I have been doing some thinking lately. How secure would you say that the subfield of "judicial politics" or "public law" is in political science? Let's define these terms: I am specifically talking about the application of quantitative empirical study to the phenomenon of judicial behavior and legal institutions. What does the future of this endeavor look like for political science? For the reasons indicated below, it may not be all that bright.
First, let’s consider some relevant history before returning to the question. When political science began to study bureaucracy, a major portion of that inquiry turned itself into its own concern: "public administration." When political science began to analyze policy, a major portion of that inquiry turned itself into its own concern: "policy analysis."[1] When political science began studying trial courts and the criminal justice system, a major portion of that inquiry was taken over by criminal justice programs located within sociology departments or organized independently.
What is most disturbing about this trend is that, unlike philosophy, political science cannot claim as one of its virtues the creation of other fields of inquiry. That is, it is not the job of political science to create other departments. Philosophy's mission, on the other hand, is different. All science begins as philosophy, and, hence, the production of science is philosophy's expected byproduct.[2] But what happened to political science in the fields I mentioned is simply that the work produced by the discipline was unable to meet the needs of the subject. In short, these things were taken from political science; they were not birthed by it. Stated another way, because the policy analysis performed in political science departments was not fulfilling the needs of such an inquiry, the work was substantially overtaken and transformed by other scholarly organizations. The same is true with criminal justice.
Now let us return to the question. What will be the status of judicial politics and public law scholarship in political science in about 10 or 15 years? I ask this question for one simple reason: law schools are getting into the game. Legal scholarship is currently in the process of transforming itself into an empirical endeavor. Many law schools are hiring Ph.Ds and are talking about whether statistics should be a requirement for incoming students. I saw one debate recently about whether law schools should start offering their own Ph.D programs. Even popular disciplinary figures like Lee Epstein are now teaching in law school.
What is the long term implication of this? One view says "the more the merrier." But although I do think that "more is merry" from the standpoint of the production of knowledge, I also think it means that the future of "judicial politics" and "public law" is now destined to be secondary (if not tertiary) to that of future legal scholarship. Why? Some of the answer is familiar, some perhaps not: higher salaries, more resources and a greater appreciation for the phenomena being studied. One of the objections that people make to political science scholarship is that its authors are too far removed from the phenomena they study. Indeed, this claim is sometimes made in reverse when political scientists talk about legal “scholarship:” it is too invested in legal culture and the worth of its orthodoxy to produce scientific scholarship. To see this problem, just listen to the two talk about judging. One of my central complaints with the Supreme Court decision making literature in political science is that too many of the authors: (a) don’t know enough legal doctrine; (b) don’t read the cases they model; (c) don’t have a firm understanding of legal epistemology when creating a priori theories about judging; and (d) wish (at times) to tear down legal culture as much as law schools are said to want to promote it.
Now I offer my caveats: I don’t mean all political scientists. I’m generalizing. (It’s a blog entry!). But my point is very simple: in the future, law schools may be in a better position to produce empirical models of legal phenomena because they are closer to the workings of the phenomena they study. And if I am right about this, in 10 years or so, the top readings that graduate students are assigned in political science departments may be from dual-degreed law school faculty -- or even worse, the students may be attending an empirical Ph.D program sponsored in law school itself.
[1] Indeed, there was a great battle fought over whether policy analysis should be its own field, separate from political science. See Public Policy Analysis: An Introduction, William N. Dunn
[2] Witness the relatively recent birth of cognitive linguistics, which grew out of the concerns that occupied philosophy of language.