Tyler Cowen claims the "quality of intellectual debate is higher in the economics profession" than in the legal academy, which he attributes to the dominance of peer reviewed journals in economics but not in law. In response, Will Baude opines that the legal academy has "post-publication peer review rather than pre-publication. Sure, a few overambitious 2Ls decide whether a professor's work goes into the West Boise Journal of Law and Footnotes or the Iowa Law Review, but tenure committees and hiring committees are largely filled with other professors, who presumably know how to recognize bad scholarship."
They're both wrong.
I read a lot of economic scholarship in my work and the days when folks like Coase or Alchian or Demsetz wrote outstanding narrative analyses are long gone. Instead, most of what I read these days in economics fairly could be called "recreational mathematics." There's so much game theory and other types of formal modeling - most of it obtuse or otiose.
Seting aside the fixation with differential equations, Donald McCloskey (an interesting character, but that's another story) made an important set of points about the difference between legal and economic scholarship in his article "The Lawyerly Rhetoric Of Coase's The Nature Of The Firm." McCloskey contrasted Ronald Coase's "British, empirical, and non-mathematical approach,' which is altogether scrappier and less formal, with the prevailing approach in economics "brought to perfection ... by Paul Samuelson. Assume a maximizing individual, self-aware of his constraints and tastes, and proceed. You will then know what you mean. Many economists cannot now understand an argument unless it is expressed axiomatically. ... When George Stigler started, in the 1960s, calling one of Coase's propositions in the celebrated article of 1960, "Coase's Theorem," Paul Samuelson snorted, "Where's the theorem?" Where is the axiom system from which an if-then statement can be rigorously derived, the only way of knowing what we mean?"
McCloskey goes on to explain:
Coase's core rhetoric ..., as becomes apparent after a page or two, is not really Cartesian or Scientific or Treatise-like. It is lawyerly. That's the main point about Coasean rhetoric: it take as much from the law school as from the department of economics, and promises therefore a new style of economic science. ... One lawyerly feature of his rhetoric, for example, is its disputatiousness. Coase repeatedly and firmly rejects this or that line of argument, after thorough enumeration of the possibilities (called diallage in Greek rhetoric).
Finally, in a point I find particularly damining, McCloskey opines that:
Another lawyerly (and British) feature of Coase's rhetoric is that facts or alleged facts of the world are brought in repeatedly to settle matters. One might imagine that economics would appeal to facts anyway, as a science. But economists are social philosophers as much as social historians, and have developed various rhetorical excuses to stay on the blackboard as long as possible.
Hence, McCloskey concludes:
Positive economics was useful for a time, up to about 1965, in forcing economists into a narrow program worth attempting. But it was, and is, a sort of voluntary imbecility, as the crystallographer and philosopher Michael Polanyi described the 3" x 5" card theory of scientific method. It was the bad rhetoric that only a narrow range of reasoning is needed, because only the narrow reasoning is properly scientific. Under such a methodology, it does not matter whether an argument is rich, relevant, or persuasive. We are to be nourished on certain scraps of utilitarian ethics, certain demonstrably irrelevant statistical tests, and certain rules of evidence enshrined in the oldest handbooks of positivism and behaviorism. The rhetoric has had a disastrous effect on scholarly standards in Chicago School economics, and if it had been even more strenuously enforced, would have made Ronald Coase's career impossible.
The essay is 13 years old, but to my eye remains just as true today.
Now, you ask, why is Will wrong? One very simple reason, which I suspect he'll find reassuring when he pursues a career in legal academics: At 99.99% of American law schools, tenure is a birthright. Or so I once heard a former Chancellor of the University of Illinois complain.
