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Research Agendas

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28 Responses

  1. Jason,

    I think your criticism here is a bit over-the-top. I don’t doubt there is some truth to what you’re saying about “agendas,” but let’s look at your examples: why can’t they simply be re-framed as “hypotheses,” that is, one has an inkling, an intuition, a hunch that such-and-such is the case, which in turn is amenable to formulation as an hypothesis. Now I’m assuming that when the research is conducted, and such research is being reviewed by others, hopefully with some kind of mentoring in place (perhaps these are untenable assumptions), that the researcher will remain open to the possibility that her hunch or hypothesis was utterly or partly mistaken, perhaps in formulation or in conclusion. In other words, there is a frankness to the what you term an agenda that may be missing from an hypothesis designed to address some gap in the literature or to have the appearance of neutrality and objectivity when in fact the researcher has simply learned to avoid “agenda appearance” and is adept at scholarly pretense. Indeed, those with agendas are probably those with the most passion, with a clear sense of what matters, with avowed commitments, and so forth that, over time, can be canalized into productive and creative scholarship.

    At any rate, the methodologies (notice the plural form) of academic inquiry are many and hotly contested and thus one (would-be) scholar’s conception of acceptable methodology may be so much mush and nonsense to another (would-be) scholar, each in possession of the requisite academic credentials. I discuss some of the issues here in a comment to a post by Jonathan Simon at PrawfsBlawg: “Four Reasons Why Empiricism Won’t Fade Away This Time”–Please see: http://prawfsblawg.blogs.com/prawfsblawg/2009/02/four-reasons-empiricism-wont-fade-away-this-time.html#more

    And I’m a bit puzzled as to why you are troubled by the theme of the conference, with its stated intention to treat the theme of “inequality.” What’s wrong with that? It’s a topic in the literature of economics (especially welfare economics), sociology, political science and political philosophy, as well as legal theory and philosophy of law, and one addressed by some of the most fertile minds from these fields of intellectual inquiry. It seems more than a tad tendential on your part to dismiss it as a “slogan.”

    The message, in other words, may not be that “promoting an agenda is what legal scholarship is all about,” but rather that legal scholarship deals with issues that have been within the purview of the social sciences and philosophy for some time now, and young scholars that have specific values and commitments should not be afraid to see how those values and commitments relate to themes, topics, and questions in existing fields of inquiry in general and the legal academy in particular and, in the end, how they play out in the real world (so to speak).

  2. A.J. Sutter says:

    Patrick, I agree with you in part, but I think you’re maybe too harsh. I agree that the conference slogans seem pretty non-committal, unless one thinks part of lawyers’ research agenda should be to contest the category of ‘inequality’, or question whether the world is changing in some way. As I read “Law, Power, and Inequality in the 21st Century,” it isn’t clear to me what stand is being taken on inequality — maybe it’s that law is the best way to remedy economic inequality, or that there is inequality in the provision of justice, or both of these things, or something else. Prof. Mazzone’s attitude may be based more on his knowledge of a context outside the four corners of the title, so to speak — but that doesn’t seem like a good basis for criticizing the “slogan” per se.

    As to the research agendas, though, I think he has a good point. E.g., please compare these simple amedments: “I plan to research whether the political process systematically disadvantages members of minority racial groups and, if so, whether voting laws need to be changed.” (Deletion of ‘systematically’ is an additional option here.) Or: “In this project, I will research whether bloggers intimidate women and, if so, consider possible ways to protect women from such intimidation, including whether the First Amendment should not protect certain kinds of blogging.”

    As for your comment defending “young scholars [who] have specific values and commitments,” the burgeoning of the field of law and economics in the past quarter-century, at least in the American academy, is a vivid and unfortunate example of what happens when an insufficiently critical attitude is taken before those commitments have been made.

  3. A.J.,

    I don’t see why the title of the conference need be read as in any way taking a stand: that’s the point, the title doesn’t take a stand and seems open to all manner of proposal and inquiry.

    Your amendments illustrate what I apparently failed to say but was trying to say about turning the proposals into hypotheses (I should have spelled it out as you did here).

    I suspect that those socialized into “law and economics” were rather impressionable young minds *without* strong values and commitments and their schooling served as an indoctrination to the genre, made easier by the ideological cultural ethos in the states (i.e., there being something on the order of an elective affinity between the two).

    I’ll grant the possibility that Jason may have an insider’s perspective I’m not privy to.

  4. A.J. Sutter says:

    We agree that the conference title doesn’t seem to take a stand — I think Jason’s bringing in extratextual mishugas here.

    On turning proposals into hypotheses, I think Jason’s point, with which I agree, is it’s better to be explicit. And it’s easy to be. You may be right that some people retain an open mind, but lawyers, of all people, are trained to identify conclusory language, e.g. in an evidence course. I agree with Jason that examples like the ones he cited are, at least, sloppy and inappropriate.

    On L&E socialization, I think you’re begging the question of whether they were “scholars” at the time they were socialized. All commitments are socialized in some way, or have some point before they come into being. I suspect that the socialization process occurs sometime between undergrad econ courses, if any, and the third year of law school. Students don’t usually become scholars, though, until at least a couple of years after graduating from law school. (I’m excluding notes and comments in law reviews, which are also written by folks who don’t go into academic careers.) By that time, I think it’s fair to call their attitudes “values and commitments”. But to take your point, I do find it scary that so many students’ first exposure to economics may be to the very peculiar version taught in law schools. (I myself never took an undergrad econ course, so but for a few years I might have been one of them.)

  5. sick and tired says:

    Patrick: you have your own blog, right? Could take your musings on subjects you know nothing about to your own blog? Just read stuff here and respond there. Interested parties will check your blog regularly, I am sure. Seriously, enough already! Jason’s post was interesting, provocative, and involved a fair bit of inside baseball. You know nothing about the issues involved here, but you have already destroyed the comments thread. Nobody wants their comments buried in this inanity.

    Jason: I hope you find the way to get rid of this spam and generate a meaningful discussion here. This is a hot topic in the middle of the appointments season! BTW, I have exactly the same reaction to the AALS and law-soc “themes,” and I’ve long thought that an organization’s intellectual firepower is inversely related to its tendency to put out “agenda.” It’s always been fun to compare law-soc and AALS to ALEA and CELS.

  6. Dear, sick and tired, fearful and cowardly:

    Your touching concern for Jason’s well-being makes you the blogging equivalent of Estelle Costanza from Seinfeld, but I think Jason is perfectly capable of speaking for himself should he wish to. Indeed, he’s perfectly free to respond to, or ignore, my comment, which was neither snarky nor impolite but sincere and well-meaning.

    And you are wrong to assert this is a subject I “know nothing about,” for having read the programs, downloaded and read the papers, and read not a few discussions at various blogs of all sorts of conferences by those having attended (some of those while attendeing), both law and non-law (and having attended some of the latter sort), I do know some things about such conferences, and certainly enough to be equipped to comment on this particular post. Your attempt to lead a “circle the wagons” defense reeks of a guild-like insecurity fueled by a country-club mindset. It’s all-the-more mean-spirited for being a thinly veiled ad hominem attack on me, rendering your comment the antithesis of recent attempts to both formally and informally establish minimal blogging norms in the legal blogosphere.

    The fantastical if not hysterical claim that “I destroyed the comments thread” with one comment on the post and a reply to A.J. exquisitely qualifies you to speak with authority on the subject of “inanity,” and hyperbole as well. The phrase “blogging thread” is a metaphor and is thus not meant to be taken literally, in other words, it is not so fragile that my comment was capable of breaking or “destroying” it. But comments like yours, in which a blogger is compelled to defend his good name, do serve to take a thread off-topic and exemplify the true meaning of “spam.”

    I suspect Jason and any would-be commenters have the intelligence and will to comment on the substance of the post, which is what I did, and thus to ignore our exchange and directly engage the topic at hand. And I hope they do so.

  7. “It always surprises me when intelligent, educated people committed to an academic career have managed never to learn how to frame a research topic.”

    With the diversity component among current law professors being, for the most part, skin-deep, I suspect that a lot of prospective professors – specifically those that may not yet recognize the awesomeness of our current President and based on their law school experiences – may think they can’t be “intelligent, educated people” AND have “an academic career”.

  8. TRE says:

    I find the level of scholarship in legal academia pretty low in general.

  9. anon says:

    Jason: consider the blogging of one of your co-bloggers, who consistently reasons backwards from his preexisting conclusions, and admits that he blogs to “preach to the converted,” not to persuade anyone who disagrees with him. Then consider whether law school academic culture encourages such attitudes, so long as it is done cleverly and with many footnotes.

  10. aspiringprof says:

    I read this blog every day, and find it very insightful. But when I want to read comments about research agendas and other substantive follow-up to Jason’s post – and instead find a certain person (again) posting long-winded substantiations for his musings – it is frustrating indeed. Back to research agendas anyone? As an aspiring scholar, I’m quite interested in this topic.

  11. Hauk says:

    aspiringprof -

    Seconded.

  12. sick and tired says:

    Jason: I propose you remove all comments from this post and re-post it at the top of the blog again. I’d like to discuss agendas also. People will not be reading through the junk of the first 10 comments here to discover that at the end, there is a real discussion of agendas. This thread is dead.

    Patrick: you have been given notice, and you can safely repost your comments on your own blog. And stay there. Please. Make all your comments there and leave us alone. Even if you think we are just scared guild-protecting elites chewing on our petty issues — say it on your own blog. We want our own space on the web. You already have yours.

  13. Sick and tired, scared and cowardly,

    Your “notice” means nothing whatsoever to me. I can post comments wherever I’m free to post comments and will continue to do so.

  14. As someone very close to acquiring some methods (in a Ph.D program), I can say that assuming conclusions in research is hardly a problem limited to legal academics. True, there might be something in the nature of legal education that makes it more likely amoung legal academics, but the problem is entrenched and widespread across disciplines.

    Some of the legal pragmatists had some interesting ideas on this topic. Both Dewey and James thought absurd the quasi-formalist idea that one begins with premises and questions that one proceeds to evaluate before reaching a conclusion. Moreover, a long list of philosophers of science have argued that the notion that what scientists actually do — despite what the method indicates — is much closer to the model Dewey and James insist more accurately describes the way human beings practice the production of knowledge.

    This said, I am not suggesting that one should abandon all pretense to intellectual honesty and doggedly pursue conclusions one is already convinced of. It is probably better, at least for good faith, to remain as open as one can to the possibility that one’s own cherished beliefs and hypotheses are mistaken. But there is some reasonably strong conceptual and empirical evidence that that habit is not one widely internalized among academics across disciplines.

    This is partly why I tend to think engaging the implications of fallibilism and skepticism are vastly more important than are often surmised outside of a relatively small cadre of philosophers.

  15. JP says:

    I somewhat agree with Patrick. The research agendas you state aren’t that far from attempts to state falsifiable hypotheses.

    On the other hand, I wonder how common it is for a research agenda to be dropped in the face of contrary evidence. And of course, when an agenda is dropped, there is no publication announcing the contrary conclusions.

    However, as Daniel notes, this is likely a problem with all disciplines, including hard sciences (and I imagine it is substantially worse in some social sciences than law).

    (My “research agenda” for this thread: sick and tired = aspiringprof = A.W.).

  16. Jeff Lipshaw says:

    A colleague today asked me “how is your research going?” I try never to call what I do “research.” I read, I think, I write, I theorize, I try to make sense, but I don’t think I research in the sense of doing empirical research, or historical research, or scientific research. There’s research in the sense of linking what I do to some pre-existing line of thought, and satisfying myself that what I’m writing is an advance (or something like that) on what has come before.

    I think there’s a philosophy of science and history of legal education issue running through this. Steven Smith captures the issue in his wonderful Law’s Quandary: lawyers and law professors regularly refer to the “law” as though it is a discoverable thing. In other words, it has a beingness. Well, if it has a beingness, then we ought to be able to do research into what the being is, and it’s no surprise that’s exactly what we train lawyers to do in “legal research and writing.” At Michigan, the law library was in the Legal Research Building (is it still called that?) and my image is that, as to any question of law, the answer must be in there somewhere. As Smith observes, the style is to “research” the law, and then argue that “the law” dictates a particular result. That’s the antinomy between the concept of an objective justice and the kind of instrumentalism (Law as a Means to an End) that Brian Tamanaha has written about, and the Europeans like Luhmann and Teubner have critiqued in the autopoietic thesis.

    To Daniel’s point, even when “research” is directed to the wholly empirical or potentially falsifiable, the source of the hypothesis to be tested is something of a mystery, and what the contemporary and friend of Dewey and James, Charles Peirce, termed “abductive reasoning.” That is, it’s the leap by which we propose a rule that explains the data, and which becomes the hypothesis.

    I think the “problem” is the sense that legal scholarship, whether doctrinal in the Langdellian mode, or more recently in the social science mode, is or needs to be a science. Some of what is done is social science, some of what is done is philosophy, and some of what is done is advocacy. My own take is that we’d be better off acknowledging that, and then assessing whether it’s good.

  17. Jeff,

    Re: “Some of what is done is social science, some of what is done is philosophy, and some of what is done is advocacy.”

    Perhaps that’s not far from the following (h/t Frank Pasquale): “The Journal of Legal Analysis aspires to publish the best legal scholarship from all disciplinary perspectives and in all styles, whether verbal, formal, or empirical.”

  18. Jeff,

    I tend to agree with you. In fact, in some of my own posts on scientism and the like, I bemoan the seemingly ubiquitous belief that all forms of knowledge production and inquiry ought to strive to be scientific. Such perspectives are mistaken, in my mind, for two primary reasons: first because they tend to assume a particular notion of scientific practice that is dubious as an account of that practice, and second, because even if the practice did fit those norms, it is far from clear that such a modality is the best one for every conceivable desiderata.

    So, legal scholarship is not scientific; nor should it strive to be, IMO.

    (As an aside, however, though I am no legal academic, I came close to being one for awhile, and would disagree with you that what you are doing does not count as ‘research.’ It very much does; it just isn’t the kind of research that most people assume exhausts the meaning of the term).

  19. A.J. Sutter says:

    The issue of “beingness” is a common one in the social sciences, even in the field of statistics, which at first blush shares a lot with the natural sciences. In statistics, before one can measure anything, there is the sometimes implicit step of deciding what it is that will be measured. Nonetheless, many people talk as if the thing has some sort of objective reality that enables one to “get the measurement right,” which is why people refer to statistical “error”. The French school of heterodox economics that calls itself the “economy of conventions” (EC), e.g., Luc Boltanski, Ève Chiapello, Jean Gadrey, Alain Desrosières (as to statistics, especially), approaches economics from the same perspective; economics is based on quantities whose definitions have been negotiated and conventionalized. Accounting standards are a vivid example; e.g., what’s “profit”? For the EC folks, though, that doesn’t mean that “research” is a meaningless term. It just shifts the focus of their research more to the sociology of how the conventions are negotiated and achieved.

    Obviously law, whether statutory or judge-made, is the result of a similar social process. “Legal research” may be a dubious term when interpreted as if the law is reified, as Jeff suggests. But actually, I don’t think the typical lawyers’ way of understanding “legal research” is problematic at all. Practicing lawyers are usually very conscious of the conventional nature of law, and seek to exploit that fact or to participate in negotiating the conventions.

  20. A.J. Sutter says:

    (Sorry, that comment came out much stiffer than I intended!)

  21. A.J.,

    I think you just raised one of the problems that arises in the legal academy more often than not: what you term the “conventional nature of law” is essentially a sociological concept which is distinct, say, from a doctrinal concept of law, and as Dworkin recently reminded us (he further distinguishes taxonomic and aspirational concepts of law), sometimes the two (or three or four) concepts are conflated or confused (which is not to say they are not interconnected).

    As to the questions and issues raised by Jeff and Daniel in turn, I wrote elsewhere as follows:

    I think it would be more helpful were we to discuss the criteria that enable us to assess what counts as “social science” and the extent to which the social sciences are indeed “sciences” on the order of the natural sciences or perhaps altogether something different. For example, “soft” social science along the lines of works that fall under the heading of postmodernism, postcolonial theory, deconstructionism, Lacanian psychoanalysis, and the like often have, in Elster’s words, “more in common with certain forms of literary criticism (or with literature) than with empirical qualitative investigations.” [....] On the other hand, many of those who, for better and worse, or rightly or wrongly, fancy themselves as doing “hard” science, that is, chock full of empirical investigations and the right sorts of data for analysis, strive hard to distance themselves from what others have called “qualitative” social science. Now even when such work of the latter sort displays what Elster calls “utter authority in factual matters,” it does not count thereby as “empirical” according to the judgment of those wedded to the model of “hard” social science (which itself is not always even appropriately described as ‘empirical’ in orientation).

    It strikes me therefore as commonplace to observe that those doing legal studies, legal theory or philosophy of law, and [what has been termed] “empirical lawyering,” will bring to their enterprise methods and models “outside the boundaries of formal law and its institutional practices,” if only for the sorts of reasons that account for the rise of “legal realism” in the first place, or more “instrumentalist” (cf. Tamanaha) approaches to the law in general.

    When folks hear the word “empirical” in this context they often call to mind “quantitative social science,” of which, again following Elster, there are three principal varieties: measurement, data analysis (i.e., statistical analysis), and modeling. Such social science is often oversold [Daniel's concern] if only because it trades too heavily on the mantle and mitre of science as such (i.e., the epistemic authority of tne natural sciences). Elster discusses many of the neglected problems of such science [and A.J. has mentioned them here on more than several occasions]. To take just one example (and we could cite works by Deirdre McCloskey, Philip Mirowski, S.M. Amadae, among others in support), Elster avers, “An interesting question in the psychology and sociology of science is how many *secret practitioners* there are of economic science fiction–hiding either from themselves or from others the fact that this is indeed what they are practicing.” Here, what counts for epistemic rigor or robustness has to do with “numbers” or mathematics, specifically, “ingenious mathematical models” that have little or no anchor in everyday “reality” and thus are utterly irrelevant with respect to social policy, a research strategy with well-established pedigree (cf. several books by McCloskey, critiques by Nicholas Rescher in his works on epistemology and objectivity, as well as Theodore M. Porter’s Trust in Numbers: The Pursuit of Objectivity in Science and Public Life, 1995). Elster is thus even-handed when it comes to calling out both the “obscurantists” of “soft” and “hard” social science alike. [This does not imply that economists--or other social scientists for that matter--should not use statistics, mathematics, etc., it's rather more a critique, along McCloskey's lines, of the specific rhetorical use made of same as a form of knowledge and persuasion in economics].

    In short, [we might change] the framework of the discussion by asking questions related to the epistemic authority and scientific quality of the various forms of investigative inquiry [often] lumped (unjustifiably in my opinion) under the heading of “the empirical.” In answering such questions, some forms of inquiry I suspect will fare far better than others and thus [perhaps] we can help steer this and the next generation of students and scholars toward more meaningful if not fruitful fields of inquiry and academic pursuit. [....]

    Toward the goal of a more reflective and critical approach to the various methods and models of the social sciences that aims at the very least to chasten those eager not only to cite social science literature in their academic work and lawyering but bring a “sociological imagination” to bear as well, permit me (as is my custom) to proffer a few authors and books (these authors raise different and sometimes contrary points and problems):

    Recent works (off the top of my head and in no particular order) by Amartya Sen, G.E.R. Lloyd, Nicholas Rescher, Ian Shapiro, Ian Hacking, Charles Taylor, John Dupre, Karsten Stueber, and Daniel Hutto, as well as

    *Elster, Jon. Explaining Social Behavior: More Nuts and Bolts for the Social Sciences (2007)

    *Hausman, Daniel M. and Michael S. McPherson. Economic Analysis, Moral Philosophy, and Public Policy (2nd. ed., 2005)

    *Kincaid, Harold. Philosophical Foundations of the Social Sciences: Analyzing Controversies in Social Research (1996)

    *Miller, Richard W. Fact and Method: Explanation, Confirmation and Reality in the Natural and Social Sciences (1987)

    *Ziman, John. Real Science: What it is, what it means (2000).

  22. Rebecca Bratspies says:

    As always Patrick, your encyclopedic mastery of the literature is incredible. Thanks so much for the suggestions. I am doing some work (I will not use the term “research” in deference to some other posters :-)) in this area and your suggestions are a big help.

    p.s. what Amartya Sen work were you thinking of?

  23. rebecca bratspies says:

    Patrick–as always your encyclopedic command of the literature is amazing. Thanks for the suggested reading. it will come in handy for a project I am working on. I wonder, what work by Sen were you thinking of?

  24. Rebecca,

    You’re too kind: and as this was a blog post, I did not aim to be thorough or comprehensive but if it quickly came to mind I assumed it was stuff I really liked.

    With regard to Sen, I was thinking in particular of his short book, On Ethics and Economics (1987), but also of his many writings on the social choice literature and welfare economics. But if one wants to get a handle on his latest thinking on these and other topics (e.g., ‘rational choice’ in particular), I would recommend Rationality and Freedom (2002). It collects some of his best lectures and essays on the aforementioned subjects. And speaking of an encyclopedic mastery of the literatue, it is to Sen one should look for just that…at least with those fields that are central (or otherwise somehow related) to economics, which of course is the one field that for some time how has had an enormous influence on legal scholarship. Sen has far more patience or tolerance with various methods (I’m not fond of the term ‘methodologies’ here which, for me at any rate, if not strictly speaking, should refer to the *study* of such methods, of the sort Sen engages in) that I would be inclined to dismiss for their meager results over time, as he offers concrete and provocative suggestions for how to expand and improve their ‘scientific’ depth, as well as their analytical relevance and scope in a manner that persuades one they’re worth salvaging (unlike Elster, for example, as he strikes me as more skeptical as to the prospects for improving these selfsame in the social sciences). As the title of Sen’s book implies, his methodological reflections grow out of a fairly sophisticated conception of rationality and an ongoing commitment to and equally sophisticated understanding of the value of (both negative and positive) freedom.

  25. PAL says:

    “One of the problems, of course, is that the JD isn’t a PhD. Graduate students in other fields of study learn the methodology of academic inquiry.”

    Jason, I think you got this exactly right. I am not a law professor, but am constantly encountering law professors who tell me how delighted they are not have been forced through a PhD program that would have truncated their thinking by forcing them to learn some limiting methodology, because they have the freedom to think and write in more expansive terms than if their minds had been violated in that way. And yet what I see is not research based on a wide range of thinkers, approaches, concepts, etc., but instead the opposite. We are told that film has its own language, or that people are unduly swayed by physical appearance, or that Rembandt was a Dutch artist … because some court (or perhaps a law journal article) said so. This bizarre way of “verifying” assertions is a good synechdoche for the generally blindered way in which much legal “research” proceeds.

  26. rebecca bratspies says:

    thanks Patrick (sorry everyone about the double-posting).

  27. A.J. Sutter says:

    PAL, you make some great points, esp. about narrowness of sources and the specious inferences that are often made from them. But unfortunately having a Ph.D., or even an endowed chair, in some other field isn’t a guarantee of drawing of avoiding these errors either.

    Two recent examples that spring to mind include The Moral Consequences of Economic Growth, by the William Joseph Maier Professor of Political Economy at Harvard, and The Dismal Science, by the Walter S. Barker Professor of Economics at the same institution. In the first, Benjamin Friedman never discusses Japan in any depth, mentioning the country only in passing, even though it’s the world’s second-largest economy. When presenting one of his key arguments, graphs showing how various countries’ “average rights and liberties” correlate to per-capita income, he never offers any details of how “average rights and liberties” are quantified, or anything about the background of Freedom House, who quantifies them; though he does mention that they correlate well with another equally opaque, and presumably equally unbiased, measure compiled by The Economist (@509n32). Nor, scanning through the notes, could I find any sources other than what was available in English (albeit including some translated versions of “classic” Europeans: Marx, Max Weber, Rousseau). In the second, Stephen Marglin does include a couple of cites in French and Spanish, but ignores rich, contemporary veins of sources in those and other languages dealing directly with several of his most important themes. (To spread the criticism more evenly: many histories of science or engineering by profs with Ph.D.s only in technical fields are no more immune than economics books against fallacies, anachronisms and factual errors.)

    The failure to consider statistical data at more than face value, the failure to employ foreign-language sources when talking about comparative, international, or “universal” topics, and the failure to employ historiographical methods when writing an historical treatment of a topic, are surprisingly common in a broad range of academic disciplines. And although they seem to be worse (especially as to monolingualism) in Anglophone academia, they’re not exclusive to it.

  28. Sorry for the OT, but AJ, I was wondering if you might be willing to email me, or provide your email address.