Saturday, January 19, 2008

More on Interdisciplinary Legal Scholarship and "Non-Elite" Law Schools

Professor Tamanaha has posted more thoughts on the subject du jour.  He is surely right that there is a crisis brewing in legal education at those schools that are charging hefty tuitions that far outstrip what most of their graduates can realistically repay in a reasonable time.  The puzzle, to my mind, is why Professor Tamanaha thinks this very real crisis has anything to do with interdisciplinary legal scholarship.  Such work is simply not "very expensive," except for some of the labor-intensive empirical work, but that stuff is more often than not highly relevant to policy makers, judges, and lawyers.  So the thought must be that less scholarly, and more practice-oriented professors would better serve the students at non-elite law schools. 

But what is the evidence that if a school has a non-scholarly but practically-oriented faculty that its graduates fare better?  I do not know of any systematic evidence, and the only anecdotal evidence I can think of is Baylor Law School here in Texas, whose graduates pass the bar exam at very high rates, and whose graduates are popular with law firms because of their "practical" skills.  But it's hard to know what explains what in the case of Baylor.  Baylor is small, and has a well-qualified student body, the best in Texas after UT on the numbers.  That their bar passage rate is often superior to UT's may mean their focus on bar preparation pays off, or it may mean that the bottom of their class is stronger than UT's coming in; we just don't know.  (UT is four times as big, and under all kinds of pressures, related to residency and politics, to admit certain students.)  And passing the bar is only part of the story about "success" of graduates.  It's still the case that UT graduates fare better professionally and financially than Baylor grads on average, and by significant margins.  (It's that "added value" of high quality jurisprudence instruction, no doubt!)

As some others have noted, it is also not clear that having more traditional, doctrinal scholars, as distinct from interdisciplinary scholars, will make graduates more "marketable," more ready to "hit the ground running."  It does seem that the real implication of Tamanaha's line of argument would be to de-emphasize scholarship altogether at "non-elite" law schools in favor of pure skills training and bar preparation.  (Who, by the way, would decide which law schools are allowed to emphasize scholarship and which not?)  Maybe students at "non-elite" law schools would be better-served in such a world.  I wonder what kinds of actual evidence we have that would bear on this question? 

Larry Solum has a quite lengthy set of reflections on the subject of interdisciplinary scholarship in law schools, and how it evolved.  I do think he misstates the role of legal realism in these developments.  He writes:

American legal realism was an embarassment to the professional school model but not for the trade school model.  Trade schools could be perfectly comfortable producing lawyers who were effective legal rhetoricians and bar politicians--even if the legal rhetoric was ultimately hollow, a mere fig-leaf that covered the exercise of political power.  But realism posed a real threat to the professional school model.  If legal formalism offered a true account of how judges do and should decide cases, then doctrinal scholarship is (at least) one valid methodology for the study of law.  But if legal doctrine is a mere fig leaf, then doctrinal scholarship has no real place in a serious research university.  It is not the business of scholars to engage in systematic deception.

In fact, of course, Realism's main impact was to change the practice of doctrinal scholarship, not to discredit it.  The lesson of the Realist critique--most obvious, I would think, in Oliphant's paper tellingly titled "A Return to Stare Decisis" (emphasis added)--was that the existing doctrinal categories were pitched at a level of abstraction from concrete facts (from "situation-types" as the Realists called them) that made them inadequate guides to the actual normative considerations influencing the decisions of the courts.  To make doctrine informative and predictive one needed to restate rules at much more fine-grained levels of factual precision:  there is, e.g. (from Oliphant's example), no general doctrine about the validity of promises not to compete, but there is a doctrine at work for promises by sellers of businesses, and another at work for promises by employees to their employers.  My late great colleague Charles Alan Wright, senior author of the leading treatise on Federal Practice and Procedure and President of the American Law Institute, thought of himself as a Legal Realist precisely because he thought of his seminal doctrinal work as making the doctrine more precise and more informative about what the courts were really doing.  So contrary to Solum's account, Realism actually has much to do not with the turn to interdisciplinary scholarship (though it played some role there) but for the evolution and increasing sophistication of doctrinal scholarship.  (I've written about related issues before in connection with the so-called "new legal realism.")

Solum's version of the evolution of interdisciplinary scholarship also attends entirely to intellectual forces, but as all Marxists and Posnerians know, it's a mistake not to consider the material forces at work as well.  Here are two that surely bear on an explanation of the growth of interdisciplinary work in law schools over the last thirty years:

1.  In the 1970s, when the academic market crashed, many folks with PhDs in the humanities and social sciences went to law school, and then ended up in law teaching.  Not surprisingly, many of them retained an interest in their original PhD fields, and so integrated that into their new teaching and scholarship.

2.  The terms of academic employment in law schools--from salaries to teaching loads to research support--tend to be much more favorable than elsewhere in the university.  This was an obvious incentive for young scholars to earn both the JD in addition to a PhD, and to pursue academic positions in law schools.  I have written about this phenomenon previously.

These two facts essentially guarantee a continued growth of interdisciplinary scholarship, barring some countervailing pressure from outside the law schools, such as a dramatic change in the accreditation process for law schools and new lawyers, or an economic meltdown which will bring the kinds of pressures on non-elite law schools that Professor Tamanaha identifies to a head, and force dramatic curricular and pedagogical experimentation in a struggle for those schools to survive.

A final comment on behalf of interdisciplinary scholarship and its value.  The common currency of what lawyers do is argument and analysis, and at least some disciplines other than law refine argumentative and analytical skills far beyond what law school ordinarily does:  philosophy most obviously, but also, in my experience, economics.  The philosophically and economically-minded (or trained) law professors are pretty consistently the smartest people I've met in the legal academy, and I'm inclined to the view that having really smart faculty is a good thing for an academic institution and a good thing for students to be exposed to in the classroom.  (I know, I'm old-fashioned.)  In addition, law at all kinds of levels--from decisions about regulatory schemes, to figuring out what proof will work at trial, to crafting the rhetoric of briefs and oral arguments--deals with human behavior and understanding what makes people "tick."  I think it not unreasonable to think that non-law disciplines concerned with human behavior (economics, psychology, sociology, arguably history, philosophy in its naturalistic guises, and so on) have useful resources for students of the legal system and for those who will work in it.  For these two kinds of reasons, it is surely not a bad thing that law schools are more interdisciplinary.  But there are real questions of degree, ones that can't be settled by fiat (e.g., designating certain law schools as sites of "interdisciplinary" work and others as sites of teaching the "trade"), and which are more likely to be settled by considerations unrelated to merit, such as the two economic/material developments noted above, or external pressures triggered by general social and economic trends.

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I think one reason our students at Baylor do well on the bar is because they are especially hard-working, and the program is most rigorous in the third year. Though we don't "teach to the bar," I think the fact that they are working so hard to the very end of law school means that they are at the peak of their game when they take the bar. Of course, they are also a very sharp bunch to begin with. At any rate, the difference in bar passage between UT and Baylor is usually within a few percentage points.

The Baylor program is probably especially good for those students going on to the most demanding jobs at law firms, in government, and in public service. There are times that I do wish we had the ability to offer some of the classes you have at UT, especially the advanced courses within specialties.

It can only be said that we don't practice interdisciplinary scholarship and teaching if you limit consideration of "interdisciplinary work" to law profs with dual proficiencies. I have co-taught and published with professors from the theater department, business school, and seminary; in each case I was drawing their expertise into the law school rather than providing it myself. As you might expect, some of this is more practically-oriented instruction than most inter-disciplinary adventures. For example, I am lucky to have Blaine McCormick, an expert in negotiation, come over from the business school to teach plea negotiation with me. On the other hand, there is room for other things as well; dramaturg Deanna Toten Beard comes to the same class to use Susan Glaspell's 1916 play "Trifles" to illustrate moral aspects of criminal practice.

At the same time, I do understand the value of Ph.D.'s, even in a practical curriculum. As a student I was Stan Wheeler's research assistant, and I never met someone so focused on legal realities, though his only advanced degree was a Ph.D. Perhaps in the end there is the need to meld the strengths of non-elite schools with those of the elite-- that is, practice-oriented Baylor has much to learn from UT, and it could be that UT has something to learn from Baylor, as well.

Posted by: Mark Osler | Jan 19, 2008 6:35:31 PM

Yes, what is missing from the critique is the consideration of whether traditional legal scholarship is of any great usefulness. Which sounds sad to say, but many years have seen law firms gripe about new graduates being unprepared.

I like to think law schools provide some valuable education, at least for motivated students, but much of what we are doing is screening. And we are screening for a certain type of intellectual logical aptitude (and the ability and willingness to develop it). While doctrinal analysis seems most directly analogous to this aptitude as employed in practice, I suspect that philosophy and scientific methods may provide a still more rigorous tests for precisely this same logical aptitude. Exposure to some of this might thereby enhance the screening (and learning) of the types of analysis used by lawyers.

Posted by: frankcross | Jan 20, 2008 9:49:10 AM

The picture in Europe may represent the flip side qua material factors.

Universities are mostly state institutions and salaries are quite identical across departments. You see much less interdisciplinary legal scholarship.

Posted by: Jeroen | Jan 23, 2008 8:04:50 AM

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