Post-Disciplinary Legal Scholarship?

In his wonderful children’s book The Phantom Tollboth, Norton Juster describes a world divided between a kingdom of words and a kingdom of numbers. As “Digitopolis and Dictionopolis” spur for dominance, “Rhyme and Reason” are the first casualties.

Recently, Larry Solum recommended two very important books on a similar rivalry in political science. After a spell of “quant” hegemony, it looks like a balance between quantitative and qualitative scholarship is in the offing. I want to talk a bit about what the experience of political science, in trying to reach that balance, may have to offer legal scholars. . . . (more after jump)

In a recent paper on “information overload externalities”, I tried both to participate in and to critique the methodology of law & economics (L&E). That is most evident in pages 50-56, defending the characterization of information overload as an externality. My basic contention was that L&E should be informed by long-standing debates over the nature and purpose of social science.

I tried to advance that position by looking at debates over the use of the term “externality” in L&E. Legal scholars have tried to expand the concept of externality to cover, inter alia, the costs of relative deprivation (see Sunstein and Frank) and “cultural pollution” (see Nagle ) . Economists have resisted some of these interventions, worrying that an overly expansive category of externalities will erode the objectivity of their science.

While I sympathize with these concerns, I think an expansion of the externality concept will improve L&E by balancing its positivism and methodological individualism with the values and holistic vision that have enriched the best works of interpretive social science. (For more on interpretive social science, check out this reader or Jed Purdy’s treatment of it in this paper.) My contention is that legal scholarship is not diminished by explicit recognition of the value commitments upon which it is based, and that such value commitments legitimately include visions of the good society (and not just characterizations of the urgency and legitimacy of individual preferences).

To bring this back down to earth (and the subject of the paper): I do not think that an economic approach to the issues raised by Google’s book digitization project should focus solely on the maximization of copyrightholders’ licensing fees, or “consumer welfare,” or even copyrighted works. The real issue is whether we as a society are going to commit ourselves to organizing and making more widely accessible the information we have. L&E can help us see the costs (and benefits) of such a vision by, for example, acknowledging non-market-based valuation techniques and taking into account the positive externalities of expanded access to knowledge.

What does this mean for the legal academy? I think Steven Smith hints at an answer in his article “Legal Scholarship as Resistance to ‘Science.’ ” But rather than endorsing Smith’s skepticism about social science as a whole, I would argue that the real enemy is methodological narrowness. As Anthony Kronman suggested in The Lost Lawyer, legal scholarship is not merely “economics lite” or “philosophy lite,” but, ideally, an effort to bring to bear on complex problems the best insights of social scientists, philosophers, literary theorists, and other scholars. The unique position of legal scholarship outside those disciplines may make it a promising example of new trends toward “postdisciplinary inquiry.”

In an era of specialization, such an approach is sure to bring charges of dilettantism. I think Mike Madison’s idea of post-publication peer review via tags would there. But we already have a model: some of the best political science of recent years has been problem-driven, drawing on a range of methodologies. The legal academy can also benefit from the insights of those with a broad understanding of multiple forms of social explanation and versions of moral inquiry.