Baron on Leiter on Empirical Legal Studies

A few weeks ago I was on the train home, reading an old piece of scholarship from one of my favorite colleagues at Temple, Jane Baron.  Jane is well-known for her work on law and literature, the rhetoric of property/T&E, and interdisciplinary studies more generally.  The particular piece that I read on the train was “Interdisciplinary Scholarship as Guilty Pleasure: The Case of Law and Literature” (Law & Literature, 1999).   Jane’s observations about law and literature were strikingly relevant to the blog debate this summer which Brian Leiter instigated in his post “So-Called ‘Empirical Legal Studies.”  That debate was fierce, but no one made the precise point that Jane appears to have anticipated over a decade ago.  So I asked her to comment for us on Leiter & ELS. Here’s what she had to say.


“I arrived late to the debate Brian Leiter stirred up in his summer post on “So-Called ‘Empirical Legal Studies,’” whose incendiary title alone probably irritated self-identified ELS scholars. Of course, I’m not an ELS scholar, and frankly I have my own share of axes to grind about ELS. All those annoying numbers, data points, p’s and n’s—no one writes prose well enough to make those methods sections interesting to read. And I have already had my fill of faculty candidates with inchoate and incoherent ideas for adding an unspecified “empirical” component to their research—meaning they would count something if they could think of something to count.

But even given my own frustrations with ELS, two things particularly struck me about Leiter’s post. One was his assertion that the skill level of ELS scholars was “low, or at least lower than the typical . . . law & philosophy interdisciplinary scholar of yesteryear.” Considering Leiter’s 1992 characterization of then-extant law and philosophy scholarship as “intellectual voyeurism,” the insult to contemporary ELS is perhaps even stronger than many current ELS scholars might have realized.

The second thing that struck me was Leiter’s assertion that the ELS “mutual-admiration society” might be “disconnected from the central normative and conceptual questions of legal scholarship and legal education.” I think the challenge here was intended to provoke ELS scholars to show that their work does connect to those questions. Josh Wright has written thoughtfully on this question and probably lots of other folks have as well.

But I think it’s worth asking some different questions: why are we to assume that there are “central normative and conceptual questions of legal scholarship and legal education”? And should we be sure, as Leiter seems to be, that “smarts on your feet, the ability to draw conceptual distinctions, [and] construct and deconstruct arguments . . . are the . . . intellectual skills . . . needed in law”?

As I explored in earlier work, the compare-and-contrast analysis of interdisciplinary work constructs the very fields being dissected. In the realm of law and literature, for example, the tendency is to contrast the (allegedly) rich, textured, emotional realm of the literary with the (allegedly) dry, abstract, logical realm of the legal. This formulation effectively defines law as a pure domain of rules—a domain in which Langdell himself would have been happy to dwell.

But of course not all literature is morally rich (pick your favorite noire novel). And not all law is dry or abstract (pick your favorite opinion). We can depict literature as a form of plenitude and law as a form emptiness, but do we really want to?

In his ELS post, Leiter employs the inside/outside trope, to similar effect. He puts the ability to react fast, analyze arguments, and address ‘normative and conceptual questions’ inside law, and the ability to crunch numbers and analyze data outside law. But we can all think of some number crunching that is clearly inside law (B=P x L anybody?) and surely someone as intellectually accomplished as Leiter can’t mean to assert that there are no normative or conceptual questions outside law.

I am not just quibbling over words here. The question whether (all or some of) ELS work is good legal scholarship implicates the important question of what counts as “legal.” We can define law as a realm composed entirely (or centrally) of conceptual and normative questions. But we don’t have to. Indeed, at least some ELS work is designed to demonstrate that the normative questions that are ostensibly central in legal analysis are not in practice determinative, so that the “law” we thought we knew is not the “law” with which judges and practitioners work. Maybe that work is persuasive, and maybe it’s not. But at least that work is sensitive to the problem of defining law’s realm, a problem Leiter’s post assumes away.”

Thanks, Jane!

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4 Responses

  1. Matt says:

    I might be wrong (and certainly welcome correction if so) but when Leiter said that the “skill level of ELS scholars was “low, or at least lower than the typical . . . law & philosophy interdisciplinary scholar of yesteryear.” I took him to be comparing ELS scholars not to the people he criticized in his “intellectual voyeurism” piece, but to people trained in law and philosophy, and suggesting that the application of philosophical ideas by those with the train to legal issues was done better than many people working in ELS are doing with their training. I have no strong opinion as to whether that’s true or not, but that’s how I understood the claim.

    Similarly, my recollection of the “intellectual voyeurism” piece is that its targets were people making use of philosophical work they didn’t understand, but that’s not the charge Leiter is making here against certain people doing ELS, I think. This comes out if you include the bit of the quote not given here, about what type of skills Leiter claims are missing: “analytical- and discursive-skill”. He’s not saying, as seems to be implied, that people doing ELS are technically incompetent, but that their application of their technical skill to legal issues isn’t satisfying. I don’t have a strong opinion about whether that’s right or not, but it’s a different criticism than he made, if I’m recalling correctly, in the “Voyeurism” piece, which was that certain law professors were making use of philosophical ideas that they didn’t understand in an incompetent way. If that’s right, then I don’t think the “even stronger insult” reading of the piece is right.

  2. Brian says:

    Dave Hoffman kindly e-mailed me about this posting, so I will offer a brief comment. Matt Lister’s comment above is entirely correct. The 1992 “Intellectual Voyeurism” article did not concern law & philosophy scholars.

    I am not sure I have any response, except puzzlement, to someone who doubts that “smarts on your feet, the ability to draw conceptual distinctions, [and] construct and deconstruct arguments . . . are the . . . intellectual skills . . . needed in law.” Good rhetorical skills can also help, so too sometime knowledge of statistics. The ELS scholars can certainly help with the latter. Transactional lawyers often need other kinds of intellectual skills, but I have not seen the case as to what ELS contributs to those. I’m not against ELS, far from it. But it’s become a “fad,” with unfortunate consequences.

  3. While I’m not claiming Brian shares my particular accounting for the reasons ELS has become a fad, I attempted to address this in an earlier post on the subject at the Faculty Lounge. Here too, I’m not opposed to ELS as such, that would be silly, but believe it should become more “self-critical” and philosophically sophisticated, as well as more sensitive to the ways in which the descriptive and normative often intersect or become entangled with each other:

    I think many of the problems also arise from uncritical adoption of the methods found in contemporary economics by Law & Economics devotees, a problem not wholly transcended by the recent turn to behavioral economics among some in the profession. People writing in this genre often seem wholly unaware of critiques of the methods of these economists by S.M. Amadae, Deirdre McCloskey, Philip Mirowski, Amartya Sen, Daniel Hausman, Michael S. Mcpherson, Ian Shapiro (Political Science and Political Philososphy), Elizabeth Anderson, among others. Hilary Putnam writes of an earlier, analogous “revolt against formalism” initiated by the Pragmatists: “This revolt against formalism is not a denial of the utility of formal models in certain contexts; but it manifests itself in a sustained critique of the idea that formal models, in particular, systems of symbolic logic, rule books of inductive logic, formalizations of scientific theories, etc.—-describe a condition to which rational thought can or should aspire.” To paraphrase and quote again from Putnam, our conceptions of rationality cast a net far wider than all that can be scientized, logicized, mathematized, in short, formalized: “The horror of what cannot be methodized is nothing but method fetishism.” All of this by way of placing ELS in the larger picture of jurisprudence in general.

    And there’s not enough appreciation of the role of philosophy of science (of both the natural and social sciences), hence litte appreciation of the meanings of induction, the use of models, the role of analogical and metaphorical reasoning, hermeneutics, debates surrounding methodological individualism, and so forth and so on.

    Relatedly, there’s often uncritical but faddish adoption of the latest fashion in the sciences, be it neuroscience, cognitive science, evolutionary psychology, what have you. The nascent character of such sciences should give one pause but….

    As I’ve said elsewhere, it perhaps goes without saying that one of the more recalcitrant issues here revolves around the belief that the natural sciences are the repository for the kinds of models and standards, the analytical “robustness” and “rigor,” that we should imitate in the social sciences. Rigor and precision are relative rationalist desiderata among others, all of which admit degrees of dependence on rhetorical means and ends that are cut, chiseled and polished—shaped—according to the purposes of empirical, moral, and practical forms of reasoning. Now we need not draw hard and fast boundaries between these two basic kinds of science (after all, we have sufficient reason to label them both ‘science’), but I think there are a host of reasons that we should take care not to elide the very real distinctions between natural and social science.

    For example, when folks hear the word “empirical” in this context they often call to mind “quantitative social science,” of which, after Elster, there are three principal varieties: measurement, data analysis (i.e., statistical analysis), and modeling. Such social science is often oversold if only because it trades too heavily on the mantle and mitre of “hard” science (i.e., the epistemic authority of the natural sciences). Elster himself discusses many of the neglected problems of such science in his book, Explaining Social Behavior: More Nuts and Bolts for the Social Sciences (2007) (See too Richard Miller’s Fact and Method: Explanation, Confirmation and Reality in the Natural and Social Sciences (1987)). 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 (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)).

    Other problems are perhaps owing to constricted conceptions of rationality (Toulmin remains important here), infatuation with formal logic, at the expense, say, of informal logic (as can be the case with Bayesian reasoning and the desire to formalize inductive methods: as John D. Norton has argued, ‘the more universal the scope of an inductive inference schema, the less its strength’), and the seduction of scientism, which is liable to define the “scientific” as coextensive with the “rational” (Suffice to say I think this is an ongoing danger, even if the term is often abused: in a cultural climate in which the notion of ‘Intelligent Design’ is seriously and adamantly proffered as an intellectual challenge to evolutionary theory despite the appalling absence of the epistemic virtues intrinsic to scientific theory, or in a time when too many people who should know better deny the science associated with global warming, the charge of scientism risks being assimilated to the popular and debilitating anti-scientific ethos that is fueled by ideological goals and feeds on failures and gaps in our formal educational system; but a critique of scientism need in no way detract from the value of scientific knowledge nor impinge upon the desire for and necessity of progress in the natural and social sciences.).

  4. anonprof says:

    [This comment was deleted because it threatened to divert the thread toward a series of personal attacks.]