Argument & Authority
posted by Frank Pasquale
One part of the intro to Kennedy & Fisher’s Canon of American Legal Thought really hit me today:
Law students struggle to understand the relationship between “the rules” and the vague arguments that lawyers call “policy.” Should “policy” begin only in the exception—when legal deduction runs out—or should it be a routine part of legal analysis? If the latter, how should lawyers reason about policy? What should go into reasoning about “policy”—how much ethics, how much empiricism, how much economics? Which of the arguments laypeople use count as professionally acceptable arguments of “policy” and which do not? Which mark one as naïve, an outsider to the professional consensus? What is it about policy argument that makes it seem more professional, more analytical, more persuasive, than talking about “mere politics”?
I think I might begin my administrative law class next term with those questions at the forefront. Administrative Law is occasionally derided as a Seinfeld class–a class about nothing–because the precedents seem so malleable and ad hoc. All seems to turn on an increasingly complicated jurisprudence of deference. But the agencies are often getting deference because they are presumed to have a better grasp on “empiricism and economics” than nonspecialist judges.
The problems raised by K&F go beyond law into flelds like economics itself. Consider EconJournalWatch’s recent issue examining the role of math in top-level publications. Sutter & Pejsky ask “Where Would Adam Smith Publish Today?,” and note a “near absence of math-free research in top journals.” A bit from their conclusion:
The emphasis on mathematical modeling and regression analysis imposes a toll on the profession. Adam Smith spent his early years studying literature, history, ethics, political and moral philosophy, and then teaching literature and rhetoric to college students. Today to succeed in the profession he would need to study model building and regression analysis well enough to publish in “good” journals, and he (and the rest of us) would have lost the value added from the studies displaced. The same would apply for many Nobel prize winners who published their work in an economics profession less tied down to model building and regression analysis.
Sutter & Pejsky, along with many other interesting authors in EJW, are arguing for a more pluralistic approach to economic authority. I hope to show my students in Admin the multiple sources of authority for agency decisions…and how that complexity, while occasionally frustrating and obfuscatory, can make the resulting decisions stronger, like a Peirce’s cable.
May 16, 2007 at 5:33 pm
Posted in: Administrative Law, Articles and Books, Economic Analysis of Law, Empirical Analysis of Law, Law and Humanities, Law School (Teaching), Philosophy of Social Science
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Responses (6)
Kristian Koerselman - May 17, 2007 at 11:58 am
Wasn’t Adam Smith more of a political scientist than an economist? Or even a philosopher?
I think that we should conclude that a new science (economics) has developed, rather than to complain about a conceived methodological shift within economics. After all, doesn’t the biggest difference between economics and other social sciences lie in its use of mathematical models?
Patrick S. O'Donnell - May 17, 2007 at 6:57 pm
Deirdre McCloskey has been making this argument since at least 1985 when, as Donald N. McCloskey, he published The Rhetoric of Economics (Madison, WI: University of Wisconsin Press). This was followed by two works: If You’re So Smart: The Narrative of Economic Expertise (Chicago, IL: University of Chicago Press, 1990) and, my favorite, Knowledge and Persuasion in Economics (Cambridge, UK: Cambridge University Press, 1994). Well over a decade later and it seems the argument has still fallen on deaf ears. And what is perhaps even more remarkable and telling, Sutter & Pjesky don’t mention McCloskey. Shameful.
Patrick S. O'Donnell - May 17, 2007 at 7:14 pm
Smith was first a professor of logic, based on his public lectures on rhetoric and belles lettres, and later became the chair of moral philosophy at Glasgow University. His time as a tutor after resigning his professorship and subsequent pension allowed him the time to do the research and writing that resulted in An Inquiry into the Nature and Causes of the Wealth of Nations in 1776. Smith (and Marx for that matter) better represent what the profession might aspire to, rather than what it has come to distance itself from.
Kristian,
You might read McCloskey to see precisely why the reliance on mathematics (of a certain sort and as abusive rhetoric) has truly become a problem for the profession.
Patrick S. O'Donnell - May 17, 2007 at 7:56 pm
I just learned that McCloskey is an ‘Editorial Advisor’ for EconJournalWatch, so I suppose I’ll have to withdraw the ‘shameful’ remark above: perhaps she put them up to it!
Kristian - May 18, 2007 at 1:47 pm
I’ll take a look at the book. Thank you.
Kristan Koerselman - May 18, 2007 at 1:48 pm
Books, that is.
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