Einer Elhauge, Guest-Blogging:
I'm delighted to say that we'll be joined this week by Einer Elhauge, Petrie Professor of Law at Harvard Law School and faculty director of the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics.
Prof. Elhauge teaches Antitrust, Contracts, Corporations, Health Care Law, and Statutory Interpretation, and writes about all these topics plus, among other things, legislative term limits, the 2000 Presidential election, the implications of interest group theory for judicial review, and whether lawyers improve the legal system. His most recent publication are Global Antitrust Law and Economics (Foundation Press 2007) and Global Competition Law and Economics (Hart Publishing 2007); he is also working on the forthcoming Statutory Default Rules for Harvard University Press, books on Contract Theory and Health Law Policy, and articles on re-engineering human biology and other topics.
As befits Prof. Elhauge's eclectic scholarly tastes, his guest posts will deal with a variety of trends in legal studies, from legal globalization to the teaching market to statutory interpretation. I'm very much looking forward to his contributions this week.
Will Basic Legal Subjects Become Globalized?
In today’s global markets, firms face the reality that they are subject to simultaneous legal regulation by many nations. Lawyers face the reality that they must advise clients subject to such multinational regulation. Yet law schools continue to teach and research basic legal subjects from the parochial perspective of whatever nation they are located in. This doesn’t make much more sense than having, say, Harvard Law School offer a curriculum limited to Massachusetts law on topics like contracts, property, torts, antitrust, and corporate law, just because it is located in Massachusetts.
To be sure, some law schools, including Harvard, are introducing first-year required courses in international and comparative law, which is I think a very welcome step. But generally international law courses focus on resolving conflicts in national laws, and comparative law courses focus on general differences in legal cultures to gain perspective on our own system, in a way that does not necessarily get deep into substantive theory in any particular area. Neither quite confronts the reality that the basic law applicable to much conduct simply is multinational.
Focusing on courses in international and comparative law also, in a sense, ghettoizes the laws of other nations, treating them as something to consider at the margins outside the basic legal subjects. It would be like saying the Massachusetts law curriculum I noted above would be fine if Harvard also offered first year courses in conflicts of laws and comparative state law.
I confess I have a personal stake in this issue, because I have just finished a book (with my European co-author Damien Geradin) called Global Antitrust Law & Economics, which I believe is the first casebook to take the approach that the law applicable to a basic legal subject is multinational. We put US regulations and cases side by side with the EC regulations and cases that regulate the same conduct on global markets, without suggesting that one of them is more important or necessary to understanding basic antitrust law and that the other is only useful to add perspective. We designed the book to be able to replace parochial books on basic antitrust law and teach antitrust lawyers the global landscape they must face, not to merely provide grist for advanced courses in comparative and international antitrust.
I think this is the first casebook to go this far, but glancing through advertising for other casebooks, it seems clear that casebooks in every area are popping up which add an increasing amount of global content to basic legal subjects. My prediction is our book will just be the leading edge of a wave of such books, and that they will transform legal education more than anything else we have seen in the last few decades. Perhaps we will even get to the stage where we do not need courses in comparative and international law because each substantive course already addresses the comparison and how to resolve international conflicts in that subject.
It is not too surprising that antitrust would be the leading edge in such a transformation, much like it was for the incorporation of economic analysis of law. Antitrust economics offers a common body of scholarship across nations already, and there is the convenient fact that the US and EC dominate antitrust enforcement, with other nations generally borrowing the approach of one or the other. This makes it possible to take the approach, like my book did in this first edition, of analyzing the US and EC law in depth and just summarizing other nations’ stance unless they take a distinctive third way approach.
But I can already see that, if I could just find the time to write the necessary casebooks (or find someone else who would), I really should be teaching all my other subjects from a global perspective. Contracts, corporate law, health law – all these raise issues across multiple nations and understanding the laws of many nations on these topics would better describe reality. Doing so in basic substantive courses would also, if my experience from the global antitrust book can be generalized, reveal many interesting theoretical issues that a national approach tends to submerge, and pose very interesting areas for possible empirical studies into what works and what doesn’t. This last point brings us to the next big transformation in legal studies – the growing trend toward empirical analysis – which will be the subject of my blog post tomorrow.
Twombly -- The New Supreme Court Antitrust Conspiracy Case
I'm afraid the new Supreme Court case on antitrust conspiracies, Twombly, is quite insignificant, notwithstanding the view of the estimable Baseball Crank that it "will almost certainly be the most practically significant case of this term." All the case holds is that bare allegations of a conspiracy and parallel conduct do not suffice without more specificity. That much was the widespread actual practice in the lower courts even before this decision. What we really needed guidance on was which "plus factors" would, coupled with parallel conduct, suffice to make out an antitrust conspiracy. On that the opinion is of no help. So all it really does is slap down one wayward decision without really settling anything important for the future.
Sabermetrics and the Future of Legal Empirical Studies
The book I have recently read that I think may offer the most insight into the future of legal studies is, of all things, a book on sabermetrics, called Baseball Between the Numbers. Sabermetrics, for those of you not into baseball, is the advanced statistical analysis of baseball. With Bill James as its most famous pioneer, it raised all sorts of probing analysis about which statistics really best determined the value of a baseball player, and what sorts of strategies worked and which didn’t.
So what does any of this have to do with law? Well, what this book does is compile, in a readable way, the major points this advanced statistical analysis has taught us over the last few decades about matters that were previously resolved by tradition, customs, and intuitive reasoning. Some of those traditional views turn out to have some basis, others none or only in a limited way.
For example, advanced statistical analysis shows that batting averages are a useful statistic, but much less important to winning than on-base-percentage. RBIs are largely a distraction, and hot streaks and clutch hitting are stories we tell ourselves to describe statistical clumps that are really just random. Pitchers vary in their ability to strike out batters and avoid walks and home runs, but have little effect on the odds that balls hit in play will become outs, so their ERAs are worse predictors of their future performance that their rates of strikeouts, walks and home runs. The bunt is hugely overused, and generally reduces the odds of victory, other than in a few instances that can be specified with precision.
And it occurred to me that in law we now are largely where sabermetrics was in the early days when Bill James began cranking out his seminal Baseball Abstracts. The bulk of what we teach our students reflects tradition, customs, and intuitive reasoning. Little of it has been subject to rigorous statistical analysis.
In Contracts class, for example, I regularly teach that we can understand all contract law largely as default rules that either reflect what most parties would want or are thought most likely to trigger an explicit contract provision. Then we explore how courts and scholars have resolved such issues, which is largely through armchair reasoning. The issue cries out for rigorous statistical analysis, and we have little to offer.
In Antitrust, much turns on how we think firms are likely to behave. After a merger, will firms engage in Bertrand competition by pricing down to cost, Cournot competition by setting output in a way that depends on the output of others, or oligopolistic coordination on price or output? The traditional approach considers various factors that theoretically bear on this issue in particular cases, but the weighing of them generally turns on unavoidable judgment calls. It would be better to rely on the growing statistical analysis of how firms actually behave (often, it turns out, in ways that lie in between these models). It would be even better to have rigorous statistical data about what the price effects were of a particular method for deciding which mergers to approve or condemn. Right now we choose our merger law methodologies based on theory and never gather and analyze the data to see whether the theory worked.
We are probably even further behind in empirical analysis of basic legal strategy. What sorts of arguments are most effective with judges? Which with juries? Which sorts of contract design are most likely to avoid disputes latter? Which settlement offers are most likely to be successful? These are important things to teach our students, but all we can do is either tell them the received wisdom (which may well be wrong) or avoid discussing these issues (so as not to expose our ignorance).
In short, in law, we are currently still largely in the position of the baseball scouts lampooned so effectively in Moneyball for their reliance on traditional beliefs that had no empirical foundation. But all this is changing. At Harvard Law School, as traditional a place as you can get, we now have by my count 10 professors who have done significant statistical analysis of legal issues. We just hired our first JD with a PhD in statistics. The movement is not at all limited to Harvard, and seems to be growing at all law schools.
So we are hardly devoid of empirical analysis of law. We are just, rather, in our early Bill James era, and can expect the analysis to get more sophisticated and systematic as things progress. I expect within a couple of decades we will have our own book distilling the highlights of things we will know then that conflict with what is now conventional legal wisdom.
None of this means this new empiricism will replace traditional legal theory, much like sabermetrics has not eliminated the need for scouting. Indeed, it is clear to me that a lot of legal empirical analysis misses the boat because it has a poor or thin understanding of legal theory. Many empiricists are good at providing useful input to policy analysis, but surprisingly terrible at doing policy analysis about the implications of their own findings. There will also be some growing pains because it is not clear that empiricists are the best placed persons to teach law students, given that the students themselves need not learn how to do statistical analysis to become excellent lawyers.
But I have no doubt that empirical analysis of law will provide the biggest contributions to our understanding of law over the next few decades. That is where the low-hanging fruit is. The decline of doctrinalism will only accentuate this trend. Because anti-doctrinalist law professors can no longer persuade lawmakers with claims about what the law inherently must mean, they will find it more promising to try to influence lawmakers with findings about what effects particular laws would have. This brings us to my next topic, the death of doctrinalism, which will be the subject of my post tomorrow.
The Death of Doctrinalism and Its Implications for the Entry-Level Job Market at Law Schools.
Doctrinalism is dead. One cannot get a job at a top law school nowadays as a doctrinal scholar. Or, to put it more precisely, you have to be ten times as good to get a job as a doctrinal scholar as to get one as an interdisciplinary scholar. And even then you cannot get hired at Yale.
Now by doctrinalism I do not mean any scholarship that considers doctrine or takes it seriously. I rather mean the sort of scholarship that simply describes doctrine or that assesses doctrine based solely on formalistic grounds having to do with the logic of it internal structure. It would not, in my book, be doctrinalism to analyze the functional theories that could explain some doctrine or lead to reform of it, or to measure the consequences of doctrine. Heck, that is what I do, and I am not about to declare myself obsolete.
Doctrinalism is dead for a very good reason. It is either too easy or mistaken. The variety of doctrinalism that is too easy consists of the purely descriptive articles. To be sure, good descriptive legal articles require hard work by very-smart, highly-trained lawyers. But the problem is that those sorts of persons are in relatively high supply compared to those who can come up with original ideas or empirical findings, so that such work is not going to get much credit in legal academia, even though it can be quite useful.
The part that is mistaken is the variety of doctrinalism that tries to explain legal results or predict future decisions based purely on formalistic logic. Devoid of any underlying functional theory, these theories turn out to offer little real explanation and serve as poor predictors. The formalisms are just too easy to spin in multiple directions, and we need some underlying theory to explain where the fault lines are likely to be and how judges and lawmakers are likely to be inclined to resolve them.
The one odd exception is Constitutional Law, where doctrinalism still appears to be alive and kicking. I suppose the reason for its exceptional status is that we have nine old persons on the Supreme Court who seem persuaded by doctrinal arguments and have immense power to impose results on the rest of us through constitutional decisions, however poor their underlying policy analysis.
But for the rest of us, the seriousness with which many constitutional scholars still take the task of parsing the precise language of Supreme Court cases that were largely written by law clerks is fairly astonishing and more than a little quaint. Thus, we have the oddity that the marquee legal subject, constitutional law, is also the least intellectually respected among law professors because it is the most doctrinal.
In any event, no law school aims to hire constitutional law scholars on the entry-level job market, so trying to make it as a doctrinalist is a nonstarter. But this raises a problem, because much of law school is spent becoming trained in doing doctrinal analysis. All the good professors also teach theory, but usually not enough theory to make students well-trained in doing the sort of interdisciplinary scholarship one needs to do to get a professorship at a top law school. And as I mentioned in my last post, much of the modern action is in empirical analysis of law, and practically none of us teach how to do that in our law classes.
So how can one overcome this entry barrier? One way is to get both a JD and a PhD. This has described the lion’s share of entry level hires made at Harvard recently. But while this has been a successful approach for us, it creates problems as a systemic approach because very few people get both a JD and a PhD, and whenever one limits the pool of persons from which one picks, one may not get persons with as much raw talent and creativity as if one drew from a broader pool. Much of the most interesting work of the past generation was, after all, done by persons who had a JD but no PhD. One would not want to screen out the next generation’s Richard Posner, Cass Sunstein, Frank Michelman, Mark Roe, Bill Stuntz, Ronald Dworkin, Larry Lessig, Guido Calabresi, Bob Ellickson, Bill Eskridge, Alan Schwartz, or Bruce Ackerman, just because they had no PhD. At least I wouldn’t.
The solution, towards which law schools are steadily moving, is expanding programs for fellowships in law. These fellowships were nonexistent in my time, when people like me got law jobs at top schools like Berkeley based on a job talk jotted down on notecards late at night after working as a clerk. (Not everything was tougher in the old days, despite what us old fogeys like to say.) Since then, these fellowships have exploded.
I run one program, the Harvard Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, that will have eight academic fellows next year, earning $60,000 per year for developing their own scholarship in this crucial area, where the supply of academic candidates has historically fallen far short of law school demand. Harvard’s Climenko Fellowship adds another fourteen. There are Olin Fellows, Berkman Fellows, and Houston fellows and probably many more I am missing. And that is just at Harvard.
These fellowships provide a vital opportunity for aspiring legal academics to steep themselves enough in modern legal theory or empirical analysis to be able to demonstrate some ability to do the sort of nondoctrinal interdisciplinary scholarship the modern academic law market demands. In the future, look for these fellowships to become more and more regularized into a form of quasi-necessary post-doc, with law schools looking mainly to them and to PhD programs for their entry level hires.
What, though, are the implications of the death of doctrinalism for the laterals market? That will be the subject of my posting tomorrow.
Doctrinalism and the Legal Academy:
Both Larry Tribe
and Jack Balkin
have posted very interesting responses to Einer Elhauge's guest post
on the "death of doctrinalism," and I wanted to point them out and also offer a few thoughts of my own. In particular:
1. If you define doctrinalism as meaning scholarship that is 100% descriptive, then that has been dead for a really long time (if it was ever alive). Even the great treatises of old were much more than descriptive works. They generally tried to take a complex and chaotic field of law and impose a normative order that owed much to the author's worldview. Sure, the treatises dressed up the author's opinion as if it were "divining the law," just like many trendy law review articles today dress up the author's opinion as "legal theory." (In the case of law review articles, the usual trick is for the author to pick a "theory" that matches his personal opinions; the article then argues that good result A is compelled by an application of grand theory B, which sounds much better than saying the author just kinda likes it.) But despite that, much of the underlying contribution was normative.
2. If you define doctrinalism as meaning scholarship that takes doctrine seriously on its way to making other points, then I would say that the legal academy has a conflicted attitude towards it. On one hand, doctrine often provides a point of depature. It's hard to say how the law should change if you don't actually know what the law is and how it works in practice. Where doctrine is particularly new or unsettled, a really careful doctrinal analysis can make the difference between a thoughtful contribution and a bunch of b.s. On the other hand, there is anxiety in some corners that too much discussion of doctrine signals a limited imagination. An excessive concern with everyday reality suggests an insufficient engagement with deeper thoughts. From that perspective, engagement with doctrine is sort of like telling a Indy rock hipster that you listen to Billy Joel: In and of itself it may be fine, but dear Lord, what does it say about your priorities?
3. As for Professor Elhauge's claim that constitutional law is "the least intellectually respected among law professors," I find that claim puzzling. I haven't encountered that view, as many of the biggest names in legal academia are con law profs. Of course, there are big names that a lot of people think are pretty vacuous, but that goes along with the territory of being a field with big names.
The Exploding Laterals Law School Market.
What accounts for the explosion in the law school market for making lateral hires from other law schools? Law schools have long attempted to hire legal scholars from other schools. But the degree of competition for top laterals has become remarkable.
One indication is the huge number of law professors who will be visiting top law schools as reported in Leiter’s Law Reports: 103, including Harvard (46), Stanford (4), Chicago (14), Columbia (20), NYU (19). Such visits are typically used to look over professors for a possible lateral offers, and clearly that is what is going on for a large number of persons on this list. The number of lateral visitors Harvard Law School will have next year will be double what the size of the whole faculty was in the 1950s.
Some of this will turn out to be professorial flirting, but a lot of these visits will result in actual lateral offers and moves. Consider the large, and highly prominent, set of laterals that have accepted offers from Harvard Law School during Dean Kagan's four year Kagan deanship: Noah Feldman, Jody Freeman, Jack Goldsmith, Daryl Levinson, Bruce Mann, John Manning, Gerald Neuman, Robert Sitkoff (just yesterday), Kathy Spier, George Triantis, Mark Tushnet, and Adrian Vermeule.
And the full returns are not even in yet on past visits, for Harvard still has outstanding offers out to: Yochai Benkler, Richard Ford, Pamela Karlan, Michael Klarman, Martha Nussbaum, Robert Post, William Rubenstein, Seana Shiffrin, Reva Siegel, Henry Smith, and Cass Sunstein. If even six out of these eleven outstanding offers are consummated, it will mean the addition of a total of 18 laterals, a remarkably sharp transformation of the school in a very short time.
What accounts for this explosion in competition for laterals? One might think the phenomenon is unique to Harvard. But the long list of visitors at top law schools indicates it is a more universal phenomenon. Still, there is a Harvard-centric theory. Namely, the Kagan deanship ended a certain amount of constipation in the Harvard laterals hiring process, and once Harvard started to aggressively pursue laterals, other law schools had to do so to keep up with the competition.
I think there is a certain amount of truth this. One individual can often make a remarkable difference, and Dean Kagan appears to have done so. But this explanation does beg the question: why didn’t other law schools choose to compete by instead focusing more on the entry level market? There the level of hiring seems largely unchanged.
Other factors have also surely contributed to the current laterals frenzy. The large run up in the stock market last decade made donors and law schools relatively well-off, giving them the funds to pursue scholars and smaller class sizes. The revival of New York City by Guiliani made NYU and Columbia much more attractive places and helped them compete for top scholars. And all the top law schools have in recent years had deans who are young, smart, ambitious, and aggressive. But all these factors still fail to quite explain why these well-funded, more attractive schools with ambitious deans choose to focus more on laterals than on entry-levels, especially given that entry-levels do not require expensive visits and are generally easier to land because they are less likely to require a family-disrupting move.
I think the answer is related to a trend I mentioned yesterday: the death of doctrinalism. That death caused the entry level market to largely shift its focus to JD/PhDs as the set of persons who could, at the entry level, most plausibly offer demonstrable proof of their ability to engage in the sort of serious interdisciplinary work that modern law schools now require. But there is a relatively small set of such JD/PhDs to chase, so this strategy does not offer many opportunities for expansion. And it misses the large set of talented potential legal scholars who do not get PhDs.
One reaction to this limited pool has been to create fellowships to train JDs to do interdisciplinary work before they hit the entry level market. But this is a relatively new phenomenon and has not yet created a sufficient number of serious interdisciplinary entry level candidates to meet demand.
So the complementary alternative has been to use the laterals market to focus on those scholars who have proven their ability to do interdisciplinary work as professors elsewhere. We’re often not sure which entry level candidates will turn out to be able to do such work, because many of them have not been given much of an opportunity to do so. But once they demonstrate such an ability in their scholarship, then the top law schools are all over them.
This explanation is consistent with the pattern of PhD hiring at the entry and lateral levels. For example, 6 out of 7 of Harvard’s recent entry-level hires have (or will soon get) PhDs, and the one who does not was a quasi-lateral, having been a visiting professor here for two years first. In contrast, 9 of Harvard’s 12 recent lateral hires have no PhD. I can attest that this pattern was not the product of any conscious design: it simply reflects which sorts of candidates seemed attractive.
Another trend that is consistent with this explanation is that lateral visits are now increasingly focusing on laterals much earlier in their career, often after they have been professors elsewhere for only a few years. This is a big change from the old model, where lateral offers generally focused only on fairly senior scholars who were the established leaders of their field. This shift makes sense if the shift to laterals reflects some substitution away from entry level hires because of the limited number of JD/PhDs, toward other young candidates who have demonstrated their ability to do interdisciplinary scholarship at another school. Look for more of the same in future, with some lessening of focus on laterals as fellowship programs expand to meet the demand for entry level candidates who can do interdisciplinary work without necessarily having PhDs.
Why All This Lateral Hiring By Elite Schools?
Einer asks the question, why are the elite schools doing more lateral hiring now, especially of younger professors, than they used to? One possible explanation rests on two factual assumptions. First, that the credentials typically relied upon by elite schools for entry level appointments--e.g. elite law school diploma, stellar grades, law review, Supreme Court clerkship, job with top law firm--simply did not reliably enough produce superstar legal scholars. Second, that the unwillingness of elite law schools to deny tenure to anyone who was able to publish one or two massive "tenure pieces" prevented elite law schools from weeding out the nonproducers. As a result, elite law schools were stuck for life with lots of former-superstar law students who underperformed as legal scholars. The solution to this situation has been obvious for some time: let other law schools assume the risks of entry level hiring, while the elite law schools skim the cream by hiring laterally those who prove themselves to be great scholars. In other words, if the elite law schools could not use the probationary period of pre-tenure to weed out those who were not going to be successful, then it is prudent to let other schools take the chances.
The problem with implementing this strategy was that, to become a great scholar, one had to say something in print--usually a sustained something--and that something was likely to annoy one or another faction of the faculty at the elite school, who would then block the appointment. Far easier it was for elite faculties to agree to to hire entry-level candidates with little or no scholarly track record but lots of "promise." This is why, in Harvard's case, Elena Kagan's deanship has been so important: she has been able to break the "collective action" logjam at the faculty level and thereby allowed Harvard to pursue its true self interest in the lateral market--as Yale, NYU and others have been doing for considerably longer. In Yale's case this began in earnest with Guido Calabresi's deanship and at NYU with John Sexton's. If the numbers of lateral appointments are increasing beyond the huge numbers of appointments made recently by Harvard, it may be because this strategy is proving over time to be successful for the elite schools.
Undoubtedly, there is more to the story--like the fact that because more and more law schools at all levels are hiring entry levels for their scholarly promise, there are more prospective lateral candidates at less prestigious schools to be cherry-picked by the elite--but this seems like at least part of it.