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Why Don't Economists Read the Legal Literature?

posted by Adam Levitin

When I read economics articles, I'm often struck by the absence of citations to the legal literature. Citations to legal works, even when very much on point, are frequently missing from literature reviews and citation lists. I don't think this is just a matter of citation; economists don't seem to generally be reading the legal literature. And this can result in embarassing mistakes in the economics scholarship, as the legal regimes affecting the subject of study are often misunderstood. (In fairness, I've seen similar problems in the legal literature...)

There are exceptions to be sure.  Some notable articles and scholars are cited routinely, and I've also noticed that economists will cite articles in some of the law & economics journals (like JLE and JLEO), but then economists also publish in those journals. This contrasts with the legal literature, which frequently cites to the economics literature. I'm curious what might explain this phenomenon.  

Here are some non-exclusive possible explanations (in no particular order); I'm interested in hearing readers thoughts:

  • Lack of access to the literature.  The legal literature is available via Lexis and Westlaw, which economists don't have access to.  I'd think there'd be greater access to Hein and to JStore, which has some legal articles (including JLE). Ultimately, I find this argument less than compelling in the age of SSRN. 
  • Long articles + lack of attention span. Legal articles tend to be much longer than economics articles. I'm certainly guilty of this. The article length problem is in part because of student editors. While student editors complain about length, they demand inane levels of footnoting and articles have to be written with a fair amount of background so that they can be understood by non-expert student editors. All of that adds length. So the articles are long. But I don't think of economists as a group with preternaturally short attention spans, and in any event it's pretty easy to figure out how to skip over the background sections and suck out the marrow from most law review articles.
  • Discomfort with methods and normativity.  Economists like formal models and experiments. Those forms of scholarship are not the norm in the legal literature; law isn't a social science. (But as the result of that footnote obsession, we tend to document our sources far better!) One of the great virtues of legal scholarship is its strong normative bent, which is so taboo to many social scientists.  (This is not to contest that we have seen a move over the past generation to make law and judging in particular, more "scientific.") Perhaps this leads economists to eschew the legal literature in general.
  • Disciplinary hubris. Perhaps economists simply think that there isn't anything to learn from legal scholarship. It's certainly easier to think of disciplinarily hubristic economists than say sociologists or anthropologists or historians who are hubristic about their disciplines. The other way of presenting this argument is just that legal scholarship isn't very good, so why bother to engage with it. It's hard to argue this point conclusively, but I'd say that as with the scholarship in any field, there's good and bad legal scholarship, and the existence of shoddy work isn't an excuse for ignoring the meritorious work. 

I don't find any of these explanations very satisfactory. Maybe I'm overlooking something big and obvious. Thoughts? 

Comments

You're too young to remember, but it wasn't that long ago that "finance" and "economics" were two separate sodalities, each chasing the same problems, often as if the other did not exist. And there was a time before lawandeconomics hived off from economics. Although my own guess is that lawandeconomics itself is pretty anemic these days (in law school, the buzz seems to have moved to finance, which may or may not be a subset of economics).

Many macro-economists believe institutional frameworks don't really matter. Stiglitz once noted that the Fed doesn't have banks or credit in its forecasting models.

Perhaps only tangentially related, but I once got referee comments on a paper submitted to an econ journal that told me the contractual arrangements I was describing were illegal (the paper was about financing cooperatives). I presume it was an economist referee. Of course, the paper didn't note the state where the coop was incorporated, so the referee couldn't know which state's law to apply. And the coop had been in existence with that financing for 20 years, reviewed by multiple lawyers from developers and lenders. But no matter, the economist referee was sure the arrangement wasn't legal.

Well this goes further even in finance there are econophysics people who talk about the same things that mainstream finance people talk about but will refuse to cite each other. They almost live in a parallel universe with their own journals.

I'll raise my hand and admit that I'm one of those economists that writes about law-related topics that probably doesn't cite law papers enough. My own personal experience has been that the following things prevent me from citing law papers more. For me, these are listed in order importance:

- Discomfort/distrust with methods: Many of the law papers that I read have a lot of exposition in them but very few concrete facts that are supported by good data. Thus, when I read a law paper I often feel like I'm reading someone's opinion, for which they might have found some anecdotal stories to back up their views. While this is informative for me, rarely do I fully trust what is being said. To be fair, I often don't fully trust what is written in econ papers either, but they at least will have some data and a plausible identification scheme to back up their argument.
- Familiarity: We all tend to focus on things that we are already familiar with. Since I already know the econ literature, it's easier for me to cite those papers, rather than hunt down a law paper that I'm unfamiliar with. Also, since my colleagues are unfamiliar with the law literature as well, adding in law citations is often like adding clutter to the paper--they can't use those citations as reference points for where my paper sits in relation to other literature. That decreases the incentive to add those citations. Not saying that's the correct thing to do (it's not!), but I think it's a big part of it. (Side note: is it really true that law papers cite the econ literature more than vice versa? Most of the law papers I read don't cite many econ papers at all. I would have guessed that econ papers cite more law papers than the other way around. Maybe we are each biased to think that our discipline does a better job of crossing over?)
- Too much literature: Related to the above point on familiarity, for most topics there is so much literature out there already, that wading through a whole other discipline's set of papers is simply too much work. This is different from lack of access--we have access to everything, but we lack search engines that are good enough to weed out all of the somewhat-relevant law papers to leave us with a list of papers that is manageable and useful.

For me, it's probably those three things. The length of article doesn't matter--we can read long articles if they're of interest. Although I detest the extreme over-use of footnotes in law papers, it doesn't make me not read them!

I don't know what "the legal literature" is - law reviews and journals? Well, there isn't much in them of use to economists (or practicing attorneys either!). Many journal topics are only tangentially related to economics. There is negligible overlap in methodologies. Many law review articles are comprised of textual analyses, rhetorical claims and questions, abstract philosphical expositions, normative screeds and so on. Someone who is trying to impress an economics faculty to get taken on won't with any of that. Legal academic writing has become increasingly insular and unread, exactly the opposite of what the crits thought they would bring about.

I'm one of the few practicing lawyers out there who, in the course of practice, actually works with economists as economists. My economist clients view me as a useful source of institutional information. But the stuff they value is seldom in the law review literature, with its focus on normative analysis of legal rules.

One other thing I've noticed. Business school economists are more lawyer-friendly than economics department economics, probably because it is impossible to deal with finance in complete ignorance of law.

The pressure to publish is immense. There are huge rewards for publishing, and severe penalties for not. So economists, especially when young, are going to spend very little time on anything that doesn't optimize publication, like reading outside of their field – or even outside of their very narrow specialization. They already have so much work to do just to keep up with and advance even a very narrow specialty.

For the good of society, it's efficient for there to be a lot of cross-work and cooperation across fields, but because it's so little rewarded by the economics journals gatekeepers we see very little of it.

What do economists read other than other economists? They surely don't read political scientists (except those who are quasi-economists), and e.g. if writing about social policy they don't read sociologists or welfare-state specialists even when those fields would be very useful to them.

Having trained in economics, the first rule I learned about writing articles is: whatever you have to say, say it in the first paragraph. If that's sufficiently interesting readers will skip to the meat of the paper and see if you prove your point.

So, yes, there's a huge problem with death by verbiage in the legal literature with which the average economist will have zero patience.

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