Empirical Studies & Bubbles: A Response
I just read this provocative post by Jonathan Simon, arguing that empirical movements in law are fueled by bullish stock markets:
The relationship may be spurious but it has a certain logic. At least compared to library research, empirical research is expensive. Bull markets mean that institutions that live on endowments, like foundations and universities, have lots of money to invest in academic research.
Count me as a vote for “spurious,” though I take Heise’s call-for-research seriously (perhaps more seriously than he meant it). Since I’m at Cornell this semester, a center of empirical work, I figured I’d make a more extended response. (Weather report: Your tauntaun will freeze before you hit the first marker cold. Seriously. When I see people here, it’s all I can talk about. Makes for terrific first impressions.) My thoughts follow, after the jump, for those who wish to avoid (what Lipshaw calls) navel gazing.
First, we’ve had bull markets without notable effects on the relatively incidence of empirical research. Take, for example, the 1982-2000 bull market. For the first ten years of that market (the 1980s) we certainly saw bubbling trends in legal scholarship — the crits and post-crits, the narrative folks — but we didn’t really see as much focus on empiricism. That trend changed in the mid-1990s through now, but I don’t see any rhyme or reason to make a connection. Further, we’ve been in a bit of a bearish market since 2000. (Cf. Simon) Don’t believe me? Check out the Dow’s log.
Second, one earlier incidence of empirical growth that Simon relies on, particularly the 50s-60s realism push, is not a good fit for the “correlating” bull market, which lasted from the late 40s to the late 60s.
Third, current growth in ELS scholarship has nothing to do with resource availability and everything to do with the increase in the quality & cost of law professor methodological training, resulting from an increased demand for law professor jobs, and resulting in increased expression of method-heavy scholarship. It’s an interesting question as to why that demand increased, but I bet it reflects, in part, the decreasing attractiveness of private-sector legal employment and academic jobs outside of law (because of trends that are, of course, now beginning to hit law professors). Also, I think that US News academic ranking competition has changed the way that professors are evaluated and merit pay distributed. These factors may be producing the “norms” Simon referred to when he wrote that “this wave [of empirical scholarship] has been generated largely internally by the emerging scholarly norms of the professoriate itself (rather than ambitions of foundation or university visionaries to change the faculty).”
Finally, I’m not so sure that empirical academics cost more, pound for pound, than other kinds of academics. My sense, if you look around at faculty webpages and the like, is that the professors who reap the most in benefits (expressed in Chairs) at schools are usually con law/fed courts folks. I think this is because they are the highest profile, in the mainstream media, and the most likely to thus obtain the bargaining power that leads to significant salary increases. It’s of course an open & empirical question whether such salary differentials (a) exist and (b) compensate for the money that ELS eats in the form of data collection and experiment costs.