Friday, June 02, 2006

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.


They say that all generations fear for the next. Mark paints a grim picture; fortunately, it's also an inaccurate one. There's a far more optimistic one that goes like this:

The trends with respect to political science are clearly upwards. Fueled in part by the behavioral and formal turns in the rest of the discipline, public law and judicial politics is beginning to return to the position of prominence within political science that it held in the first five or six decades of the last century. Junior public law scholars are not only among those in political science doing the most innovative, creative work in these veins (cf. Georg Vanberg, Gretchen Helmke, Andrew Martin, Jim Rogers, Jenna Bednar, Virginia Hettinger, Cliff Carrubba, and others I have no doubt forgotten), but that work is increasingly being recognized outside of the sub-field for both its empirical rigor and its broader theoretical importance. Much of that recent work -- along with scholarship by public law scholars as diverse as Jim Gibson, Sandra Joireman, Mike McCann, Chris Bonneau, Bob Kagan, Roy Flemming, and many others -- has been supported by external grants from competitive sources, including the National Science Foundation.

One consequence of this renaissance is that, in addition to reading intensively about interesting and important questions, many younger scholars are both encouraged and find it to their advantage to acquire the tools -- be they qualitative, quantitative, formal, or whatever -- to more rigorously theorize and analyze those questions. Moreover, external funding sources, such as NSF's Mid-Career Training Grants, encourage such intellectual development. Another result is that scholars in other areas of the discipline -- including students of Congress and legislative politics, international relations, and comparative politics, to name just a few -- are once again beginning to take seriously work done in public law. Finally, this renaissance has at least in part fueled the demand for political scientists on law faculties, as the latter's appreciation of rigorous empirical work related to the law has grown.


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The failures of the scientization of discourse are the same as those of the scientization of newspaper writing as objective journalism and of politics as polling. The point is not to have or cultivate opinions or beliefs but simply to respond to reports of the beliefs of others. This pseudo-autistic intellectualism- the idealism of the observer who pretends he does not exist- is just moral passivity in the guise of moral superiority.

The formal structural of law is predicated on the existence of bias. More than that it is predicated on active and engaged bias
Science seems to be practiced more and more by those who take it on faith that their own objectivity is unquestionable and their sensibilities irrelevent.
Such people refuse to engage either the vulgarity or the obligations democracy.

As a group they are also among the most arrogant- most purblind and intellectually empty- people I have ever met.

I agree with you Mark, in fact, I would say that there is tendency toward formalization, 'numbers crunching' and the like in the social sciences generally, meaning a narrowing of 'what counts' is not a special affliction of political science, although I admit it's rather conspicuous there. A red flag should go up whenever one finds repeated references to such adjectives as 'robust' and 'rigorous,' to empirical findings that are hallowed as 'hard numbers.' In philosophy, Hilary Putnam writes of an an earlier, analogous 'revolt against formalism' initiated by the Pragmatists: 'This revolt against formalism is not a denial of the utility of formal models in certain contexts; but it manifests itself in a sustained critique of the idea that formal models, in particular, systems of symbolic logic, rule books of inductive logic, formalizations of scientific theories, etc.—describe a condition to which rational thought can or should aspire' To paraphrase and quote again from Putnam, our conceptions of rationality cast a net far wider than all that can be scientized, logicized, mathematized, in short, formalized: 'The horror of what cannot be methodized is nothing but method fetishism.'

I have discussed this with regard to how philosophers sometimes approach critical thinking pedagogy in my paper, 'Collective Self-Examination: Thinking Critically about Critical Thinking,' available online at Radical Pedagogy, 8:1 (Spring 2006). In philosophy, the penchant for formalism is evidenced in the attention accorded Bayesianism, as well as attempts to bring inductive 'logic' closer to rules of formal logic, what Dewey termed the 'quest for certainty,' a quest with roots in both Aristotle and Plato insofar as what counts for genuine knowledge is demonstrative in a deductive sense (the axiomatic method). For Plato, this was enshrined in mathematics, while in Aristotle, we turn to the syllogism. Of course it's important to recall the role of rhetoric in Aristotle and the part of both dialogue and dialectic in Plato, meaning that neither Aristotle nor Plato can be held responsible for what occurred in Europe after the 1630s. In the words of Toulmin's narrative, 'The research program of modern philosophy…set aside all questions about argumentation—among particular people in specific situations, dealing with concrete cases, where varied things were at stake—in favor of proofs that could be set down in writing and judged as written.' We've seen the rehabilitation of rhetoric in several disciplinary domains, but its content remains largely pejorative in most quarters of analytic philosophy.

It's worth thinking deeply about the following from Avrum Stroll: 'the doctrine that only the methods of the natural sciences give rise to knowledge is today widely espoused in epistemology, metaphysics, philosophy of language, and philosophy of mind' (i.e., scientism). So, philosophers aspire to be more scientific, with the natural sciences thought to exemplify the requisite rigor and robustness. Is it surprising that the social sciences would reveal a similar proclivity?

In Fact and Method: Explanation, Confirmation and Reality in the Natural and Social Sciences (1987), Richard Miller explains Bayesian reasoning as the latest incarnation of positivist fantasy, 'an excess of formalism in which truisms about likelihood (plausibility, simplicity, and so forth) are given one-sided readings and abstract results are developed at too far a remove from the problems to be solved.' Miller avers this latest round of falling head over heels for formalism is caused by 'the triumph and prestige of the physical sciences, or ingrained ways of thinking in a highly monetary society, or both…' The overweening fondness for Bayesian formalism exemplifies what Nicholas Rescher (1997) calls a 'penchant for quantities,' a 'fetish for measurement:' 'People incline to think that if something significant is to be said, then you can say it with numbers and thereby transmute it into a meaningful measurement. They endorse Lord Kelvin’s dictum that
"When you cannot express it in numbers, your knowledge is of a meager and unsatisfactory kind." But when one looks at the issue more clearly and critically, one finds there is no convincing reason to think this is so on any universal and pervasive basis.' As Rescher also reminds us, '…the things you cannot quantify in the context of an inquiry may well turn out to be the most important.' Bayesianism may have been elected the post-positivist prom queen of induction, but there are other princesses and their retinue deserving jeweled pieces of the crown: inductive generalization (e.g. enumerative induction) and hypothetical induction (e.g. hypothetico-induction) for two, a sum of three paradigmatic inductive principles, three archetypes, and the respective families they engender in response to their respective weaknesses (see the work of John D. Norton).
In Norton's words, 'based on the principle that belief comes in degrees, usually numerical, and is governed by a calculus modeled more or less closely on the probability calculus.' Indeed, 'if there is one account of induction that does aspire to be the universal and final account, it is the Bayesian account.' It's a wilfull misreading to infer from this a denial of the utility of deductive logic, of Bayesianism, of statistics, of formal methods generally, especially in fields like epidemiology! The problem, rather, is the assumption that such formalism unfailingly expresses the quintessence of 'good research.'

As Jonardon Ganeri has made clear, reason is 'embedded, articulated and manifested in culturally specific ways' and 'forms of rationality' are 'interculturally available even if they are not always interculturally instantiated.' In three very important books (see below), the economist Deirdre McCloskey courageously and cleverly attempted to persuade her colleagues in economics to rely far less on mathematical formalism and a 'scientistic style,' and far more on the 'whole rhetorical tetrad—the facts, logics, metaphors, and stories necessary' [….] in order to become 'more rational and more reasonable…' In political science, Ian Shapiro probably comes closest to advocating something like McCloskey's argument.

I'm listing here SOME books that address topics raised by your post and these comments.

Douglas, Mary and Steven Ney. (1998). Missing Persons: A Critique of Personhood in the Social Sciences. Berkeley, CA: University of California Press/New York: Russell Sage Foundation.

Dupré, John. (2001). Human Nature and the Limits of Science. Oxford, UK: Clarendon Press.

Fuller, Steve. (1988). Social Epistemology. Bloomington, IN: Indiana University Press.

McCloskey, Donald N. (1990). If You’re So Smart: The Narrative of Economic Expertise. Chicago, IL: University of Chicago Press.

McCloskey, Donald N. (1994). Knowledge and Persuasion in Economics. Cambridge, MA: Cambridge University Press.

McCloskey, Donald N. (1985).
The Rhetoric of Economics. Madison, WI: University of Wisconsin Press.

Miller, Richard W. (1987). Fact and Method: Explanation, Confirmation and Reality in the Natural and Social Sciences. Princeton, NJ: Princeton University Press.

Norton, John D. (2003). A Material Theory of Induction. Philosophy of Science, 70, pp. 647-670.

Porter, Theodore M. (1995). Trust in Numbers: The Pursuit of Objectivity in Science and Public Life. Princeton, NJ: Princeton University Press.

Putnam, Hilary. (2002). The Collapse of the Fact/Value Dichotomy and Other Essays. Cambridge, MA: Harvard University Press.

Putnam, Hilary. (1995). Pragmatism. Malden, MA: Blackwell.

Putnam, Hilary. (1990). Realism with a Human Face (James Conant, ed.). Cambridge, MA: Harvard University Press.

Putnam, Hilary. (1994). Words and Life (James Conant, ed.). Cambridge, MA: Harvard University Press.

Rescher, Nicholas. (1999, revised ed.). The Limits of Science. Pittsburgh, PA: University of Pittsburgh Press.

Rescher, Nicholas. (2000). Nature and Understanding: The Metaphysics and Method of Science. Oxford, UK: Clarendon Press.

Rescher, Nicholas. (1997). Objectivity: The Obligations of Impersonal Reason. Notre Dame, IN: University of Notre Dame Press.

Schatzki, Theodore R., Marin Knorr Cetina and Eike von Savigny, eds. (2001). The Practice Turn in Contemporary Theory. New York: Routledge.

Shapiro, Ian. (2005). The Flight from Reality in the Human Sciences. Princeton, NJ: Princeton University Press.

Shapiro, Ian, Rogers M. Smith, and Tarek E. Masoud, eds. (2004). Problems and Methods in the Study of Politics. Cambridge, UK: Cambridge University Press.

Toulmin, Stephen. (2001). Return to Reason. Cambridge, MA: Harvard University Press.

Toulmin, Stephen. (2003 ed.). The Uses of Argument. Cambridge, UK: Cambridge University Press.

Walton, Douglas N. (1989). Informal Logic. Cambridge, UK: Cambridge University Press.

Williams, Michael. (2001). Problems of Knowledge: A Critical Introduction to Epistemology. Oxford, UK: Oxford University Press.

Ziman, John. (2000). Real Science: What it is, and what it means. Cambridge, UK: Cambridge University Press.

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