By Mark Tushnet

The President of the AALS has the responsibility for choosing the theme for the Annual Meeting, the speaker at the annual luncheon, and the topic and format for the plenary session following that luncheon. I hope that this year's theme and sessions will continue the development of the Association as the learned society for law professors. Each of this year's plenary sessions - more about the plural in a moment - brings to the Association a leading scholar in a field, other than law, in which a significant number of law professors have some interest. Here I want to explore some of the issues that arise in connection with law and these allied disciplines.¹

There will be five concurrent "plenary" sessions after the annual luncheon on Sunday, January 4. Distinguished academics in history, philosophy, sociology, ethnic studies, and social psychology will present papers, with a response offered at each session by one law professor, prior to discussion from the floor. My hope is that the papers will model the way in which academics in allied disciplines communicate their scholarly work to their communities.

(For several years, the afternoon of the annual luncheon has had several concurrent sessions, which for historical reasons we've called plenary sessions. The practice developed in response to concerns that full-scale plenary sessions were not the best vehicle for providing the largest number of faculty members with a valuable experience. Such sessions often had panels that were so large that participation from the floor was essentially impossible, and it seemed likely that some significant number of meeting attendees would not find the topic of a single plenary of interest to them. The concurrent plenary sessions have seemed an attractive way to address these concerns. Unfortunately, the new practice requires that the president apologize for the seeming illiteracy of inviting people to speak on a panel that is one of several concurrent plenary sessions. My e-mails to presenters referred to our "oddly named" concurrent plenary sessions. Maybe my successor will be able to figure out some better name for what we do that afternoon.)

Here I want to identify some common problems that arise in connection with the legal professoriate's interaction with allied disciplines, relying mostly on anecdotes and informal observation about our practices and theirs and focusing on history, empirical social science, and philosophy. The problems arise from a number of facts. Our criteria for what is interesting and important often differ from theirs. Law professors are particularly skillful as critical readers of texts, and can readily generate criticisms of work in other disciplines, from which they (or those who listen to them) may mistakenly conclude that such work cannot contribute to our understanding of law.

Take history as an example. Several years ago I had a conversation with one of the country's most prominent academic lawyers, whose work combines philosophy, political science, and - in one sense - history. He asked me what project I was going to work on next. I told him that for years I'd been wanting to get back to a problem in the law of slavery that I'd written about too briefly in my first book. ²   His response was, essentially, bafflement. How, he wondered, could looking at the law of slavery help us understand anything about law today?

Now, there are a number of answers. I hope that the presentation at the annual meeting by Professor Elizabeth Fox-Genovese, with the title, "Nothing New Under the Sun? The Bearing of History Upon Human Affairs as Viewed from the Antebellum South," will provide some. We might learn from history how fallible human beings responded to challenges whose solutions seem easy to us but were hard for them to see - and then might reflect on the implication that some things that seem hard to us now might seem easy several generations from now. We might identify some enduring structures in human reactions to problems, finding it easier to see what they are when we are at some remove from the problems. But, frankly, for myself the real answer to the question, Why study history?, is that what happened in the past can be really interesting, period.

There's another problem for law professors with studying history. The historian's mind-set leads him or her to revel in the details of what happened. The historian's basic story-line, at least these days, is one of complexity and contradiction. For every general conclusion you want to draw about what happened in the past, some good historian will come along and say, "Well, wait a minute. Here's an example of why that conclusion has to be qualified. And here's another, and another. . . ." To the point where the historian's mind-set leads to skepticism about whether we can draw any general conclusions about anything.

That's in deep tension with what we as law professors want. Our aim is to generate rules that regulate fairly broadly. The title of Richard Epstein's 1995 book, "Simple Rules for a Complex World," captures a lot of the normative impulse behind legal regulation, no matter how much each of us might disagree with the particular rules Epstein thinks appropriate. (I think we can see something similar in some of the resistance in the legal academy to that facet of feminist legal thought emphasizing complexity and contradiction, too. Those who resist the feminist arguments impatiently say, we have to decide at some point, and when we do it doesn't help a lot to keep saying, "Well, this is a complex problem with a lot of dimensions, many of which your action fails to take into account," because you can say that about every course of action that you have to take in the real world.)

If, from the law professor's point of view, the problem with the historian's mind-set is complexifying too much, the problem with the empirical social scientist's mind-set is over-simplifying. Present a law professor with an empirical study - particularly one that reaches conclusions at odds with the law professor's intuitions, presuppositions, or, frankly, guild interests - and the professor will immediately generate a standard set of criticisms. People who wouldn't know heteroskedasticity (one of my favorite words in empirical social science) ³   if it jumped up and hit them in the face can generate fifteen variables that were omitted from the model that produced the counter-intuitive result and that, the law professor critics imply, would clearly change the result to the one the professors expected had they been built into the model in the first place.

Most of the time when I hear these objections I have two reactions. The first is captured by George Stigler's celebrated list of critical comments to be delivered on any economics paper you want. The second on Stigler's list is, "Unfortunately, there is an identification problem which is not dealt with adequately in the paper," and the third is "The residuals are clearly nonnormal and the specification of the model is incorrect." ⁴   Stigler's point is that these sorts of criticisms are, for all practical purposes, universally available. Leveling them against a particular study actually casts doubt, not on the study itself, but on the entire enterprise of empirical social science - even though the law professor offering them purports to be happy about good empirical social science, defined, of course, as studies whose results fit the law professor's predispositions.

My second reaction is puzzlement: "How can these people learn anything if they're so skeptical about it all?" Sure, empirical social science is imperfect, but so is every other way of trying to find things out. Personal observation is necessarily limited, anecdotes are, well, anecdotes. Empirical social science doesn't overwhelm everything else you know, of course, and some degree of skepticism about counter-intuitive results is reasonable. But, I think, it probably ought to be an accepting sort of skepticism, looking more for what's likely to be right in the study than for what's likely to be wrong.

Again, the presentations at the annual meeting by three social scientists may provide some insights, not only into their specific subject matters, but into the value of social scientific work for law professors, with our distinctive interests. Howard Gardner will discuss "Good Work in the Law: The Challenge of Integrating Excellence and Ethics," based on an empirical investigation, relying heavily on interviews with lawyers among others, of how professionals go about doing good work in the face of ethical challenges. Ramon Gutierrez, a distinguished historian whose prize-winning book, "When Jesus Came the Corn Mothers Went Away," takes a cultural and economic perspective on social transformation in Mexico and the U.S. Southwest, will discuss "Recent Trends in Ethnic and Racial Studies," where a combination of culturalist approaches and statistical social science has been important. And, finally, Barbara Reskin will describe "The Race Discrimination System: Race, Social Structures, and Social Policy," from a sociologist's perspective.

I've argued so far that law professors ought to have an attitude of skeptical acceptance toward the work of historians and empirical social scientists. Their professional concerns are different from ours, and it's unlikely that what they have to say can be appropriated directly into our work. Still, they do work in fields bordering on ours, and it's likely that we could profit from incorporating some of what they write and talk about into our own thinking.

With philosophy, I think things may be a bit different, and I am particularly interested in finding out how the political theorist we have invited to the annual meeting, Joshua Cohen, will approach his subject, "Human Rights: Is Minimalism All We Can Expect?"⁵   I've been struck, when listening to philosophers address legal issues, about how they do it. Compare a law professor's presentation and a philosopher's, and you'll usually notice a striking difference. The law professor speaks without notes, or from a sketchy outline; the philosopher reads a paper. I think the difference results from something distinctive about the philosopher's professional orientation. Precision - getting a point exactly right - matters more to philosophers than law professors, who tend to think, I believe, that getting in the ballpark of an interesting idea is more important than getting the idea exactly right. ?"⁶   And, while you might get it exactly right in a written paper, a less formal presentation is likely to lack the desired degree of precision. So, you read your paper, guaranteeing that the precision of your oral presentation matches that of the written one.

There's something to be said for each orientation. Sometimes I wonder, though, whether law professors might go wrong in adopting the philosopher's approach - not to the manner of presentation, of course, but in the search for a degree of precision that might be inappropriate in law. I've been struck, for example, by some recent scholarship that seeks to apply the philosopher's tools to some public law topics, where, it seems to me, the degree of precision sought in the articles is higher than is helpful to those who want to think about law. ?"⁷   Supreme Court justices aren't philosophers, and the Constitution is a document for practical governance, using terms that should be given a philosophical meaning only to the degree that doing so helps us understand it as a tool of governance. Notably, the works I have in mind have been written by law professors with primary training in law, who have picked up the philosophers' tools to supplement what - and how - they learned about the law. If the balance between skepticism and acceptance is skewed toward undue skepticism in connection with history and empirical social science, perhaps it is skewed toward undue acceptance in connection with philosophy.

Law professors have come to deal extensively and systematically with allied disciplines. We clearly have benefited from doing so. I hope that the 2004 Annual Meeting will provide an occasion, not merely for additional interactions between law professors and scholars in allied disciplines, but for reflection on the enterprise that many of us have taken for our own.

¹A good collection of essays on interdisciplinarity and the law is Symposium, Trends in Legal Citations and Scholarship, 71 Chicago-Kent Law Review 743-1013 (1996) (edited by Fred R. Shapiro and Jean Stefancic). This column elaborates on some themes I first developed in my contribution to that symposium.
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²I eventually did, the result being published earlier this year.
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³Don't ask me what it means. The illustration I found on the Web - "When you have heteroskedasticity, the spread of the dependent variable Y could depend on the value of X, for example" - doesn't help me at all.
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⁴George J. Stigler, The Conference Handbook, 85 J. POL. ECONOMY 441, 442 (1977). The first item on Stigler's list is economics-specific: "Adam Smith said that." But, of course, that's a variant of the two-barreled comment, "Everybody knew that already, and it's wrong."
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⁵And, particularly, whether he draws his notion of minimalism from Cass Sunstein's work, or simply refers to that work as something analogous to what he's interested in as a philosopher. Unfortunately, I'll have to rely on others' reports on Professor Cohen's session, because - thinking of myself primarily as a law professor/historian (and a student of Professor Fox-Genovese's husband) - I've chosen to moderate her session.
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⁶This may be a bit too self-referential, but sometimes I think that one of my roles as a scholar is to notice really interesting ideas other scholars have had and then to move them from somewhere in the outfield to somewhere somewhat closer to home plate.
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⁷I'm less conversant with the use of philosophy in private law subjects, but my sense is that there may be a similar problem there.
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* This article appeared in the August 2003 AALS Newsletter.