Van Zandt, D E --- "Discipline-based Faculty" [2004] LegEdDig 24; (2004) 12(4) Legal Education Digest 11

Discipline-based Faculty

D E Van Zandt

[2004] LegEdDig 24; (2004) 12(4) Legal Education Digest 11

53 J Legal Educ 3, 2003, pp 332–339

Most research and writing about law and legal institutions relies on propositions about how law and legal institutions operate. Academics in law schools advancing such propositions should draw on the well-developed principles and tools that are commonplace in social science departments. Unfortunately, because of both their training and the lack of strong norms of peer review, the work of many law school faculty falls short of the standards that prevail in other disciplines.

So the question can be asked: what is the comparative advantage of research in a law school? Or put another way, what is the comparative advantage that our faculty have over both practising lawyers and academics in other departments? This is not an abstract question; presidents and provosts at major research universities are starting to ask this very question and will push law school deans to develop a strategy and an answer.

But the world has changed in a way that reduces the comparative advantage of law faculty in this area vis-à-vis practising lawyers. First, specialisation has increased dramatically in law practice, and the number of important substantive areas of law has skyrocketed. The sheer growth in the number of reported cases, statutes and regulations makes it much more difficult for anyone to master the doctrinal trends of broad areas effectively. Second, practising lawyers have specialised, creating a type of division of labor for the creation of knowledge. The tendency for law school appointments committees to focus on ‘intelligence’ is to focus too much on a necessary but not sufficient condition for success in academia. In many ways, those lawyers are in a much better position than full-time academics, largely removed from practice, to understand the doctrinal shifts and developments in their areas. Practitioners have substantial market incentives to stay abreast of current developments in a specialised area. While there will certainly remain legal scholars devoted to doctrinal analysis, it is not clear that there is any good reason for them to be located exclusively in academic institutions.

The person with a full-time academic appointment can contribute to the body of knowledge something that the practising lawyer generally cannot: research that is rigorous and well supported and not simply a glorified statement of her personal political or social views and beliefs. Moreover, because of the economic independence of the position that an academic faculty appointment confers, a law teacher is not charged with attempting to advocate a client’s position or with generating immediately usable and saleable results. The key factor in such production is that the research conforms to the accepted norms of testing for reliability and validity. Our comparative advantage again is not found in the articulation of our individual political and social policy preferences, no matter how elegant our rhetoric may be, but in contributing the actual research that supports or fails to support such preferences.

That difficult question is traditionally answered by the assertion that law is an autonomous discipline similar to physics or psychology with its own independent methods and approach. That view is an inaccurate one. Law and legal institutions are merely a sub-set of social and political phenomena that are studied every day in economics, political science and other departments. Being social products, they are formed and operate on the same principles as any other social phenomena. Those phenomena can be usefully analysed from any number of discrete disciplinary perspectives.

The best reason for the existence of law schools as separate entities is not that there is some special ‘legal methodology’, but rather that it makes great sense for people interested in a common set of problems and institutions to work in a common environment in order to share knowledge of what is a complex set of social institutions.

Because we are educating students for the relatively well-paid profession of law, law schools can generate revenue that allows us to pay law faculty substantially more on average than our colleagues in other departments are paid. That certainly makes law positions (or faculty positions in the other professional schools) more attractive. But it also means that most law students have a different motivation than graduate students in a PhD program. This implies greater teaching demands on law faculty; we are not just teaching what we do every day in our research.

While many of these academics certainly contribute to the advancement of theory, their research is grounded in the development and application of such theory to a reasonably well-defined set of phenomena. The research faculty of the future law school will be composed largely of academics with a strong disciplinary training in one of the social sciences, who are also well-trained lawyers with a strong grasp for the functioning of law and legal institutions.

In such a discipline-based law faculty the research faculty would not consist of a large group of ‘real’ law professors and a small number of ‘exotic’ social scientists who are castoffs from other departments. Instead, almost every one of them would have a JD degree and some experience in law practice; in addition each would be trained in a disciplinary approach, in most cases having earned a PhD. Each of these discipline-based faculty would be in the law school because they wanted to investigate legal issues and institutions among a group of other high-quality scholars interested in similar problems. Moreover, these discipline-based faculty would have a much stronger understanding of the institutional working of law and legal institutions than any member of a social science faculty is likely to have.

An effective lawyer today has to have a wider set of skills and knowledge than the practising lawyer of 20 years ago. The curriculum should provide basic instruction in statistics, accounting, and finance as well as some introduction to research design. It may be that the market for young lawyers will change, but currently there is no premium from employers for this skill.

What the law school should have is a broad range of faculty bringing to bear a diverse set of disciplinary and methodological skills from different disciplines on research topics in law and legal institutions. While these ideas help a little, a far more effective approach is to hire scholars who bring strong training in the disciplinary skills in addition to their legal training.

The reality is that many distinguished social science departments have very successfully over the years figured out how to disentangle relative contributions to research, while recognising that in most areas collaborative research adds value to the process.

At this point, it is probably not sensible for any law school to insist on two full-time staff of the type they suggest, not only because there are not yet a sufficient number of faculty at most law schools doing this type of work but also because the range of applications needed and methodologies used is great. It makes more sense for us right now to rely on shared individual faculty expertise in different programs.

Many of us in the law school world would love to see peer review be the norm for the outlets for our faculties’ research. There are currently many more law reviews than there are law schools in this country, and it is not too far from the truth to say that if you can write an article that is in reasonably coherent English, you can find a publication outlet for your work. Moreover, even a placement in one of the very top student-edited journals is suspect; the quality of articles in those journals varies much more than it does in the top peer-reviewed journals of other disciplines.

The problem is that student-edited journals are now embedded not only in our institutional identity, but as a very practical matter in our educational system. At most law schools, writing a comment or note and participating on the journal has a strong pedagogical function for which students are awarded various types of academic credit.

The law faculties of the future (at least the part of the faculty engaged in research) will be strongly discipline based, not only well trained and fluent with the workings of law and legal institutions but also strong in their methodological and theoretical training in research methods and ideas.