elite law schools, which are flush with money.

If the above speculation is correct (and admittedly it is speculation), it does not suggest that the trend toward interdisciplinary studies in elite law schools is a bad idea. What it is does suggest is that we should be clear and honest about the rationales behind it, and we should also recognize that it is not necessarily a model that all law schools should emulate. Building knowledge about law is important and valuable, and bringing other disciplines into the law schools can help advance this (or at least it has that potential). But that is entirely different from the dubious proposition that interdisciplinary studies will help train better lawyers.

In a series of Balkinization posts I have raised the various worrisome implications of the increasingly distinct two universes of legal practice (corporate law and all the rest), more or less matched by the two universes of law schools (elite and all the rest)—which, by the way, I learned about from reading social scientific studies of the legal profession.

In the elite law school universe—with huge endowments and ample resources, with large faculties, with graduates who become corporate lawyers and donate more money, with graduates who become academically-oriented law school professors—the interdisciplinary movement can be justified.

In the non-elite law school universe—with schools almost entirely dependent upon tuition, with a majority of graduates who do not get corporate law jobs and only rarely become law professors—the interdisciplinary movement cannot be so easily justified.

Let me just give three reasons why it might be a bad idea for non-elite law schools. First and foremost, as argued above, there is no evidence that it will make their students better lawyers. Second, it costs a lot of money to go interdisciplinary, and (because non-elite schools are tuition driven) this money will come out of the pockets of the students. Third, their education might suffer if their faculties emulate the elite law school trend toward hiring JD/PhDs with little or no practice experience (assuming a person with some experience in the practice of law has a bit more insight to impart to students about how to be good lawyers).

Fortunately, even if their law schools do not go interdisciplinary, law students at non-elite law schools can obtain whatever benefits might accrue from interdisciplinary training without paying the cost because (given current hiring patterns) most of their professors will be graduates of elite law schools.

Annual tuition at elite law schools will likely hit $50,000 within five years. This hefty price tag (gulp!) is still a good investment for graduates of elite law schools, who are in line for lucrative (albeit life-draining) corporate law jobs. The same cannot be said for graduates of non-elite law schools. Non-elite law schools must find ways to keep their tuition down.

The bottom line of this post: the notion that interdisciplinary studies within law schools promises to improve the practice of law is an old idea backed up by little evidence. Non-elite law schools might not be serving their students well if they get caught up in this trend.

Comments:

An interesting post as usual.

I agree with the general thrust - that one can be a competent, and indeed, very good lawyer without interdisciplinary bona fides.

However, I would add this: I think the legal profession and "the law" in general would be improved if we emphasized empirical/social scientific knowledge a bit more. Too many lawyers suffer from what Tushnet has called the "lawyer as astrophysicist" mentality where we think a J.D. bestows some special knowledge or wisdom about nearly everything.
 

I agree, Calvin, although lawyers might also point out that this tendency is even more pronounced in law professors.

Brian
 

I agree with this post, although I would note that at least when I was in law school, the enthusiasm for interdisciplinary studies affected law faculty hiring more than it affected the curriculum. That is, the elite law schools looked with favor on candidates who had Ph.D.'s in addition to J.D.'s and whose scholarship focused on "law and -------." However, the students learned the same basic contracts, torts, crim. law in first year, and (most of them) learned the basic Corps I, Tax I and Con Law in second year, even though some of the professors may have been bored with the curriculum. Third year of law school is a waste anyway, so it doesn't matter if you learn Advanced Corporate Taxation or Sociological Analysis of Gender Discrimination, it's all the same.

So long as the enthusiasm for interdisciplinary studies doesn't affect the basic curriculum, but only affects faculty hiring and the contents of third year seminars, it won't matter much. If it gets the point where first year torts students at John Marshall are learning about "cheaper cost avoiders" rather than "proximate cause," that will be a problem.
 

sean:

If it gets the point where first year torts students at John Marshall are learning about "cheaper cost avoiders" rather than "proximate cause," that will be a problem.

Getting close. We read Posner's stuff in torts (in the early 90's). He's of the silly opinion that as long as you spent as much (or more) as the 'expected' damages from doing nothing, you ought to get off scott-free, even if someone does get damaged despite your 'prevention' ... and scr*w them.

Here's one danger of lawyers that pretend to have expertise (or some brilliant insight) in other areas (such as CBA here); they put on some patina of "rationality" or "scientific precision" on top of what is at base absurd logic....

Then there was the 'cross-disciplinary' work of Philip Johnson..... ;-)

Cheers,
 

I think that your statement that law schools are attempting to become more like academic educational institutions that places to teach a profession is the giveaway regarding how bad the idea is. Business schools have conducted a similar shift in teaching finance.

In the past, finance courses were taught by experienced financial professionals who came back and taught the practical skills, but the theory of finance developed about thirty years ago so that there was an academic theory of finance. Suddenly the new teachers tended to be Economics Ph.D.s who learned the theory of Finance and couldn't find an academic job in the (over populated) discipline of academic economics. The newer teachers were younger and much less experienced in finance, but were a lot more fluent in statistics and economic theory.

The students came out as less able to deal with real world finance.

Another issue from the academic side - I taught management and social science research methods. Our Dean of the School fo Business was a lawyer (used the law degree as a Ph.D. equivalent. small school and couldn't pay what it cost to get a real Ph.D.)

He wanted us to do research and publish, but being a lawyer he had no clue what social science research requires! "Research" in law may be the same word, but I can promise you - it is not the same reality as social science research, and it is not something that a lawyer can take a few courses in and pick it up. It is a very different way of thinking and acting. Most importantly the goals are very different.

From what I have observed, when a person needs a lawyer, they need somone who functions at a high level as a lawyer. They don't need a watered down economist, psychologist or sociologist. They need a lawyer. They need someone who can practice law without always going to a more experiences lawyer to make sure they aren't screwing up the simple legal stuff.

The same is true for social scientists. If a lawyer needs to use social science in a case, then the lawyer needs to know the law stuff cold, and then needs to go to a social scientist to make sure he has the social science stuff right in his specific case. A little bit of social science education is not going to permit a lawyer to safely avoid asking for expert help.

For the most part, I don't think it makes too much sense to include much social science in a law curriculum. All you will get is poor lawyers who can BS in more varied jargons that they don't understand.

But that's just my opinion, as a non-lawyer who, if I need a lawyer, is not going to hire a watered down lawyer who speaks economics. And I'll look for a lawyer who studied a lot of law, rather than a generalist who doesn't have that much interest in law.
 

Come to think of it, if there is a need for more social science in law schools, why not simply return to the older idea of a Batchelor of Laws as an alternative to other BS degrees? Isn't that what the requirement that someone have other studies before entering law school was all about? First you learn to think rationally as an academic, then you get the law training?

Has that failed? Or was it just a way of limiting law school enrollment the way Medical schools have limited med school enrollment to keep the salaries higher?
 

While I see the general point here, I should note that the study of "law" is NOT the study of "lawyering." Law is inherently a social science (it is a social construction and the grandest form of social control), and I think that legal scholarship necessarily requires a grounding in the social science.

For the sake of the students, there should certainly be a focus on practical issues in law school, with faculty who have the appropriate amount of experience. However, if serious empirical legal scholarship is not conducted in law schools, then where?
 

From another perspective, study of Law is inherently interdisciplinary...
 

Reminds me of the days when JD/MBA programs expanded into every niche and corner.

The real question is what employment is there for interdisciplinary lawyers where the added degree adds anything.

Answering that question pretty much answers the rest of the debate.
 

Another approach is to require students to study law with another discipline. In Australia most law students do double degrees (5 years full time) with business and social sciences the most popular combinations.
 

So if I can get into an "elite" school then I get to learn theory and if not then I should accept my lot as a practicing technocrat? This post makes me want to swear very brutally at you Brian.

You have to be pretty sure of your selection mechanisms and spend a lot of time in "elite" schools to consign 200 other institutions to little better than trade school status.

"Don’t get me wrong—I am not anti-intellectual nor a legal traditionalist."

You strike me as an established intellectual trying to narrow the path for those who would aspire to follow you. It isn't any of your business if I want to go learn "about law" at a school that will accept my non-pedigreed lower middle class backstory. You are right that I have no realistic chance at a law professorship even coming from the top of my class, but that is merely a function of entrenched "elite" hierarchies and... as you say, "empire building." So far I have proven a decent corporate lawyer though, and it has everything to do with what I know about life, the universe, and everything. You can believe that or not.
 

I'll try one that is a bit more constructive as well:

There is an unexplored angle in this discussion. Interdisciplinary studies, being concerned with the interaction of law with other aspects of human existence, are almost inherently more democratic, empathic, populist... while doctrinal scholarship, with its uneasy relationship to formalism, can serve as a short path to fascist "vanguard party" elitism. I find that the more time one spends immersed in real narratives of literature, psychology, or social science, the harder it is to promote a "greater good" over an otherwise obvious moral norm or plea for help.

To my mind, the law schools are choosing whether to produce citizens or technocrats. Civic virtue requires an understanding of civic culture and popular norms. One doesn't have to learn about societal reality in law school but perhaps it would be criminal to bestow a JD credential on someone who hasn't so learned. They might write a torture memo or something.
 

"the current financial situation of non-elite law schools and their students. We often talk about social justice, but a situation with serious justice implications is developing around us."

I think that social justice problem is a significant issue, overshadowed by the immediate focus. I've worked in two different firms that used law graduates as paralegals, one the editor in chief of the law review of a bottom ranked school who could not find other employment. She was bright, competent and eventually hired as an associate, but was unable to get in the door for some time. There are real issues that are being missed by most.

I should also note that it takes four to six years from graduation for most graduates to quit thinking like a law student and to start thinking like a lawyer. Something completely missing from most of these discussions is that law school does not teach anyone to think like a lawyer, instead it teaches them to think like a law student. While it appears that being taught to think like a law student qualifies one to teach law seamlessly without significant transition time, it is different from thinking like a lawyer.
 

There is a question that goes unstated in this. By what lights shall we call a lawyer good? It seems to me that the implicit understanding shared in most of the posts is that lawyering is simply a matter of technical know how. But, is that all that lawyering entails. A part of the definition of the scope of the lawyer's work in the Model Code includes the idea of lawyer as public citizen with a special concern for justice. The Carnegie Report made reference to this, suggesting that what law schools do poorly is provide education that is directly relevant to understanding the lawyer's role in society. What would it mean to teach to that goal? It would seem to be inherently interdisciplinary. That is to say, if we want to make lawyers that are not only good technocrats, but good citizens, then we need to help them achieve some understanding of the good that can be achieved by citizenship, and the particular ways that the rule of law and lawyers can serve society to achieve it (This may, incidentally lead to more satisfied lawyers).
 

There are lots of jobs in Pune and Plenty of companies are hiring fresher and experienced professionals So rush to grab your job.
 

Great blog! I really love how it is easy on my eyes and the information are well written. I am wondering how I might be notified whenever a new post has been made. I have subscribed to your rss feed which really should do the trick! Have a nice day! back-surgery.info
 

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