Empirical Legal Scholarship, Empirical Legal Scholars, and the Quality of Legal Education: A Response to Professor Bainbridge

Cite this Article
Josh Wright, Empirical Legal Scholarship, Empirical Legal Scholars, and the Quality of Legal Education: A Response to Professor Bainbridge, Truth on the Market (March 01, 2011), https://truthonthemarket.com/2011/03/01/empirical-legal-scholarship-empirical-legal-scholars-and-the-quality-of-legal-education-a-response-to-professor-bainbridge/

Professor Bainbridge isn’t fond of empirical legal scholarship; more significantly, he asserts that law professors trained to pursue it fundamentally undercut the purposes of legal academia.  (His judgment on legal academics which moonlight as amateur statisticians remains to be seen.)  Professor Bainbridge has for some time criticized empirical legal scholarship – but now he targets legal scholars themselves.  Stated another way, Professor Bainbridge claims that empirical legal scholars depress the quality of legal education by fusing an underdeveloped corpus of legal knowledge to a second-rate grasp of an extra-legal discipline.  The provocative claims in Professor Bainbridge’s recent National Journal article do not end there.  Professor Bainbridge swipes:

A lot of the people I see who are empiricists, often with doctorates in the social sciences, aren’t very good lawyers,” he said. “I’ve read numerous papers that just got the law wrong. The problem is that we’re hiring people with Ph.D.s in other fields, but their law credentials are middling at best. Someone who is a brilliant economist wants to be in a economics department, so we get second-rate lawyers who are second-rate in their academic field.

In an update to his post, Professor Bainbridge further clarifies his objections:

What I object to is (1) pseudo-social science being done by legal academics untrained in the relevant discipline, (2) hiring people to teach law with because they ran enough linear regressions to get to the point of being ABD in some social science but not to the point of actually being able to get hired in their home discipline, and/or (3) hiring people who are really good at their home social discipline but have mediocre legal credentials/skills. Both of the latter categories tend to produce lousy legal scholarship and make awful classroom teachers.

Trained empiricists may consider themselves on notice.  I should start by noting that I agree with many of the criticisms of empirical legal scholarship as a field.  While I’ve written here (and here) before about some problems in empirical legal scholarship, I reject however, the claim advanced by Brian Leiter and Professor Bainbridge that empirical legal scholars generate lower quality scholarship than their counterparts on average.  I have neither seen firsthand nor can conceive of any compelling inference to suspect it is true.  On the contrary, one might reasonably suspect that significant learning in the two separate fields are complements in the production function – be it in teaching or scholarship – and that this complementary relationship, even accepting Professor Bainbridge’s dismal premise, might lead to higher, rather than lower, quality on average.

Yet this does not precisely respond to Professor Bainbridge’s central claim: that Ph.D. holders perform poorly relative to conventionally trained and credentialed academic peers.  Before forming a reply, I note the lack of evidence that Professor Bainbridge’s claimed metric – traditional legal credentials – actually suffers in the relevant population.  Neither the Professor nor anyone else, so far as I know, offers any such evidence; I will not be the first to do so here.  Of course, the medium of blogging encourages these sorts of rapid responses, so I won’t belabor this point.  The underlying hypothesis, however, is testable; and, to be reasonable, there is at least some intuitive sense to the notion that Ph.D. holders should have less prestigious traditional legal credentials, opportunity costs being what they are.  There must be some tradeoffs at the margin.  Yet “middling at best” implies, to put it gently, that interdisciplinary folks simply lack the time or mettle to figure out “the law.”

At a very minimum, Professor Bainbridge argues that the tradeoff between pursuing a Ph.D. and earning traditional legal credentials is so significant that what trained interdisciplinary scholars lose in “legal credentialing” necessarily impacts their ability to understand, to write about, and to teach the law.  What is the explanatory narrative Professor Bainbridge offers?  A talented candidate missing out on being an EIC at a law review?  Turning down a clerkship?  Even assuming this to be true, which I don’t, is it impossible – or even implausible – that the skills learned while earning the Ph.D. provide some offsetting benefits that in turn improve legal analysis?  Perhaps not – especially considering Professor Bainbridge’s presumption that if an interdisciplinary scholar was talented at the essence of their “home discipline” that they would instead opt into that branch of academia.  We’ll save that for a bit later in the post: let it suffice to say that I am not convinced.

First and most directly, are legal scholars with Ph.D.s really, on average, lower quality lawyers?  This requires we start with an examination of first principles.  Why would an economist go to a law school instead of an economics department?  One possible explanation – which Professor Bainbridge unqualifiedly endorses – is that the cross-disciplinary student opted-out of their own discipline.  This is plausible.  I offer two more with more salutary implications: (1) a first-order trend in economics over the past 20 years has been to reward more abstract and mathematically formal theoretical work and to abandon, in large part, policy-relevant law and economics; (2) law schools pay more.  Ceteris paribus, one would imagine the implications for the latter are positive, if clear at all – after all, one can envision that law schools are paying for a slightly higher quality of academic.  Let us even presume this is a marginal difference.  As to the former, the important question is not the relative performance of economists and empiricists in law schools versus those in their home discipline – these scholars are largely interested in entirely different classes of questions, and as such, the substitution that Professor Bainbridge envisions is actually a false one.  The correct counterfactual appears to be the performance of interdisciplinary scholars in law schools versus their pureblooded doctrinal brethren.  One might also propose the performance of Ph.D.-holding interdisciplinary scholars who are making the tradeoffs Bainbridge specifies (i.e. Ph.D. instead of clerkship or EIC of law review) versus those doing empirical work “without a license.”

Second, Bainbridge is clear about his desired comparison.  In an earlier post, he describes with some nostalgia the days of a world where law professors felt neither desire nor compulsion to pursue a Ph.D.:

If we were still trying to hire folks because they were EIC of a top law review, head of their law school class, had a good clerkship, and some experience in a top law firm doing real law, I’d be more confident of our ability to teach people to think like lawyers instead of teaching them to think like mediocre statisticians, sociologists, philosophers, economists, or what have you.

I hate – alright, I somewhat hate – to beg a provocative question, but isn’t this inherently an empirical question itself?  There are a number of law schools that have wholeheartedly embraced the interdisciplinary ethic; there are more still that either have rejected it or remain indifferent to it.  Further, we see variation over time.  My suspicion is that neither comparison would reveal a meaningful difference in performance; of course, I have a bias – I teach at George Mason, Henry Manne’s law school, where integrating economics and quantitative skills into legal scholarship has been part of educational mission for some time.   Moreover, there is some evidence I’m quite familiar with suggesting that judges trained in economics perform better in antitrust cases.  More generally, however, I find the idea that significant training in economics (or another social science) undermines legal education and legal performance unlikely.  Is there such a surfeit of economic understanding and a dearth of legal knowledge that training lawyers to at least grasp economic questions inherently corrupts the legal enterprise?  I would think that ingraining newfound lawyers – pure lawyers, not cross-disciplinary types – with an understanding of incentives and tradeoffs at a higher than the hand-waving that sometimes passes for economic analysis in legal scholarship would itself prove virtuous.  As any law student will (gratefully) tell you, we don’t teach differential calculus – but does Professor Bainbridge mean to imply (or state) that a deeper understanding of property rights and the demand curves will undermine legal education?  The universe of legal scholarship that could be reasonably improved with even a first measure of economic understanding is broad.

This presents another implicit question that Professor Bainbridge’s claim requires one confront: the relevant measure of “performance” for a legal scholar.  Is it published scholarship?  Teaching?  Some amalgamation of the two?  Professor Bainbridge’s criticisms are couched in terms of teaching – that Ph.D.-holders are more likely to be “awful” teachers, and that they thereby disserve future law students.  This leads to recurring mediocrity in Professor Bainbridge’s eyes as the interdisciplinarians teach law students to think like “mediocre statisticians, sociologists, philosophers, economists, or what have you.”  Interdisciplinarians not only teach bad law (on account of the Ph.D./clerkship tradeoff), but fundamentally misapply basic principles of their relevant discipline as taught to budding lawyers.  One supposes that interdisciplinarian demand curves slope upward.

This brings Bainbridge’s past thoughts on empirical legal scholarship to mind.  My continued response is – predictably – a desire for some quantum of proof.  Absent such, what grounds exist for such intense protest?  Economic theory can speak to this conundrum.  Antitrust economics provides an old – and accurate – canard: if a rival complains about a firm’s business practices, the practice is probably good for consumers.  My instincts lead me to believe something akin to this dynamic is in play.  To be clear, I have no doubt that there are poor empirical studies, and that there is poor empirical legal scholarship – but this would not be the first time an incumbent complained about the business practices of an upstart rival.

Finally, Professor Bainbridge’s post – and this discussion more broadly – seems to lack a sense of the relevant magnitudes.  Professor Bainbridge entitles his first post “How do we teach them to think like lawyers when we’re only hiring Ph.D.s?”   Only? Really? Admittedly, the fraction of law professors with Ph.D.s is increasing; nonetheless, I imagine that as a total percentage – or even when compared to law professors with prestigious clerkships, one of Professor Bainbridge’s proffered substitutes – it remains vanishingly small.  The trend towards doctoral candidates occurs largely in the top tier of law schools.  At last count, there were something around 200 in the country.  I suspect that whether that fraction increases further will largely on the performance of interdisciplinary scholars both in legal scholarship and in educating new lawyers.  This is a debate that will have to be determined, ironically enough, on empirical grounds.  Allow me to close with an empirical observation.  If the relevant comparison or counterfactual here appears to be hiring “folks because they were EIC of a top law review, head of their law school class, had a good clerkship, and some experience in a top law firm doing real law” how would that work out in the classroom?  One bulwark of that era was a steadfast commitment to the Socratic Method: a legacy that Professor Leiter has described as “the scandal of American legal education” and of which Professor Bainbridge has rejected in favor of a lecturing style, observing that “the Socratic Method does not really teach one to think like a lawyer.”  It appears that we agree that the “good old days” of legal education were ripe for improvement on all sorts of margins – we just disagree on the proper prescription.  Fair enough.

I have no doubt that there are good and bad legal interdisciplinary legal scholars, just as there are good and bad law professors of the traditional variety; I suspect classroom performance is similar.  I fully agree with Professor Bainbridge that “a much more vigorous debate about the place of empirical legal studies in the legal academy” is warranted.  If we are going to be rigorous about the debate concerning the relationship between interdisciplinary training and quality of legal education, however, let us extend that rigor to confounding factors, to thinking hard about proposed causation, and to extrapolating seriously on the relevant counterfactuals.

If only there were some set of skills a legal scholar might acquire in order to carry out such an analysis…