My New Year's Eve roundup of blog highlights from 2010 included yet more on ELS (which, by the way, isn't even a coherent category, but that's another story), though given the timing it apparently was missed by some interested parties. So herewith the relevant portion:
Anyone who doubts the power of this blog (I know you're out there, and you will be smitten in due course!), take note: a blog post in the dog days of summer on "empirical legal studies" has now resulted in an actual scholarly article in rebuttal! The author is Cornell's Ted Eisenberg, intellectual leader and innovator in empirical studies of the legal system, and the only "concerns" about ELS to which he responds are those in my blog post (see p. 7 of his article). Professor Eisenberg makes the utterly shocking allegation that "blog posts...often constitute unreflective, on-the-spot reactions provided to promote or provoke discussion," but we shall put that startling revelation to one side. The truth is I've reflected a lot about ELS, over the course of dozens of hours of job talks and workshops by ELS scholars over the past five years. Professor Eisenberg misunderstands, alas, my worry about the "skill level" of ELS scholars: no one doubts that many ELS scholars have strong empirical, statistical, and experimental skills, of the kinds one would expect from PhDs in various social science disciplines. (The epistemic robustness of these social science fields is a separate question, but we shall also bracket that issue.) My claim was that the,
analytical- and discursive-skill level of ELS scholars appears to be, on average, low, or at least lower than the typical law & economics or law & philosophy interdisciplinary scholar of yesteryear. This isn't surprising, given that the genre rewards technical skills related to number crunching and data analysis, as well as research design, rather than smarts on your feet, the ability to draw conceptual distinctions, or construct and deconstruct arguments. But the latter intellectual skills are the ones needed in law, both in thinking about law and in teaching law, not the former. Perhaps this is also why discussion of empirical papers typically follows the same tedious pattern of wondering how one controls for this-or-that variable, with the presenter showing, cleverly, how s/he already controlled for it, or admitting that s/he didn't, so that this is an issue for future work, etc.
Analytical and discursive skills ("smarts on your feet, the ability to draw conceptual distinctions, or construct and deconstruct arguments") are different intellectual skills than experimental design and statistical analysis. But analytical and discursive skills are the ones we are honing in our students from the first year of law school onwards, and they are the skills that law professors need if they are to discharge their tasks. This is why economists and philosophers fit so naturally into the law school world, because both disciplines require those kinds of intellectual skills. To be sure, the high end of ELS scholars--like the Cornell folks, or my colleagues Malani and Miles--are both skilled in social scientific techniques and analytically acute and discursively agile. But the parade of over-sold ELS job candidates who are sometimes neither, and rarely both, is long indeed.
UPDATE: An error of omission on my part: Professor Eisenberg also offers a response to Josh Wright's earlier and informative comments on ELS, though I'm not sure he responds adequately to them either. But I trust Professor Wright will take up the matter in due course.