A Half-Baked Idea on the Evolution of Legal Scholarship
posted by Nate Oman
Having fallen into a black hole of writing for the last couple of months, I am now trying to emerge to do a bit of blogging. Over the summer I’ve had the good fortune to be part of an interdisciplinary reading group at William & Mary on the financial crisis. Yesterday one of the economists in the group, Till Schreiber, gave a fascinating presentation on the current state of macroeconomics and fiscal policy. One of the striking things to me was to see how little research has been done for the last generation or so on fiscal policy. An enormous intellectual effort has gone into thinking about monetary policy. I was frankly a bit shocked, however, not just at the amount of disagreement there was about such basic questions as the size of the fiscal multiplier, but even more at how thin the research on the topic was. One theory we batted around as to why this was so is a simple matter of the incentives that economists face. Those writing papers on monetary policy had a ready and sophisticated audience among central bankers. Indeed, those doing good work in monetary policy could hope to actually do monetary policy someday. On the other hand, the chances that the average congressman making fiscal policy could read, understand, or even be interested in sophisticated work on fiscal policy was minimal to zilch. Likewise for the chances that an academic expert on fiscal policy would be come a congressman or Senator.
I wonder if there is a similar bias at work in the legal academy. One story that you might tell is that relative to legislators judges are going to be more intellectually sophisticated when it comes to the law. Accordingly, one would expect to see more pieces explicitly addressed to judges than to legislatures. Hence, doctrinal scholarship would dominate over more straight forward law reform proposals. I think that there may have been a point in time at which this was true, but it seems to me that the trend in legal scholarship has been to move away from work that is explicitly addressed to either judges or legislatures. One way of understanding this might be simply in terms of the rising sophistication of interdisciplinary legal scholarship. Sticking with the analogy to economists, however, I wonder if the turn away from work more explicitly aimed at judges might be a result of the ideological divergence of the judiciary and the legal academy since the early 1980s. The academy, of course, has always steered left and given that since 1968 only three of the ten presidential terms have been served by Democrats the federal judiciary at least has been moving to the right. Hence, one might tell a story of the rise of “law and ….” scholarship as the academy’s response to their increasing awareness of their ideological irrelevance to what was going on in the courts.
Just a thought.
July 31, 2009 at 8:59 am
Posted in: Law School (Scholarship), Politics
Print This Post
Leave a Reply