Thursday, May 1, 2008

The Future of the Legal Academy - Some Thoughts

Posted by Jeff Lipshaw

A recent blog post by Josh Wright on the future of law and economics has prompted responses from Larry Ribstein and Larry Solum.  In a nutshell, Wright discusses the relationship between the basic skills underlying expertise in law versus expertise in economics, and, in particular, the increasing sophistication and inaccessibility of the the economic modeling and econometric work as L&E comes to be dominated by economists rather than lawyers.  Ribstein makes a case for why there's still a place for "informal" L&E scholars (but who need to work, as Larry does, with professional economists in making technical economic claims), and Solum sees it as a springboard to a discussion about the future of the "law and ..." legal academy.

Larry Solum's view got me thinking.  He poses three possible paths.  One is a continuation of the present "law and . . . " interdisciplinarity.  Two is what he called "multi-disciplinarity," essentially the transformation of academic law into a discipline studied by those who have the equivalent of a Ph.D. in law (and thus broad-based training in all the different ways law might be approached, akin to having a Ph.D. in philosophy or political science) and not merely the professional J.D. degree.  Three is a return to the trade school model in which those aspiring to interdisciplinarity migrate to other departments or retire.

I propose the following thought experiment, just to help us refocus a little.  Imagine the professors in engineering schools found it far more interesting to focus their own research on theoretical physics.  The theoretical physicists could speak to each other in their language, but it would be largely incomprehensible to the engineering professors who didn't do theory, and completely incomprehensible to engineering students who just wanted to become engineers.  My trafficking with L&E people who go heavy on the E is that the analogy to string theory or dark matter and their empirical non-falsification is pretty apt.

Following Larry Solum's train of thought, those engineering professors would start to migrate to joint then full appointments in the physics departments.  But the engineering school's raison d'etre is to train engineers, not to do fundamental research in theoretical physics.

It wouldn't be an issue, really, if there were a sub-component of the engineering faculty who wanted to do highly specialized theory as long as the theorists could articulate some reason why the benefactors of the engineering school (largely its professional alumni) should continue to subsidize that activity. The problem arises when those funding the cash cow (which law schools are, but not because they produce lots of scholars!) look up and say:  "what the hell am I supporting?"

Which makes Larry Solum's third alternative very, very plausible, and not inconsistent with the second.  Legal scholarship is absorbed into a Ph.D. degreed academic multi-discipline that frees its adherents from the need to connect with the practice, and the training of lawyers who practice goes back to lawyers.

But does that kill the golden-egg laying goose?

The trick is allowing either alternative one or alternative two to proceed, but not to the point that teaching practicing lawyers returns to a trade school model.

But that's where the leadership comes in.   Because the goose that gives the golden egg consists of those tuition and support dollars.  So the job of academic leadership in model #2 is to articulate to the profession why the law needs pure scholars (to hearken to my roots, perhaps why even poor Jewish communities were willing to subsidize the rabbi qua scholar), and to articulate why, in return, the academy needs to be actively grateful to, and embrace, its practice-oriented benefactors.

Ironically, it seems to me that the thoughtful profession hungers for a dose of perspective, which it seems to me comes from philosophers (in the broadest sense of the word - recognizing that economics embraces a philosophical world view - no coincidence that Smith, Mill, Bentham, and Marx were cross-disciplinary!)  We had a conversation here last week with Joe Tomain about what he does in his law and humanities seminars for judges and for the profession - using Great Books and great readings to help lawyers recharge their intellectual and emotional batteries.  Why aren't we instilling that in law school, and continuing that relationship for the length of a career?  Not every practitioner will want it, but many will!

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Jeff, this is a really excellent post, IMHO. It is being quoted by Caron at TaxProf, and he asks the question in the context of tax law, where the law and economics 'divide' is acute.

Posted by: Alan Childress | May 1, 2008 10:00:53 AM

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