I think the key challenge and imperative for law and econ scholars in law schools will be to relate what they do to the market for their output — i.e., jobs for their students. (Shouldn’t market-oriented scholars pay more attention to this?)
I recently discussed this market-oriented perspective on law teaching in my article, Practicing Theory. The article’s basic point is that deregulation and fundamental changes in the market for legal expertise, particularly including those driven by technology, will force law schools to think harder about how to make their students more competitive. Unlike many commentators on legal education, I don’t think this involves more trial practice, clinics and externships in law schools, but rather a refocusing of the theoretical and policy-oriented work that is legal education’s traditional comparative advantage.
More specifically, we need better integration of law and technology. We should also focus on legal architecture or engineering rather than the mechanics of applying received legal wisdom. In the future the machines will do the mechanical stuff. Legal experts will be needed to craft policy and design legal software.
So the question is, how can the theory and practice of law and economics best meet these market needs? Richard Posner comes closest to this general sentiment when he says “economic analysis of law may lose influence by becoming too esoteric, too narrow, too hermetic, too out of touch with the practices and institutions that it studies.”
David Weisbach offers what may be the most practical suggestion — more thinking about the use of computational models in law. As he says, this
is a very different view of legal analysis—it views problems as engineering problems that we model and test. It is empirical, practical, and solution-driven. The role of the legal scholar is to help frame problems, to think about how institutional structures affect the framing, to suggest solutions, and to help interpret and evaluate results.
I recognize that this view may irritate some scholars. We all like universities for the same reason as Dan Aykroyd’s character in Ghostbusters, “([t]hey gave us money and facilities, we didn’t have to produce anything! You’ve never been out of college! You don’t know what it’s like out there! I’ve *worked* in the private sector. They expect *results*”).
I’m not talking about my preferences but about where I think things are actually headed in legal academia given rapid changes in the legal profession. Law and econ scholars, like other legal academics, increasingly will need to justify themselves in market terms. On the bright side, who is better able to do this?