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The following email from Henry Manne takes up our previous discussion of the future of law and economics (available here in downloadable form) and is published with permission. I’ve inserted a few links where Manne references a few blog posts responding to our earlier discussion. With that said, here is Manne:

It is a little disappointing that there has not been a larger debate stirred up by our efforts, but that may tell us something about the level of interest either in L&E or in what happens in law schools today. Frankly I think I would put my money on the latter explanation. I think the entire legal education enterprise has become so politicized and ideological (and you know in which direction that leans) that there really are comparatively few law professors, especially among the younger ones, who even identify with the problem we were discussing. They don’t even know that law schools not too many years ago were intellectual wastelands. They still are, but the field is ersatz social science instead of doctrinal law.

That is what more and more leads me to regret losing the old approach of lawyers teaching doctrine to would-be lawyers. At least they did a creditable job of that. And incidentally I think Solum is too parochial when he asserts that there is no social justification for that approach to law. I think Hayek’s defense of common law is just that and very powerful.

There may be room for Solum’s PhD idea, but I do not think it will be occur
in the law schools (Harvard and Michigan and Stanford would never forego the training of practicing lawyers). His third possibility, the mixed interdisciplinary law school is the model that I think we have already seen won’t work, if for no other reason than the low quality of the non-law discipline scholarship. (His model of universities as a market for truth instead of a more traditional market just won’t fly unless he can adduce some far different evidence than I have seen.) The other blog, discussing engineers and physicists does nothing more than repeat the problem in an
analogy which is far from perfect. Engineers, unlike lawyers, do not have much choice of careers after graduation, and woe be unto the bridge builder whose ends don’t meet – unlike the would-be philosopher kings among self-described L&E scholars, who don’t know one end from another.)

Having said all that I want to warn against predicting the future in anything as chaotic as our universities. I don’t think there is much that is systematic in any not-for-profit organizations, and the problems are just compounded in our universities. One really good charismatic academic entrepreneur could do more to set the tone of future law schools than anything we have discussed. But whether such a person will ever exist and what he or she will look like I have not a clue.

Dan Drezner raises the plausible possibility that the real reason for the objection of some 8% (101) of the full-time faculty to the Milton Friedman Institute at the University of Chicago, which we blogged about earlier here, is “grounded less on ideology and more on an effort to ensure these departments get a bigger slice of the pie.”  HT: Jon Adler.  The letter itself concedes that funding is a motivating factor for some dissenters:

Many of us are also perturbed that other units of the University that routinely engage the issues that the Friedman Institute is designed to address were not included in the planning, nor included in the ongoing core scholarly endeavors of the Institute….

Still others believe that, given the influx of private contributions to the MFI, the University now has the opportunity to provide roughly equivalent resources for critical scholarly work that seeks out alternatives to recent economic, social, and political developments.

And for more support for Drezner’s theory, he points out that: “the modal department affiliations of the petitioners are Anthropology, East Asian Languages, English, History, and Political Science.”

In my prior post, I noted that “I’m particularly interested to know whether any members of the University of Chicago Law School signed this or alternatively, have publicly supported the Milton Friedman Institute.”  Well, from the list of signatories, we can answer the first question.  None from the law school.     But what about the lack of public support?  I’ve seen a few economists come out in defense of the Milton Friedman Institute, e.g. Steve Levitt, but nothing so far from Chicago’s law school faculty unless I’ve missed it.

The NWU 2 Year Program

Josh Wright —  21 June 2008

Bill Henderson has some thoughtful commentary on Northwestern University’s announcement of its 2 Year JD.  He likes it.  Here’s an excerpt:

So let’s get this straight:  NWU Law is going to attract applications from all the experienced, motivated students who want their elite JD degrees in two years versus three.  Then it is going to give them, through mandatory coursework, business training that will bridge the traditional gap between lawyers and their MBA clientèle.   Sorting plus training.  Why would an employer prefer a 25 year-old fresh out of another elite law school?  Because the education was stretched over 32 months rather than 24 months–that trumps work experience and mandatory business training?

Read the whole thing.  Bill looks to the market for evidence that the NWU program is a good idea (and finds it).   As an economist, I am inclined to agree with Bill that this approach is superior to ” taking a poll in the faculty lounge.”  Along those lines, there is a rule of thumb in antitrust analysis that a fairly reliable indicator for assessing the competitive effects of some proposed conduct: if customers complain, the conduct is likely to be anticompetitive, but if it is competitors that are complaining, the proposed conduct probably makes the firm a more effective competitor and is good for consumers.  Through this lens, the critical comments from representatives of Northwestern’s in state rivals University of Chicago and University of Illinois (Chicago Professor Geoff Stone went so far as to describe the program as “irresponsible”) look like good news for consumers of legal education.

So says Jagdish Bhagwati about the recent objections by 100 or so University of Chicago faculty members to the establishment of the Milton Friedman Institute.  (HT: Chicago Tribune).  Here’s the whole quote as reported from the Chicago Tribune:

“It is nonsensical to object. . . . Chicago should be proud it has someone like Milton on its rolls … . Anybody who can claim that Milton was not one of the major thinkers of his time is crazy.

A copy of the letter sent to the U of C President and Provost is available here.  The faculty proposal for the MFI is here.  I cant find the identities of the signatories anywhere.  I’m particularly interested to know whether any members of the University of Chicago Law School signed this or alternatively, have publicly supported the Milton Friedman Institute given that its mission as described in the Tribune article includes “attract[ing] visiting scholars who will conduct research on topics related to economics, business and law.”  The proposal indicates that Eric Posner is the sole law school member of the MFI faculty committee, along with Lars Peter Hansen, Gary Becker, John Cochrane, James Heckman, Robert Lucas, and Kevin Murphy.

I’ve compiled (with some light editing) the blog posts from the future of law and economics series into an article, including the response from Henry G. Manne, entitled “The Future of Law and Economics: A Discussion.”  For those interested in reading the blog posts in their original form, along with the comments, I’ve indexed the links below:

Part I: The Future of Law and Economics
Part II: Mathematics, Retailing L&E and Detachment
Part III: L&E Scholarship
Part IV: Potential Solutions

Part 5: A Reply from Henry Manne
Part 6: Wrap Up & A Brief Reply to Henry Manne on Empirical L&E

From Peter Boettke at the Austrian Economists blog.  Boettke gives detailed advice on how to prepare for your first year of a graduate program in economics, but the general message of the advice is more broadly applicable.   I agree with virtually everything he says about the economics (start writing early and read lots of Alchian are amongst the recommendations), and you should read his post for those details, but the last paragraph is advice worth sharing here for both law students and economics graduate students:

And finally, find the brightest and those who love economics among your fellow students and become close friends, and pursue the graduate education and research journey together.  You will learn as much, if not more, from your fellow students as compared to your professors.  Choose wisely.

That passage certainly resonates with my own graduate school experience a great deal.  Go read the whole thing.

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?

I’ve had a wonderful time writing this series on the future of law and economics. When I started the series (Part I, Part II, Part III, and Part IV), I thought it would be a fun thought experiment for me to think through aloud and hopefully start a valuable conversation. By that measure, it has been a success. I’ve received many valuable comments, critiques and responses in blog posts, emails, and in person. But I couldn’t possibly dream up a better way to end the series than with a response from Henry Manne, a founder of the L&E movement, who is perhaps more responsible than any other single figure for its dissemination throughout the legal academy. I think this response is a treat for our readers who are interested in this topic and want to personally thank him for taking the time to offer his thoughts on my series.

As you’ll see, Henry agrees with some of my points and disagrees with others. It appears that our major disagreement centers around my optimism for the empirical L&E agenda in law schools. I will reserve one last modest response on this particular point for a later post, as I believe it presents the opportunity for further valuable discussion, but will also be happy to give Henry the last word should he desire a sur-reply. Without further ado, here is Henry’s response to the series on the future of law and economics:

I found some very thoughtful, even profound, points in your series, but I also found some glaring weaknesses. In the same spirit in which you wrote your ideas, I offer you some passing thoughts on the subject. I have by no means sought to make an orderly response to your discussions, nor to be exhaustive of the many interesting topics you raise. You will just have to sort out for yourself the parts that are relevant for your purposes and those that may do no more than reflect the musings of a never-satisfied old warrior. I might add that this was written in haste (will repentance follow?), and I reserve the right to change my mind tomorrow.

First I want to examine your right-on delineation of the problem as resulting from too much mathematics and over-formalization, the accessibility problem. I was somewhat surprised to find you never mentioning one salient fact in this issue, that the task of a law school is to prepare students for the practice of law and to do the kind of scholarship (research) that serves an instrumental social benefit within the area of law professors’ expertise. I am afraid that your approach to this has been somewhat distorted by your own training and expertise, a problem that afflicts most academics. You show an unmistakable tendency to want to protect the value of the skills that you have. Thus you make what to me seems a somewhat surprising defense of econometricians in law schools (I’ll discuss this point later). Now please understand that I do not criticize you personally for this, for that is exactly what I tried to do starting in the 1950’s, i.e. utilize the skills that I had and to increase the demand for those particular skills. I was fortunate that there happened to be a convergence between my approach and what worked for the law schools of that time. As you and I agree, Law and Economics has been of extraordinary value to legal education. It took it out of the doldrums of anti-intellectualism and mechanical thinking about law, and made law schools respectable partners in the greater role of universities. That was no small development, and I do not think that it is in any immediate danger of being reversed., though sometimes, when I see the quality of what some law professors pass off as Law and Economics scholarship, I wince and think that perhaps the old style law schools were better since at least they could at least pass the Hypocritical test of doing no harm.

But to get back to my main point, I really do not think that we should be bothering in law schools with either teaching or research that in some ways does no make for better lawyers or for better legal scholars (not necessarily the same thing, but again there is convergence in the long run). I do not see any reason for the law reviews to be full of arcane economic jargon that will never be used by any practicing lawyer or comprehended by any sitting judge (with some very rare exceptions). And here I get to my main point. I think that most of that is the result of the very peculiar “market” forces that operate in universities and not from any thought-out rationale of making better laws or lawyers. (See my “The Political Economy of Modern Universities”). In other words, it is part of the general pattern of professors writing for each other and not for the outside world. That was not the thrust of the original L&E approach. Rather the original approach was simply a marginal (jurisprudential) movement from what most legal-realist-oriented law professors were already doing but, alas, doing very badly. They were trying to explain why one rule of law was better than another (and that did implicate eventually some need for econometrics to be able to do a careful cost-benefit calculus; thus I do not reject your emphasis on the importance of empirics, but I may disagree with you on who is best positioned to do it), but the focus was always on improving the law and not on showing the methodological skills of the authors. This was the intellectual victory which revolutionized the law school world, and it was all because of one thing that you rightly note; that is the power of economics, vastly greater than that of any other discipline, to resolve what had appeared to be purely normative issues in a positive way. It was the introduction to this kind of power that opened the eyes of many law professors back in the 1970s, and which I think still has the power to amaze people who are not familiar with economics’ great analytical powers. Of course, her I mean the kind of economics that you were first taught and which I internalized into my very soul at the feet of Aaron Director, Armen Alchian and Harold Demsetz.

And that gets me to my central point, one which I am afraid that you have missed. I think that the major issues are now, as they were fifty years ago, mainly ideological, and I believe that the causes forcing L&E out of the law schools today are the very same ones that operated to prevent my getting better jobs in the 1960s and for most senior law professors to think that what I was advocating was sheer nonsense, “to the right of Genghis Kahn,” as they used to be so stupidly amused at repeating ad nauseum. They were protecting their intellectual investment in skills and ideology against the threat of a new paradigm in which they could not share the rents, and I do believe that that is exactly what is still happening. While you and I see enormous social benefits from a legal system based on the idea of property rights and their protection, all they see is less role for the government and themselves. Perhaps this acts at an unconscious level, but it unmistakably is at work whatever the source of the peculiar leftist ideology of most academics.

What I am saying is that it is impossible to separate completely a discussion of the role of L&E in legal education from the ideological aspects of the subject. I honestly believe that at some level the turn of L&E to econometrics and empirical work is a flight from the implications of a thoroughgoing Alchianesque kind of economics. Perhaps that is even more clear with the current popularity of Behavioral Economics, and of late I even notice in the literature a somewhat open attack on the very idea of freedom of contract. I do not think these developments are accidental or random; I believe that they are inherent in the very structure of modern universities and law schools, and I, therefore, suggest that perhaps you are looking in the wrong direction for a solution to the problem you describe.

Certainly economics faculties, though they have much less motivation to enter the public arena than do law professors, are better situated to do the economics of law than are law professors, who mainly have a very different kind of educational mission. Even if that is not popular with them at the moment (other than perhaps in IO), that is not part of the concern of law schools (we don’t see Biology and Economics in Biology departments just because the economists happen not to be doing that kind of work), nor do I think it is the job of law professors to make significant advances in economic theory. They should utilize the insights of economics at the level at which it works for lawyers and judges, and that is all (it is a lot) that economics should be in law schools. As for empirical work, I like your idea of emphasizing collaboration and translation; that is probably the most meaningful kind of interdisciplinary work; but I see a fairly limited role for law professors in that (largely explaining to the empiricists what factual issues need measuring and what legal implications they might otherwise misunderstand).

I always thought that my idea of economics for law professors was vastly more important than the idea of economics for judges. I still think that, and I also still think that University Economics is the approach that makes sense in this task. But if that is not to be, and L&E is to go the way I see it at the moment (and we agree on most of that), then I would just as soon see it totally disappear from the law schools, though I do not really think there is much chance of that happening.

My colleague and fellow UCLA alumnus Thomas Hazlett and I have published an op-ed in the Chicago Tribune proposing a partial solution, partially inspired by the early exit of Kevin Love from our beloved Bruin basketball squad, to the problem of early exit by potential NBA draftees.  We note that the problem is the NCAA cartel, which restricts payments to college players while attempting to maintain the charade of amateurism.  While this restriction on cash payments is not likely to be lifted any time soon, we proposed that universities extend insurance coverage that will allow interested potential draftees to stay in school and insure the risk of draft slippage.   Here’s an excerpt:

So the answer, given that universities cannot pay athletes market wages, is to at least insure them. Were underclassmen to be appraised, via draft rankings, and then offered compensation in the event—post-graduation—they slipped by some increment, they could hedge this very considerable exposure. The NCAA allows players to insure, but the player pays even though it is largely the university (and its fans) that benefits. Moreover, policies can only insure against career-ending injuries, leaving the more common outcomes—less serious injuries and performance-related changes in draft status—terrifying prospects.

The schools should extend broader coverage. The contracts we propose do not fully compensate college athletes for their valuable service, and would thus retain only some of the talent now jumping early to the pros. Yet, the approach would preserve the NCAA’s “amateur” wink, while allowing student-athletes to play college ball until their 21st birthday without risking the family jewels. A slam dunk, really.

Check out the whole thing.

In previous posts (Part I and Part II) I discussed the increasing trend towards formal mathematics in L&E scholarship and some of the potential issues this raises for the L&E movement as it becomes more detached from the legal academy. This post focuses on another question: What will L&E scholarship in law schools look like in the future?

The most natural question to start with, and one I’ve discussed a bit in prior posts, is whether there will be any L&E scholarship in law schools in the future at all? I think the answer is yes. But the L&E scholarship that comes out of law schools is going to look different. One possible change is that there is a plausible concern that formal L&E scholarship will be “crowd out” high quality informal scholarship and render L&E without any presence at the retail level. Under this scenario, the trend towards increased formalism is sustainable, formal theoretical and empirical L&E scholarship must be valued by colleagues despite the fact that most of them aren’t interested in it or can’t read it. A second, and I think more likely, scenario is that as formal L&E becomes increasingly detached from, and presumably less valuable to, its intended audience but also colleagues in the law school, L&E scholars will migrate toward economics departments and leave the legal academy behind. (Larry Solum raises this and other possible scenarios in a very thoughtful response to this post which also addresses how this trend might play out in the legal academy more generally).

I tend to think the second scenario is much more likely. I don’t see the current trends as sustainable in the long run. To be clear, this is not a critique of L&E scholarship per se. Highly formal theoretical and empirical work is highly valuable. The stale debate about whether formality in economics is good or bad on the whole held aside for a moment, there can be no serious claim that formal economic contributions, harnessing the power of mathematical precision, have increased our economic knowledge and been an engine of progress for L&E. The question I’m dealing with here is about the limits of this trend. I’m not sure how close we are to the limit. And that is worth discussing. Entry level placements and lateral moves suggest that L&E in law schools suggest that L&E is still on the rise. But what happens to L&E scholarship in law schools when L&E as a discipline becomes so detached from “the law” that our theories cannot be retailed to a general audience or the results of our research cannot be disseminated to the legal academy? What type of scholarship stays in law schools? Who migrates to economics departments? Does some scholarship simply die off, too formal for law schools and too interested in the law to get tenure at economics departments? Lastly, do these changes suggest any new and profitable opportunities for legal scholars?

Here are a handful of thoughts that propose some tentative answers to these questions.

Continue Reading…

In my previous post, I sketched out some trends in the Law & Economics movement in recent years. Specifically, I’ve focused on the trends towards increasing mathematical formality and specialization within economics as a stand alone discipline. The post triggered some thoughtful responses from Larry Solum and Larry Ribstein for which I am grateful. I also received a number of responses in private which asked, rather bluntly, “So what?” The point was that even if everything I claimed about trends in economics and L&E were true, perhaps the result would be L&E scholars being more detached from the legal academy and migrating to economics departments. Again, so what? L&E work would be getting done by somebody somewhere. More than one of these private responses included the observation that maybe L&E types should be in economics departments anyway where there are tougher tenure standards, peer review, and less pay.

I planned on jumping in to the issue of where I think L&E in law schools is heading (including the issue of theory versus empirical work that David Zaring raised in the comments to the first post) and then what law schools and other institutions could do to solve the “problem.” But it seems like I might have more work to do to establish that the movement of L&E away from the legal academy would, indeed, be a real problem worth solving. So, in this post I’ll try to make the case that the trends highlighted in the first post, despite the benefits of mathematical rigor and precision, should give L&E scholars pause. The next three posts will get into the details of how I think this trend will play out in law schools, economics departments, and in legal scholarship itself.

My sense is that the increase in mathematical rigor poses special problems for L&E for several reasons. The primary reason is that the historical success of law and economics turns at least in part of its unparalleled success at the retail level. First and second generation producers of law and economics scholarship — think Director, Alchian, Coase, Williamson, Posner, Easterbrook, Calabresi, Stigler, Demsetz, and others — were able to “sell” important economic insights to lawyers, judges, policy audiences and the legal academy more broadly. Henry Manne took advantage of the power and accessibility of the economics insights from these L&E scholars by bringing them together at Economics Summer Camps to teach economics to law professors. The newly educated law professors would in turn, retail the power of economic thinking to law students. A similar process would take place with efforts to teach federal judges basic microeconomic theory through the George Mason Law and Economics Center programs which were also a brainchild of Henry Manne (this seems like a good place to plug Larry Ribstein’s essay on Henry Manne: Intellectual Entrepreneur which is forthcoming in a book I am co-editing with my colleague Lloyd Cohen on the Pioneers of Law and Economics).

In any event, the point is that much of the success of L&E owes to its success at the retail level. Antitrust is a wonderful example of the success of L&E. There is perhaps no other area where economic theory is integrated into the law. But even in areas where economics have not completely dominated the intellectual discourse, L&E has been an important voice in academic and policy debates in many areas of the law. Its voice is one that pushes for an understanding of how economic agents will respond to changes in the law, how markets work, and how markets respond to legal change. No matter whether one adopts the L&E worldview, as I do, I don’t think there is much debate the L&E has added a significant and valuable perspective to legal discourse. Indeed, one can make the case that its impact has been mores strongly felt than any other interdisciplinary approach to the law. The recent trend towards detachment from the retail audiences, from this perspective, is a special historical development in L&E. It is also one that is quite troublesome from the perspective of an L&E scholar who would like to see the field retain its influence. L&E scholarship, it seems, is at a crossroads. The concern is not just that L&E scholarship as we know it will move to economics departments. After all, economics departments do not currently value much of the work that is done by L&E scholars. The concern is that L&E scholarship as we know it will disappear altogether.

So far, I’ve unfairly painted a picture of formal methods in economics as ruining L&E without any upside. This may appear odd coming from somebody who does some modeling and econometrics in his own research. So let me make sure I’m being clear. Mathematical rigor and formality is not without its benefits. Modeling can help generate testable implications. Mathematics can force out into the daylight hidden assumptions and make explanations more precise in a unique way. Like any other tool in economic science, mathematical modeling can produce insights for some problems but maybe less so for others. It would neither make sense to claim that L&E left no room for the sort of detailed institutional analysis and exposition supplied by Alchian, Coase, Williamson, Klein, Demsetz, or Tullock than it would to claim that L&E should ignore the insights generated by careful theoretical or econometric work. Though I do quite a bit of econometric work in my own research, I do believe (perhaps to the chagrin of my econometrician friends) that there is still some important empirical work to be done in L&E that doesn’t necessary involve large scale datasets and statistical analysis.

Frequently, discussions of the increased formality of economics also include the observation that it has become pretty easy to run a regression with modern statistical software packages. This is also an important development in L&E scholarship and empirical legal scholarship more generally. I agree with others who have observed that the reduced costs to doing empirical work has become a problem in L&E scholarship in the legal academy. It is certainly true that legal scholars will make improper use of econometric tools from time to time. It is also true that misuse of empirical methods is less likely to be prevented by the peer review mechanism. Though on the positive side of the ledger, conferences like CELS are doing excellent work to raise the bar for empirical scholarship. Similarly, economists may fall prey to the mistake of letting the tools and methods determine which questions they answer, perhaps because the tools and methods determine what is publishable in top journals, or produce models or econometric work that is of little relevance. Neither of these errors are particularly interested to me, though I suspect the incidence of both errors has grown dramatically over time with the increasing demand for empirical legal scholarship and also changes in economic science over the past 30 years.

While I’ve focused on the costs of formalization and specialization throughout this and future posts, I do not want to be misunderstood as leveling the “physics envy” critique at economists, e.g. that economists use modeling as a thinly veiled attempt to make their work look more serious or to adopt a complex language to increase barriers to entry (an accusation most lawyers should be familiar with). For instance, a significant portion of my own research agenda involves some theoretical modeling and econometrics. As an aside, I’ve always thought that particular rhetorical critique (“physics envy”) was not very effective. Formalization clearly has both benefits and costs. The question I am interested in is how this change in economic science will change L&E as a discipline — its already started — and as we know it in law schools.

The increase in mathematical rigor in economics has translated, not surprisingly, into work in L&E that also makes increasing use of formal modeling or econometric methods. One consequence has been something I described as the “retail problem” in my last post:

L&E scholars will do work that is very relevant, and maybe even very good, but legal scholars wont know about it or care about it because of the “translation” issues associated with the formal mathematics will prevent it from being retailed to broader audiences, (the “retail” problem)

In other words, increased formalization has meant that a larger fraction of relevant and high quality L&E work has become less accessible to lawyers, judges, and policy makers. A simple way to describe this trend towards increased formalization might be as a movement toward of L&E towards the prevailing methods and trends in its home discipline. One might question whether this is a problem at all. For the reasons discussed above, I think it is. And at the very minimum, this trend has serious implications for the direction the L&E movement is headed in law schools and in legal scholarship.

The rest of this series, hopefully, will discuss various aspects of this problem. There are at least three immediate questions I think worth discussing concerning the implications of this trend of L&E generally:

(1) What will L&E scholarship in law schools look like in the future? This encompasses questions like whether informal L&E will be “crowded out” as the work becomes increasingly detached from, and presumably less valuable to, not only its intended audience but also colleagues in the law school. It also encompasses questions like whether “serious” L&E scholars will migrate towards economics departments leaving law schools behind. (Larry Solum raises this and other possible scenarios in a very thoughtful response to this post which also addresses how this trend might play out in the legal academy more generally).

(2) What efforts can be made to secure the benefits of specialization and formality while minimizing the likelihood of detachment from the traditional “legal” audience? This line of questioning presumes, I think correctly, that detachment would be a serious blow to the L&E movement and encompasses questions like: What role can law schools and other institutions play in ensuring that L&E remains interdisciplinary (not leaning too far toward its “home discipline”) and relevant?

(3) Does This Trend Have Implications for Law School Specialization? Larry Solum suggests that one possible path is the multidisciplinary model where graduate students would be trained in the basic methodologies of their discipline (the law) and PhD programs that trained in specialties such as empirical legal studies, economics, positive political theory, advanced doctrinal methods, etc. As law school specialization is a topic I’ve written about here previously (here, here and here), and a model that I’m familiar with here at George Mason, one might ask whether this trend toward formal L&E scholarship will impact schools like George Mason who have staked out a position as a school that specializes in L&E?

I plan on writing a separate post addressing each of these three questions over the next week or so.



First, David Bernstein reports on GMU’s very productive hiring season which includes the additions of Helen Alvare, Laura Bradford, T.J. Chiang, Jonathan Mitchell, Adam Mossoff, Chris Newman, David Schleicher, and Jay Verret.  

Second, Brian Leiter reports that Jonathan Klick (Florida State), a graduate of GMU Law (and of the economics department with a Phd in 2003) and former Levy Fellow, has accepted a tenured offer at the University of Pennsylvania Law School.  Congratulations to both Jon and Penn!