June 20, 2014
The "Law and" Question
Posted by Usha Rodrigues

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'm not singing Steve's tune, but I will hum a few bars.  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.  Especially in the corporate and securities fields, we can count things and measure the effects of changes in the law.  To ignore that ability to measure and test law's impact seems foolhardy.

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.

There does seem to be a "race to economics" in ELS these days, to see whose works is most rigorous--meaning most like that of real economists.  I think "Law and"s --including economics PhDs, but also myriad other disciplines--can contribute to a law faculty, but their value is that  legal training enables them to pursue questions that would not occur to straight PhD's.  One of the projects I'm working on is a hybrid constitutional law, securities law, political science piece.  It may all come to naught, but it's an inquiry a political scientist wouldn't make,.  That's my comparative advantage as a lawyer.

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.  Even than for the general law prof, for  "Law and"s I  think that practice is vital.

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.

 

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