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Brian Leiter
University of Chicago Law School

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Thursday, September 1, 2011

Law & Economics, and Elite Law Schools

This paper by Hersch & Viscusi at Vanderbilt is pretty openly a brief for their PhD program in law and economics at Vanderbilt, but it contains some interesting data and clearly confirms what should be familiar:  namely, that strength in law and economics is essential to "elite" status in the modern legal academy.  Some excerpts:

The percentage of faculty [at the top 26 law schools, about 1340 faculty] with a Ph.D. degree is 27% overall, with 7% having a Ph.D. in economics, 13% having a Ph.D. in a social science discipline other than economics, and 7% with a Ph.D. in a non-social science discipline. Economics is the most frequent specific Ph.D. discipline among these faculty members. Ninety-one faculty members have a Ph.D. in economics, followed by 61 with a Ph.D. in Political Science or related fields (e.g., Government and International Relations), 50 with a Ph.D. in History, and 43 with a Ph.D. in Philosophy.  Among law faculty who have a Ph.D. but no J.D., economists clearly have a greater role than Ph.D. scholars in any other particular discipline. There are 23 faculty members who have an economics Ph.D. but no J.D., in contrast to the combined total of 31 for all other social sciences Ph.D.s and 11 for all other non-social sciences Ph.D.s. Furthermore, economists without a J.D. have a greater representation among the highest-ranked law school faculties than scholars with doctorates in other fields who have no J.D. Twenty-five percent of faculty with an economics Ph.D. do not also have a J.D., while only 16 percent of those with doctorates in other fields do not also have a J.D.

As the authors also show, high 'rank' as a law school overall correlates with strength in law and economics.   Still, I wouldn't encourage anyone thinking of an academic career to get a PhD in "Law and Economics" at Vanderbilt, notwithstanding Viscusi's great distinction in the field.  For all the successful JD/PhDs of recent vintage in this area (think Spamann at Harvard; Hubbard, Malani and Miles at Chicago; Hemphill and Morison at Columbia; Listokin at Yale; Wickelgren at Texas; among many others) had JDs from one of the usual law suspects (Yale, Chicago, Harvard, Stanford) and PhDs from one of the usual economic suspects (Chicago, Harvard, Stanford, Princeton etc.)    Law and economics still rules, but that now means a top JD and a top economics PhD, not a PhD in a heretofore unknown degree program.

So why did economic analysis of law triumph in a way that no other interidsciplinary movement, before or since, has?  (Some readers old enough may recall Morton Horwitz's spectacularly wrong prediction in 1980 that law & economics had already "peaked" as the latest "fad" in the legal academy.)  I can think of three reasons why economic analysis of law has had such staying power, though I've no idea about their relative contributions:

1.  Its early proponents and later practitioners happened to be quite smart, and smart in the way that the best lawyers are smart:  analytically and dialectically acute.  Lawyering at the highest levels is part rhetoric and part analytical and dialectical skill.  Richard Posner, who did not invent economic analysis of law but is most responsible for its triumph, is a lawyer at the highest level, and as he deployed economic tools of analysis across legal subfield after legal subfield, this put enormous pressure on the rest of the legal academy to respond.

2.   L&E offered an apparently robust and clear analytic framework for thinking about problems that lawyers and law professors had already been thinking about, but mostly on the basis of armchair hunches and speculations:  questions like, "How will this rule affect the behavior of prospective litigants?" and "Will this rule really deter the bad outcomes we're worried about?"  The lawyer/economist had a theoretical framework for answering the question, whereas the traditional lawyer often did not.

3.  L&E benefitted from a dramatic shift to the right in the political culture of the United States that began with the election of Ronald Reagan in 1980.  As the public political culture veered to the right on economic matters--largely on terms suggested by or congenial to economic analysis of law in its original version--it is hardly surprising that the legal academy followed suit.  (Only in Fox News fantasies, do the universities occupy some mystical realm insulated from the broader culture.)

It is striking, of course, that other legal cultures, including common law cultures like England's, look askance at law & economics, which has had little impact outside the U.S..  There are various possible explanations, some of which may not be at all specific to economic analysis (I'll focus on the English case, the one I know best).

First, law is an undergraduate degree in England, meaning that kids around the age of 16 make a decision to focus their studies on law, often at the expense of learning much about other disciplines.   If, from the age of 17 or 18 (when you begin university study), you learn to take legal doctrine very seriously, it is perhaps not surprising that as a professor at 40, you continue to think the same way.

Second, the judiciary in England operates on a civil service system, with promotions based on peer evaluations, which probably imposes a kind of doctrinal discipline, which is unknown in the U.S., where federal appointments are now, thanks to Reagan, thoroughly politicized, and state judges are necessarily political animals because of the electoral process.   Economic analysis of law always shared with American legal realism skepticism about the adequacy of doctrinal rationales for the decisions of the courts, but it may be that there are jurisdictions in which such rationales really are explanatory because of the way judges are selected and advance.

Third, we can not underestimate the extent to which the public culture of the United States--with the extreme dominance of "business" values, such that it is the only civilized capitalist country in which, for example, a beanbrain like Ayn Rand is taken seriously--plays a role.  Economic analysis was always most powerful in the context of actors who, in virtue of their socio-economic position, really did think only in terms of monetary advantage:  think the transformative, and probably salutary, impact of economic analysis on antitrust law.  (Back in the 1990s, Milton Handler, the giant of "doctrinal" antitrust law in the mid-20th-century, remarked to me wistfully, "Richard Posner destroyed my life's work."  He wasn't at all bitter about it, interestingly.)  The further away from that core context of business transactions L&E got, the more ridiculous or offensive or implausible it became.   Public cultures like England's, in which there were actual anti-capitalist political parties contending for public office, and in which egalitarian values loomed large on the political landscape, were, unsurprisingly, less receptive to an account of law which depended on the assumption that everyone is an instrumentally rational maximizer of his largely selfish satisfactions.  In some respects, the English were no doubt benighted about the "rational" behavior of businessmen in capitalist environments, but in other respects their background cultural knowledge allowed them to recognize the bizarre explanatory distortions wrought by a theoretical perspective in which every one was supposed to be a rational calculator of advantage and disadvantage.

http://leiterlawschool.typepad.com/leiter/2011/09/law-economics-and-elite-law-schools.html

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