ELS, CELS and Bubbles in Legal Scholarship

Josh Wright —  24 November 2009

Some interesting thoughts from David Zaring and Larry Ribstein on the future of the empirical legal studies movement and its flagship conference, CELS.   Zaring asks whether there is enough glue holding the various constituencies within the ELS movement together.  Ribstein warns of an empirical bubble and argues that the real need for an umbrella organization and conference is methodological standard setting:

Legal scholars once decried too much untested theorizing. That time is long gone. Legal academics’ discovery of empirical research has given rise to the greatest explosion of intellectual entrepreneurship since Al Gore created the Internet. Now instead of untested hypotheses we get unhypothesized tests. We also get some tests that could be characterized as the intellectual equivalent of pets.com (although thankfully little of this bad stuff at CELS itself). …

I think the greater need is self-discipline in a community of scholars that is becoming rapidly more diverse as folks trained in all kinds of disciplines mingle with legal scholars like me. That, I think, is CELS’s “common cause.” It is furthered by bringing scholars together once a year to focus on methodology and to weed out the bad methods from the good ones.

This is the opposite of the Stigler critique of the modern IO literature in economics — the ratio of empirics to theory is near zero.  Here, Ribstein argues it is too high.  Its true.   The reduced cost of accessing data and running canned statistical packages combined with the lack of peer review in legal scholarship has generated, as Ribstein notes, a whole lot of empirical work in the left tail of the distribution.  Ribstein suggests that CELS might tame the bubble with an emphasis on empirical rigor.  I certainly seems to be doing so and that is an incredibly valuable function in its own right.

I only want to add one modest point to the conversation that focuses less on ELS or CELS per se and a bit more on the broader trends in law and economics scholarship.  Ribstein notes that the high empirics to theory ratio is a problem that might be solved by CELS playing matchmaker with empiricists and theoreticians.   This would certainly be a better outcome than either specialist theorists substituting toward empirical work or driving theorists out altogether.  But I’m not sure there is any reason to be optimistic about the empirics/theory ratio falling.  All theory is not created equal.  And part of the specialization problem that Ribstein notes is to do with trends in the economics discipline (which I’ve discussed before) that have created a premium for more mathematically formalized theory that is, while elegant, often detached from policy relevance.  Sometimes intentionally so.  From a law and economics perspective, this is more of a bug than a feature and a reason to be concerned about the future of law and economics.  Now, obviously, Ribstein has in mind that a conference like CELS would attract the theorists who are interested in testable hypotheses and policy relevance and match them up with empiricists or legal scholars and produce fruitful collaborations.  This is no doubt a benefit of conferences like this.

But on a broader scale, and not so much directly related to CELS or ELS, I wonder if the “next big thing” will be exchanging our empirical bubble for a theory bubble?  I’ve written before that for a number of reasons I suspect that the economic theorist will increasingly be shifted out of law schools toward other departments.   It is not difficult to imagine a scenario where the gap in the production of theory is filled by non-specialists with a similar dynamic to what has generated what Ribstein calls the “empirical bubble.”   Perhaps not though.  One important difference is that there has been a huge reduction in the cost of producing empirical work but rigorous theory, at least as it stands in the modern economics literature, remains really hard to produce without training.  Of course, its much less costly to produce the variety without rigor so that is an option.  In any event, I suspect that the short to medium term future of law and economics will be less theoretical, more empirical, and involve much more collaboration between legal scholars and empiricists (a la Kobayashi and Ribstein) and not a lot of theorist + empiricist combinations.  Whether that leads to trading in our empirical bubble for a theory bubble will be interesting to see.