Thursday, January 19, 2012

Legal Scholarship and Intra-Disciplinary Conversations

-- Posted by Neil H. Buchanan

In my latest Verdict column (here), I resume my defense of the legal academy, in this case against attacks from those who accuse us of writing articles that are a waste of everyone's time. I summarize that basic line of attack by quoting a now-famous line from Judge Cabranes's speech to the American Association of Law Schools conference earlier this month: "Legal scholarship is a conversation among members of the academy with the rest of us reading — maybe."

The case for the defense includes observing that legal scholarship can be relevant in ways that judges might find unhelpful but that are important to the development of the law in other ways -- especially articles that (like almost all of my work) address legislative/policy questions. Beyond that easy (but apparently not obvious) point, I also suggest that the unique interdisciplinarity of legal scholarship is its greatest strength, in that we are able to view ideas from academic fields through a legal lens that other scholars lack. I note examples of non-law professors who commit simple legal errors that undermine their larger points. I also readily acknowledge that legal scholars commit simple errors that specialists in other fields would never commit.

Here, I want to pick up on a point that I make only briefly in the Verdict column, but that I have been struggling with for some time now. Because I began my academic career as an economist before moving into law, I often think back to the intramural conversations that economists carry on. I have always been critical of the ways in which economists agree to rule out certain points of view, while asserting that "everyone already knows" about one objection or another to their basic approach. Until recently, I was somewhat flummoxed by the idea that an academic field could develop disciplinary norms that deem certain deep critiques to be outside of the bounds of polite conversation. I am now, however, converging on an understanding of the conversations among economists that accepts the importance of those common limiting assumptions, but that emphasizes the important role performed by those people outside the field who do not share those assumptions.

When economists build their models, they explicitly or implicitly agree to set aside certain potential (and potentially fatal) objections. In some cases, that agreement is tentative and quite conscious, such as the use of "rational expectations" in various models. Many economists openly and strenuously disagree with any notion that real people are hyper-rational in the sense that such models require, but they are nonetheless willing to accept rational expectations arguendo, as a means of exploring other issues. In that way, we are not all left fighting anew the battles that dominated economics in the 1970's and 80's (regarding the believability of the rational expectations assumption), which were exhausting and ultimately led nowhere. I continue to worry, as many others do, about the danger of becoming habituated to arguing on one's opponents playing field, but there is certainly a good affirmative case to be made that we must all sometimes be willing to work from a shared set of assumptions, no matter how wrong those assumptions might be.

In part, agreeing to make certain assumptions is valuable simply because doing so makes it possible to learn anything at all. I used to scoff whenever I heard an economist say that we had to accept certain assumptions because "it makes the math tractable," because that seemed ultimately to be a different way of saying that we are looking under the lamppost because the light is better there. On Paul Krugman's blog, he has recently been discussing the use of the rational expectations assumption in New Keynesian models. He stipulates that he does not think that those models explain the real world, nor does he endorse the rational expectations assumption as a realistic description of the world, but those models do allow us to prove that certain predictions (such as the existence of involuntary unemployment) can be generated even from models that assume that everyone is hyper-rational.

Other assumptions are not as controversial among economists, but they serve the same purpose. For example, in nearly all cases, economic models are based on the assumption that individual preferences are (at least weakly) "separable," which essentially means that a person's happiness is independent of the happiness of others. Do economists not know about altruism? Of course they do, but economic models simply do not generate any answer at all if we do not make some limiting assumption, and the profession has made progress in important ways by agreeing that it is not necessary to justify assuming away altruism before discussing other issues. This, along with many other such assumptions, allows us to say something.

The problem comes when we try to make policy statements for real-world situations, based on models that have been built upon no-longer-examined assumptions. Economists who "know" that, for example, the assumptions underlying aggregate production functions are hard to justify have nonetheless been willing to make policy recommendations that are based on precisely those questionable assumptions.

Again, as I mentioned above, part of the problem is that it is easy to forget (while one's mind focuses on other questions) what one has accepted arguendo. But the bigger issue, I now think, is that economists (and surely scholars in every field) need to be able to talk to each other without starting from ground zero each time. Which is exactly where scholars from other disciplines come in. Legal scholars who know the underlying structure of modern economic reasoning can point out when certain shared assumptions matter, without worrying about being reminded that "these are things that we've agreed to move past." (We will be scolded along those lines, of course, but we do not risk our professional lives by refusing to play by another field's rules.)

Many of my blog posts over the last few years have focused on "the baseline problem," which essentially says that, because the standard of efficiency in economics is based on (among other things) the legal framework within which market interactions take place, any policy that is deemed inefficient within one legal framework can be efficient in another. The most evocative example remains slavery: When slavery is legal, abolishing slavery is inefficient; but when slavery is illegal, enslaving people is inefficient.

When I (and others) try to make arguments that ultimately amount to questioning economists' shared baseline, even the most sympathetic and non-dogmatic economists are often simply confused about how to reply. They know that there is no neutral baseline, but they also know that they cannot do what they do without assuming that one exists. Interdisciplinary interactions allow them to continue to do what they do, while allowing the rest of us to reserve the right to refuse to play along.


andy said...

"but that are important to the development of the law in other ways -- especially articles that (like almost all of my work) address legislative/policy questions."


I question whether this argument provides an adequate defense of the most theoretical scholarship.

In the tax world, with which you are of course familiar, it seems no defense to say that while judges might not be reading theoretical tax scholarship, that the policymakers are.

I've personally worked with and interacted with many people in the tax field who make tax policy decisions (members of the congressional tax committees, former IRS commissioners, staff of the Treasury Office of Tax Policy, Assistant Secretaries of the Treasury and so on), and never was any theoretical tax scholarship ever mentioned. This is not to say that there isn't some policymaker out there who reads such material; but it is fair to say that this type of scholarship cannot be defended because of its use to legislators.

When tax scholarship does gain traction with tax policymakers, it's usually (if not exclusively) tax scholarship that is "grounded" in some way to the actual practice of law. Think of Reuven Avi-Yonah's dividend equivalent proposals or Victor Fleischer's carried interest work. Each author presented theoretical and careful policy arguments, but in the context of a concrete problem relevant to decisionmakers. Much of the stuff out there cannot be so described.

I have no doubt that purely theoretical ("impractical") scholarship provides some value, but I'm skeptical that such scholarship can be defended on the grounds that, although judges don't care about it, our nation's policymakers are carefully poring over the metaphysical musings contained in the nation's leading law reviews.

I think it would be far more productive to suggest that theoretical work is best when it does not completely leave "terra firma," to use Cabranes and Breyer's language. Tax academics are well-positioned to think about issues more deeply than are busy practitioners, and we should use this opportunity to advance the law in some way.

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