Wednesday, December 13, 2006

Down with Interdisciplinarity? Or Up with Legal History?

An article being discussed in the blogosphere (e.g. Leiter Reports) is Anthony D'Amato, The Interdisciplinary Turn in Legal Education. At a time when an increasing number of law school hires have Ph.D.s, D'Amato argues against interdisciplinarity.

One of D'Amato's claims is that disciplines are like sects.
"Disciplines and sects share the trait that their primary audiences are themselves. They proselytize their own initiates at great lengths before even thinking of proselytizing outsiders. Internal reiteration and refinement of the discipline’s core ideas always take priority." (18)

Hmmm. It seems to me that in history, if anything the current criticism is that historians are spending too much time speaking to outsiders. The question instead has been whether the pressures to write for a broader public undermine the careful practice of history.

But perhaps D'Amato is not talking about historians. As Dan Markel notes, D'Amato's own examples of what law teaching requires repeatedly invoke questions of legal history.
Here's D'Amato: "How many law teachers understand the origins of the jury system and the evolving bifurcation of facts and law (which remains an issue today in the phrase “a mixed question of fact and law”)? How many know that the early jurors asked questions of the parties and their attorneys, and were accustomed to going around the neighborhood interviewing citizens and poking into evidence? How many are aware of the self-protective reaction of the judges in turning to formalism?"

While he warns against "history for history’s sake," the bottom line is that his attack on the disciplines that inform legal scholarship turns out, instead, to be an embrace of just one: legal history.

1 comment:

Anthony D'Amato said...

The problem I have with historians is something I alluded to in the piece, the lack of historiographical method. I agree with Naill Ferguson that we need more counterfactual analysis and much more discussion of "the road not taken" (I don't think I'm quoting him here). History has become deadened by the disciplinary stress on linearity, which gives the impression of causation. But it is false; the causal connectives are usually missing from standard accounts.
It's not "history" that I think is missing from law, although others have read my piece the way you read it, and the fault is undoubtedly with my poor expression. What I would like to see is a chronological development of cases through history: how was one rule countered by its opposite, etc., until we got to the Rule in Shelley's Case, for example. Ideally I'd like students to do history instead of reading about it. How would one have gotten around the rule of perpetuities in an old case, for example, and how did the court react, and what was done with the result as a precedent, etc. I'd like to see estates in land evolve: fee simple doesn't work in case 1, so we split it into a life estate and a remainder in case 2, but then someone comes along and wants X, and then Y, until we get to highly complex forms.