Interdisciplinary legal scholarship: What can we learn from princeton's long-standing tradition?

Law Library Journal

Volumn 99, Issue 4, 2007, Pages 771-792

  Hollander, David A ^a  

^a PRINCETON UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 38049140707     PISSN: 00239283     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (107)

1. See Richard A. Posner, The Decline of Law as an Autonomous Discipline: 1962-1987, 100 HARV. L. REV. 761(1987) [hereinafter Posner, Decline];
2. Richard A. Posner, The Present Situation in Legal Scholarship, 90 YALE L.J. 1113 (1981) [hereinafter Posner, Present Situation];
3. see also Jack M. Balkin & Sanford Levinson, Law and the Humanities: An Uneasy Relationship, 18 YALE J.L. & HUMAN. 155, 166-73 (2006) (documenting the turn to interdisciplinary legal scholarship in the legal academy);
4. Roger C. Park & Michael J. Saks, Evidence Scholarship Reconsidered: Results of the Interdisciplinary Turn, 47 B.C. L. REV. 949, 949 (2006) (noting how evidence law scholarship has become "decidedly interdisciplinary");
5. Jeremy A. Blumenthal, Law and Social Science in the Twenty-First Century, 12 S. CAL. INTERDISC. L.J. 1, 1 (2002) (discussing the "growing trend" and "increasing number" of law review articles that use "social science - [and] psychology in particular - to inform legal theory");
6. Mark Tushnet, Interdisciplinary Legal Scholarship: The Case of History-In-Law, 71 CHI.-KENT. L. REV. 909 (1996) (noting trend toward interdisciplinary scholarship and, for law and history scholarship, questioning whether it can satisfy the quality standards of historical scholarship);
7. Graham C. Lilly, Law Schools Without Lawyers? Winds of Change in Legal Education, 81 VA. L. REV. 1421, 1427-35 (1995) (discussing decline of doctrinal approach to law and rise of theoretical approach, including interdisciplinary legal studies);
8. George L. Priest, The Growth of Interdisciplinary Research and the Industrial Structure of the Production of Legal Ideas: A Reply to Judge Edwards, 91 MICH. L. REV. 1929 (1993) (defending increased volume of interdisciplinary legal scholarship);
9. William M. Landes & Richard A. Posner, Influence of Economics on Law: A Quantitative Study, 36 J.L. & ECON. 385, 424 (concluding that through the 1980s, "the traditional approach [to legal scholarship]-what we call 'doctrinal analysis'-was in decline . . . relative to interdisciplinary approaches");
10. Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 MICH. L. REV. 34 (1992) (criticizing trend toward interdisciplinary legal scholarship).
11. It is not the purpose of this section to offer an exhaustive analysis of varieties of and trends in legal scholarship and education, but rather to sketch the contours of both traditional and interdisciplinary legal scholarship and describe the shift toward the interdisciplinary model.
12. Posner, Decline, supra note 1, at 762.
13. Id.
14. Posner, Present Situation, supra note 1, at 1113.
15. Id. at 1114.
16. Id.
17. Id.
18. Frederick Schauer & Virginia Wise, Nonlegal Information and the Delegalization of Law, 29 J. LEGAL STUD. 495, 514 (2000).
19. See Posner, Decline, supra note 1, at 762-63.
20. The other legal sphere where this change has been considerable is in law practice. Just as law scholars have increasingly turned to nonlegal sources, judges have increasingly decided cases and litigants have increasingly argued for legal outcomes using nonlegal sources, such as social science studies. See, e.g., Henry F. Fradella, A Content Analysis of Federal Judicial Views of the Social Science "Researcher's Black Arts," 35 RUTGERS L. J. 103, 106-16, 168-70 (2003) (documenting the rise of the use of social science studies by courts and proposing that federal judges have become increasingly hostile to the use of such studies as evidence);
21. Schauer & Wise, supra note 9, at 497.
22. Posner, Decline, supra note 1, at 767-77.
23. Others have taken up this charge. See, e.g., Edwards, supra note 1;
24. Priest, supra note 1.
25. Less well established is a corresponding shift in legal education, although such a shift, if less pronounced, is occurring. In November 2006, Stanford Law School announced a new model of legal education. According to a press release, interdisciplinary studies would form an important component of a new "3D" model because "lawyers must now work in cross-disciplinary/cross-professional teams" to best serve clients. In addition to substantive curricular changes, Stanford Law School also made a technical change by moving its academic calendar from the traditional law school semester schedule to the quarter system used by the larger university. Stanford Law School Press Release, A "3D" JD: Stanford Law School Announces New Model for Legal Education (Nov. 28, 2006), http://www.law .stanford.edu/news/pr/47/. While such a change certainly was meant to facilitate easier cooperation with other university departments, it also may be said to symbolize the end of the separation between law and the larger academic world.
26. James G. Milles, Leaky Boundaries and the Decline of the Autonomous Law School Library, 96 LAW LIBR. J. 387, 388, 2004 LAW LIBR. J. 25, ¶ 2.
27. Id. at 389, ¶ 5 ("rooted in a Langdellian view of the scientific nature of the study of law").
28. Id. at 390-91, ¶ 7-10 (countering typical justifications for law library autonomy: law libraries are mainly "reference units"; "the law library provides the entire universe of information that law scholars need"; and "legal information is so abstruse and specialized that it is of interest only to the law school community").
29. Id. at 404, ¶ 39; 413, ¶153.
30. See, e.g., Albert Brecht, Changes in Legal Scholarship and Their Impact on Law School Library Reference Services, 77 LAW. LIBR. J. 157, 169 (1984-85) (noting that in doing interdisciplinary legal research "[l]aw faculty members frequently will have to look beyond their own library for research materials; their librarians will have to rethink how to satisfy faculty research needs in an [interdisciplinary] environment where those needs cannot always be met with in-house material");
31. Mathew F. Dee, Law Library Purchasing in an Interdisciplinary Era, 63 LAW. LIBR. J. 19, 26 (1970) ("It behooves us to learn more thoroughly the information sources available in other disciplines as law continues to overlap. .. .").
32. Mary Whisner, Researching Outside the Box, 95 LAW LIBR. J. 467, 472-73, 2003 LAW LIBR. J. 36,¶ 16 (citing Interview with Kristen A. Henderson, law librarianship student, University of Washington, in Seattle, Wash. (Feb. 2003)).
33. Milles, supra note 15, at 421, ¶69.
34. Id. Note that Milles is calling for librarians to conduct the type of empirical studies that legal scholars are increasingly conducting.
35. See infra ¶ 34-38 for a discussion of this type of research. Such studies will use hard data to better understand the needs of our patrons.
36. Id. at 422, ¶ 70. Milles spends a significant part of his article debunking the myth (quite effectively, in my view) that the American Bar Association accreditation standards require law library autonomy.
37. See id. at 393-400, ¶ 13-30.
38. For a full listing of Princeton's legal databases, see Princeton University Library Articles and Databases, Law, http://library.princeton.edu/ catalogs/articles.php?subjectID=19 (last visited July 3, 2007).
39. THOMAS JEFFERSON, A MANUAL OF PARLIAMENTARY PRACTICE: FOR THE USE OF THE SENATE OF THE UNITED STATES (Washington City, S.H. Smith 1801).
40. THOMAS JEFFERSON, JEFFERSON'S PARLIAMENTARY WRITINGS: "PARLIAMENTARY POCKET-BOOK" AND A MANUAL OF PARLIAMENTARY PRACTICE (Wilbur Samuel Howell ed., 1988).
41. Duncan Alford, who held the law librarian position at Princeton several years ago and is currently the library director at the University of South Carolina School of Law, noticed the works by Jefferson in the open stacks. He was surprised they were not in the rare book vault until he learned that the 1801 edition was there. A quick walk through the stacks easily reveals similar finds.
42. 372 U.S. 335(1963).
43. The total number of volumes could not be calculated because a significant number of them-especially older volumes - do not have item records in the library's cataloging system.
44. ALEXANDER LEITCH, A PRINCETON COMPANION 370 (1978).
45. JAMES CARNAHAN, LAW SCHOOL OF THE COLLEGE OF NEW JERSEY (1846) (pamphlet on file with University Archives, Mudd Library, Princeton University);
46. see also 2 JOHN MACLEAN, HISTORY OF THE COLLEGE OF NEW JERSEY: FROM ITS ORIGINS IN 1746 TO THE COMMENCEMENT OF 1854, at 319 (1877).
47. President's Report, 5 Princeton University Board of Trustees Minutes and Records 164, 177 (June 26, 1871 ) (available in University Archives, Mudd Library, Princeton University).
48. See LEITCH, supra note 30. at 282.
49. Id. "Shortly after his election as president.. . [of Princeton University, Woodrow] Wilson, in a report to the trustees, proposed a school of jurisprudence in which law would be taught. . . ."
50. Id.
51. 17 Princeton University Board of Trustees Minutes and Records 9 (Oct. 24, 1918) (available in University Archives, Mudd Library, Princeton University).
52. 21 Princeton University Board of Trustees Minutes and Records 23 (Apr. 12, 1923) (available in University Archives, Mudd Library, Princeton University) (authorizing John G. Hibben, President, Princeton University, to appoint a special committee to study the establishment of a law school at Princeton University).
53. See Maxine Lipeles, Princeton Weighing Law School Plan, N.Y. TIMES, Dec. 29, 1974, at 47.
54. See Letter from Edward Sheldon, Chairman, Special Committee to Study the Establishment of a Law School at Princeton University, to James Byrne (May 2, 1923) (on file at University Archives, Mudd Library, Princeton University); Princeton and Legal Education: A Preliminary Survey 6 (Oct. 13, 1975) [hereinafter Preliminary Survey] (on file with University Archives, Mudd Library, Princeton University).
55. See Memorandum of Some Ideas Concerning a New Type of Law School Which Might with Advantage be Established at Princeton University 1 (Nov. 1925) (on file at University Archives, Mudd Library. Princeton University);
56. Preliminary Survey, supra note 38. at 6.
57. LEITCH, supra note 30, at 370.
58. Id.
59. WALTER F. MURPHY ET AL., AMERICAN CONSTITUTIONAL INTERPRETATION (2003).
60. WALTER F. MURPHY, CONSTITUTIONAL DEMOCRACY: CREATING AND MAINTAINING A JUST POLITICAL ORDER (2007).
61. CHRISTOPHER L. EISGRUBER & LAWRENCE G. SAGER, RELIGIOUS FREEDOM AND THE C ONSTITUTION (2007). Professor Eisgruber came to Princeton from New York University Law School and is the former director of Princeton's Law and Public Affairs program. He is currently the provost of the university.
62. KEITH E. WHITTINGTON, POLITICAL FOUNDATIONS OF JUDICIAL SUPREMACY: THE PRESIDENCY, THE SUPREME COURT, AND CONSTITUTIONAL LEADERSHIP IN U.S. HISTORY (2007).
63. For a more detailed history of the LAPA program, see Christopher L. Eisgruber, Program in Law and Public Affairs, in 3 ENCYCLOPEDIA OF LAW AND SOCIETY 1197 (David Clark ed., 2007).
64. For the full list of courses, see Program in Law & Public Affairs, Current Courses, http://lapa .princeton.edu/2006-2007courses.php (last visited July 28, 2007).
65. For example, in 2006 alone, Princeton faculty publications in the legal literature included: Kim Lane Scheppele, We Are All Post-9/11 Now, 75 FORDHAM L. REV. 607 (2006);
66. Ken I. Kersch, Everything is Enumerated: The Developmental Past and Future of an Interpretive Problem, 8 U. PA. J. CONST. L. 957 (2006);
67. Orley Ashenfelter et al., Evaluating the Role of Brown v. Board of Education in School Equalization, Desegregation and the Income of African Americans, 8 AM. L. & ECON. REV. 213 (2006);
68. Linda Hamilton Krieger & Susan T. Fiske, Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment, 94 CAL. L. REV. 997 (2006);
69. Christopher L. Eisgruber, Secularization, Religiosity, and the United States Constitution, 13 IND. J. GLOBAL LEGAL STUD. 445 (2006);
70. Carol J. Greenhouse, Separation of Church and State in the United States: Lost in Translation? 13 IND. J. GLOBAL LEGAL STUD. 493 (2006);
71. Kim Lane Scheppele, Guardians of the Constitution: Constitutional Court Presidents and the Struggle for the Rule of Law in Post-Soviet Europe, 154 U. PA. L. REV. 1757 (2006);
72. Anne-Marie Slaughter, A New U.N. for a New Century, 74 FORDHAM L. REV. 2961 (2006);
73. Keith E. Whittington, Recovering "From the State of Imbecility," 84 TEX. L. REV, 1567 (2006)
74. (reviewing CALVIN H. JOHNSON, RIGHTEOUS ANGER AT THE WICKED STATES: THE MEANING OF THE FOUNDERS' CONSTITUTION (2005));
75. Kim Lane Scheppele, Small Emergencies, 40 GA. L. REV. 835 (2006);
76. Ran Hirschl & Christopher L. Eisgruber, Prologue: North American Constitutionalism? 4 INT'L J. CONST. L. 203 (2006);
77. Kim Lane Scheppele, North American Emergencies: The Use of Emergency Powers in Canada and the United States, 4 INT'L J. CONST. L. 213 (2006);
78. Daniel T. Rodgers, Living Without Labels, 24 LAW & HIST. REV. 173, (2006);
79. Robert P. George, Are Human Embryos Human Beings? If So, What Level Of Respect Do Embryonic Human Beings Deserve? 13 TRINITY L. REV. 27 (2006);
80. Ken I. Kersch, Justice Breyer's Mandarin Liberty, 73 U. CHI. L. REV. 759 (2006)
81. (reviewing STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION (2005));
82. Christopher L. Eisgruber, Justice Stevens, Religious Freedom, and the Value of Equal Membership, 74 FORDHAM L. REV. 2177 (2006);
83. Ken I. Kersch, How Conduct Became Speech and Speech Became Conduct: A Political Development Case Study in Labor Law and the Freedom of Speech, 8 U. PA. J. CONST. L. 255 (2006);
84. Ken I. Kersch, The Supreme Court and International Relations Theory, 69 ALB. L. REV. 771 (2006);
85. Keith E. Whittington, Give "The People" What They Want? 81 CHI.-KENT L. REV. 911 (2006).
86. See sources cited supra note 1.
87. For this article, "social sciences" is meant to include most non-humanities fields, while not meaning to discount the existence of humanities-based interdisciplinary legal research, including, among others, law and history, law and philosophy, and law and religion. This limitation is used because the social science-based legal literature does constitute a significant portion of the interdisciplinary legal scholarship, and this type of scholarship is, by far, the most common at Princeton University. As a side note, I'd like to highlight an example of "law and religion" scholarship that also relates to the topic at hand. Chaim Saiman has written an article that discusses Langell's conception of law and the emergence in Eastern European yeshivot of a possibly parallel legal movement. This piece is an interdisciplinary work about non-interdisciplinary legal movements of the nineteenth century. Chaim Saiman, Legal Theology: The Turn to Conceptualism in Nineteenth Century Jewish Law, 21 J.L. & RELIGION 39 (2005).
88. Priest, supra note 1, at 1933.
89. Id.
90. See Milles, supra note 15, at 420-23, ¶¶ 67-71.
91. I recognize that my advice throughout this article to collaborate with the main university library cannot apply to independent law schools that are not connected to a larger university. Perhaps collaborative arrangements with local universities that do not have a law school will provide the opportunity for these law librarians to work with librarians in other subject areas.
92. Peter H. Schuck, Why Don't Law Professors Do More Empirical Research? 39 J. LEGAL EDUC. 323 (1989).
93. Id. at 323.
94. At the Princeton University Library, the data lab is called Data & Statistical Services and is basically a room containing computers capable of running the complex statistical software. At Princeton, the lab is a library unit and not a part of the information technology department.
95. For example, Lee Epstein of Northwestern University School of Law, along with several other scholars, has compiled a data set on U.S. Supreme Court Justices. She describes the set as a multi-user, public database containing a wealth of information on individuals nominated (whether confirmed or not) to the U.S. Supreme Court (John Jay-Samuel A. Alito, Jr). Specifically, the Database houses 263 variables, falling roughly into five categories: identifiers, background characteristics and personal attributes, nomination and confirmation, service on the Court, and departures from the bench. Lee Epstein et al., The U.S. Supreme Court Justices Database, http://epstein.law.northwestern.edu/ research/justicesdata.html (last visited July 28, 2007).
96. ERIC HELLAND & ALEXANDER TABARROK, JUDGE AND JURY: AMERICAN TORT LAW ON TRIAL (2006).
97. Minna J. Kotkin. Outing Outcomes: An Empirical Study of Confidential Employment Discrimination Settlements. 64 WASH. & LEE L. REV. 111 (2007).
98. Christopher A. Cotropia, Nonobviousness and the Federal Circuit: An Empirical Analysis of Recent Case Law. 82 NOTRE DAME L. REV. 911, 914 (2007).
99. Harvard Law Sch. Library, Data Resources, http://www.law.harvard.edu/ library/collections/data/ (last visited July 3, 2007).
100. Micah Kaplan. Supreme Court Decision Making: Legal vs. Attitudinal Models and Individual vs. Institutional Performance in Establishment Clause Jurisprudence (Spring 2007) (unpublished junior research project, Princeton University) (on file with author).
101. See id. at 14-25.
102. "Much of empirical research is grunt work." Schuck, supra, note 55, at 331.
103. Amanda Rinderle, Marbury v. Madison: Citation Pattern and Content Analysis in the Supreme Court, Circuit Courts and State Courts (Fall 2006) (unpublished junior research project, Princeton University) (on file with author).
104. Marbury v. Madison, 5 U.S. ( 1 Cranch) 137(1803).
105. See Rinderle, supra note 66, at 6-11.
106. Id. at 27.
107. Id.