Wednesday, January 16, 2008
Why the Interdisciplinary Movement in Legal Academia Might be a Bad Idea (For Most Law Schools)
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.
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.
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.
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..... ;-)
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).
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