Usha Rodrigues thanks me for making her look like a moderate:
Steve Bainbridge is not afraid to stake a claim. Yesterday he took aim at both empirical legal scholarship and the law & PhD. folks. How not to win friends and influence people at a law professor conference, indeed. ...
I've done some empirical work, and I see real value in its insistence on seeing what's actually out there--how things work in the real world. ...
Still, we are law professors. Law must come first. I remember in my earliest days in the academy listening with disbelief to a fellow newbie law prof: "I just want to do empirical work, and law pays better than economics. I don't care about the law at all." He laughed. I didn't.
In the comments to his post Steve laments that "the legal academy is not producing scholarship that is relevant to the bench and bar or that our graduates (especially at the T14 schools) are coming out of school better versed in theory than professional skills." This is a problem. ...
To put it bluntly, Harvard/Yale/Chicago/Columbia/Stanford can hire whoever they want, because they're in the business of pedigreeing elite students. They can hire professors who haven't practiced law and who write about theoretical topics. It doesn't effect their students' job prospects. All the other law schools have lemming-like followed their lead, accepting without question that the way up the USN&WR rankings is to look as much like possible as the T5. That worked fine during boom times, but in this legal market, it seems a lot like walking off a cliff.
Henry Manne sent along this email:
I saw (before I lost it in cyberspace) your Facebook remark about Empirical Law and Economics. I could not agree more. In fact some weeks ago I wrote a letter to Bob Scott and Doug Baird complaining about the agenda of the ALEA meeting. I'll attach it for your perusal (and agreement). But I think that this discussion hides a deeper problem that I have written about before. I don't know whether you saw this paper, now published in the International Review of Law and Economics, but I'll attach a copy for your consideration and comment if you feel so inclined. My story only goes through the use of law school accreditation by the bar to help cartelize their industry. One could be sure that at that period of development the bar was only interested in vocationally well-trained young lawyers, certainly not economists or sociologists. Hence the old—style curriculum. But it is also clear that the bar did not succeed as had the medical profession in this use of the accreditation device and, I am sure, not long after that was recognized, the bar substantially lost any aggregate interest in what the law schools were doing. What we have now, as I described in the paper, is the result of the inmates (the faculty) taking charge of the asylum. Please note, I do not spare L&E, but I see nothing wrong with having a few schools that might specialize in highly intellectual fare, for the few lawyers who might like it.
In the letter to which Henry refers, he wrote that:
Now bean counting seems more important than improving legal standards. Not only does this do great harm intellectually in terms of opportunities lost, it also threatens to make law schools into third-rate economics departments - or worse. (My emphasis.)
And an email from Daniel Sokol:
The law and econ/law and finance formal modeling revolution may have created a gap in partnership, LLC and corporate law. However, in antitrust law and econ have moved hand in hand at least since the 1970s. Econ articles get cited by the Supreme Court and law profs write (occasionally) in peer review econ journals, mostly with economists. One of most important contributions, in the American Economic Review no less, was an entirely UCLA product - John Wiley (law), Mark Ramseyer (law), and Eric Rassmusen (econ) wrote "Naked Exclusion" in 1991. It still gets cited by US courts, briefs, DOJ Antitrust, the FTC and foreign governments in documents around the world. Two years ago I participated in antitrust judicial training with John in Beijing. All of the agency people in China were familiar with his article some twenty years later and not merely because of the racy title. More recent econ work by law profs (I am thinking of work by Abe Wickelgren and Einer Elhauge) covers similar ground to Naked Exclusion and has placed in econ journals. The Antitrust Law Journal, our top field law journal, is peer reviewed and has a mix of papers by antitrust law and econ profs (and practitioners). Articles from the ALJ are more heavily cited in US Courts than the Harvard, Chicago, Columbia or Yale law reviews.
In November I was asked to testify before Congress on cartel enforcement based on a forthcoming empirical/non doctrinal piece in the Journal of Law and Econ. I couldn't because I would have missed class. I can give you lots of similar examples based on people's empirical work.
Our version of you in antitrust (the person who has used economic analysis most to shape case law - I mean this with great respect to you both) is Herb Hovenkamp. Herb has moved antitrust doctrine in the direction of economic sense more than even Bork or Posner. Breyer has stated that a citation to Herb's treatise is akin to a Circuit Court decision. Herb has even been recognized by DOJ Antitrust for his lifetime of scholarship to the field - see http://www.justice.gov/atr/public/press_releases/2008/235516.htm.
One final thought on the relative importance of antitrust profs to practice. Many antitrust profs have taken on formal consulting roles in law firms as Of Counsel or affiliated experts in economic consulting firms at one point in their careers (Compass Lexecon, CRA, NERA, etc.) and many are currently active in this area. The market thinks that we have value. Consulting also reinforces our teaching and scholarship as we have a better sense of what is happening in practice.
I concede that the original post was a sweeping over-generalization, in the sense that there are clearly some fields where bean counting is essential. Antitrust is probably one. So are disparate impact civil rights litigation, dumping, and so on. My complaint, however, is that (1) too many people are treating bean counting as the only legitimate methodology, (2) too many people are ignoring problems that can't be answered by bean counting, (3) too many people are doing bean counting for the sake of bean counting. And my biggest complaint is that these trends are exacerbating the divide between the academy one the one hand and the bench and bar on the other. In today's market, that divide is simply unsustainable (at least for those of us who aren't Harvard and Yale).
Finally, a note from a very junior faculty member who wished to remain anonymous:
Dear Professor Bainbridge, I ... wanted to thank you for your anti Law &___ comment. ... I am in this profession because I don't want to talk to economists and run regressions. Law professors are selling themselves short if they just want economists to take them seriously, which they will not do because they are too silo-ed and insular. There's no need for us to have an inferiority complex--especially as against economists whose discipline I think still needs to be justified. I have had so many people tell me that I need to do empirical work if I ever want to get hired at a top school but I refuse to. I'm proud of my work and I've been able to speak to large non-academic audiences and plenty of policymakers without running a single regression. So thanks for saying that. I'm not saying that no one should be doing it ..., but for those of us who aren't interested, it's nice to have some validation that we aren't completely irrelevant.
One of the joys of my present state of life is that I've got no interest in moving to a different law school (other than the occasional podium visit in some lovely garden spot) and the protection of tenure at UCLA, which gives me a freedom to say things junior faculty who are still trying to climb the greasy pole would never dare utter.
So I'm going to keep fighting for law to come first, second, and third.