The Future of Law and Economics Part 6: Wrap Up & A Brief Reply to Manne on Empirical L&E

Josh Wright —  21 May 2008

In Part V of the series on the future of law and economics (Parts I, II, III, and IV), Henry Manne graciously offered a reply to my thoughts on where L&E might be headed and why. I encourage the readers interested in the series to take time to re-read Henry’s response in its entirety. While Henry and I agree on many points concerning the problems facing L&E and what might be causing them, I interpret his post as raising two major points of disagreement. The first is that I largely ignored issues of ideology (see also Brian Tamahana’s comment here) and their role as a force pushing modern L&E out of law schools. That is fair enough. I agree with this point in the sense that I don’t think there is any doubt that the shift in the content of modern L&E toward empiricism, behavioral law and economics, and theoretical modeling is consistent with a theory that those forms of L&E are likely to be much more acceptable to the political left than the L&E scholarship of the previous several decades.

But I want to offer brief rejoinder concerning our second point of disagreement, the role and future of empirical L&E in law schools. Henry describes my defense of empirical L&E in law schools as “somewhat surprising,” and notes correctly that a large fraction of modern empirical L&E suffers from the same retail problems described throughout the series. But I think we largely, but not completely, agree here as well. For instance, we both agree that some empirics play an important role in L&E. We also agree that without the retail component of L&E there is really no basis for L&E to remain in law schools, that is, economists or social scientists in other departments would be better situated to do it. Finally, we agree that there are some important differences between modern empirical L&E and the empirical L&E of the past several decades both in terms of technique and tone. In terms of technique, there is no doubt that methodological changes have shifted (consistent with the general trend in economics) in favor of less accessibility. Comparing modern empirical scholarship to the original empirical L&E (e.g. Stigler), it is tempting to focus solely on the differences in the mathematical sophistication of the methods.

But there is also an important difference in terms of tone. What is most surprising to me is that modern empirical L&E scholars seem to be much less interested in retail in terms of judges and the general legal audience. One might suspect that blogs, as a complement not a substitute for legal scholarship, would facilitate this kind of retail (again, think Freakonomics and especially Levitt and Wolfers). And of course, there are all sorts of noteworthy exceptions. But my casual sense is that empiricists seem much less interested in retail than the used to be. Which brings me to my main point. I do not believe that the choice must be made between sophisticated methods and retail. This is a post about economics by an economist, so I’m certain to tell you that there are tradeoffs! But I do believe the success of books like Freakonomics with the general population provide some evidence that these methods *can* be retailed in various forms (articles, workshops, books, monographs) to judges and legal scholars in ways that make the work accessible, in sufficient detail that the reader can understand intuitively what is being done, and without sacrificing sophisticated methods. This last part is important. These sophisticated methods take a lot of heat for their formality and inaccessibility. They shouldn’t. At least not on those grounds alone. To the extent that these methods allow us to more reliably and more accurately identify causal relationships, magnitudes of effects, etc., we should be willing to embrace them so long as the empiricists embrace L&E by investing in retail.

Perhaps I’m wrong about this. Or just hopeful. But in my humble and perhaps overly optimistic and admittedly self-interested view, the technical advances in econometric methods do not require empirical L&E to abandon retail. I guess at the end of the day my view is that if the modern empirical L&E scholar cared enough about it, and they ought to, then some retail of L&E would remain possible. Perhaps they don’t. Or perhaps some of the various legal institutions that care about L&E at the retail level should target some of their efforts at increasing the production of accessible empirical scholarship (or collaborations, or translations …). In any event, I thought these final points were worth sharing.

I will of course leave the very last word on this to Henry should he find anything I wrote requires a response, correction, or critique. But I’m very interested in what empirical L&E types have to say about these trends and what they mean for the future of empirical L&E. Is there more retail level L&E going on than I think? Am I right that there seems to be less interest in retail empirical L&E as opposed to papers speaking largely to each other? Any other responses?