Thursday, May 3, 2007
Posted by Jeff Lipshaw
Over at Concurring Opinions (now a limited liability company), the always interesting and often provocative Frank Pasquale offers up some thoughts on normativity posing as objectivity, particularly in law and economics scholarship, highlighting James Hackney's book, Under Cover of Science: American Legal-Economic Theory and the Quest for Objectivity. I haven't read Hackney's book, but according to Frank it takes a CLS-approach to the implicit normative assumptions underlying law and economics. But you don't need to be a crit (a) to believe that there is something either tautological or self-evident in the welfare over fairness position (or is it "welfare is fairness"), or (b) to criticize reductionist approaches to making sense of the world. Over at Legal Theory Blog, Larry Solum has posted the abstract of Kim Ferzan's new piece "Some Sound and Fury from Kaplow and Shavell" (as well as a plug for Larry's own Virginia Law Review article, "Public Legal Reason").
I thought this excerpt from Frank's post was interesting. "Toward the end of the book [Hackney] tentatively points a way forward for the discipline, urging greater humility about theoretical claims and greater reliance on empirical work. In other words, the cure for scientism is genuine science." That's a mouthful and worthy of some unpacking.
I was in Bloomington the day before yesterday, paying personal homage to my new dean, Fred Aman, and happened to pass the office of that non-pareil empiricist, Bill Henderson. I banged on the door, was admitted to the statistical sanctum sanctorum (where, I'm telling ya, you can cut the heteroscedascity with a knife), and we got to be talking about the value of empirical work in establishing whether there is a problem for the theorists to be working on. As Carl Hempel (right) and others have pointed out in the philosophy of science, the scientist makes a pre-empirical theoretical leap in creating the hypothesis and constructing the experiments to test it. That probably doesn't raise significant issues of the normativity and objectivity in the method by which we study physics or geology or botany. We really do stand apart from the thing being studied. But I now cannot help but keep coming back to the problems of self-reference when we are studying ourselves. How sharply can we draw the line between the "is" and the "ought" when the scientist is part of the group being studied?
Well, in any event, I am looking forward to seeing Frank's promised piece!