Ryan Whalen

Encouraging Boundary Spanning Legal Scholarship

Law schools are in many ways the most unique in the modern American university. Having evolved relatively independently of other academic disciplines, they have developed a variety of idiosyncratic research and teaching norms, not least of which is the legal scholarship publishing model.[1] Although every academic discipline has quirks in the way its scholarship is created and disseminated, none is more unique than American legal academia’s law reviews. The idiosyncrasies of law reviews and legal academia contribute to two challenges facing the production of boundary spanning legal scholarship: article venues and article appreciation.

There are many strengths to the law review system, but disseminating research that spans the boundaries between traditional legal scholarship and the STEM fields is not one of them. This boundary spanning work tends to be empirical in nature, using research methods that are unfamiliar to most law review editors. Furthermore, it is not easily shoehorned into the doctrinal article model, featuring a long introduction, state of the doctrine, recent developments, and prescriptions. This can make it more difficult for legal scholars to find appropriate homes for their interdisciplinary research.

Although in recent years there has been an increase in publication venues for boundary spanning research, there is still substantial uncertainty about how law school faculties perceive this non-traditional work. Boundary spanning research is often more similar to that produced in social science or STEM fields, and thus can appear foreign to many legal scholars, law school administrators, and law review editors. While doctrinal research is the research that law schools do best, and what they should continue to focus on, work that spans disciplinary boundaries has the potential to inject fresh perspective on legal issues, and integrate law schools more cohesively with other disciplines.

In recent decades, every school within the modern university—law school included—has seen an increase in interdisciplinary research.[2] This transition has been easier for non-law disciplines, because their publication models tend to be relatively similar to one another, and thus the research products more easily understood and appreciated. If law schools wish to capitalize on the promise of boundary spanning research, they need to encourage its production by fostering publication venues and clearly crediting it as relevant. This in turn will enrich research, furthering our understanding of the law and legal systems.

Introducing Law Students to Programming and Statistics

The question about how to prepare law students to deal with changing legal technologies has parallels throughout professional education. In the post-industrial world, the work that we do is increasingly distant from the machinery and technology enabling it. One could take the position that service providers need not understand the technologies they rely upon, and that it would be more efficient to maintain the clear division of labor and expertise between the service providers and the engineers. Yet, there is something to be said for understanding—at least at some basic level—the technologies that enable our work.

The majority of law students need not, and will not, become experts in legal technologies. However, they would benefit greatly from introductory training in the technologies and tools that support legal work. At a minimum, students should have the opportunity for some exposure to a programming language and statistics to help them both understand the technologies they work with, and the systems that increasingly underpin the world around us.

Exposing future lawyers to the fundamentals of computation would not only help them understand legal technologies, it would also improve their ability to engage with technology support staff in their firms, consultants hired to perform technology-oriented services, or clients with technology-related legal issues. As an additional benefit, computer programming provides logical reasoning practice that maps well to contract and statutory interpretation.

Training in statistics would help law students understand more of the mechanics about how many legal technologies work, while also contributing to a more well-rounded legal training. Statistical reasoning is increasingly important throughout society, and comes up in a variety of core legal areas including remedies, torts, evidence, labor law, tax law, etc.[3]

An introduction to programming and statistics can be offered in a single elective class—perhaps with a focus on legal data science or informatics, fields that feature both programming and statistics and that would be of substantive interest to many practitioners. Ultimately, this sort of course offering will produce more well-rounded lawyers who are prepared to cope with the ever-changing state of technology that their career promises.

Ryan Whalen is an Assistant Professor at the University of Hong Kong’s Faculty of Law. His research spans the boundaries between information science and law, with active projects on patent law, innovation policy, and computational legal studies.

 

  1. As professional schools, law schools differ from many of their peers in that their faculties have historically been populated by those with professional degrees rather than research-oriented doctorates. Although this has changed somewhat in recent years, this has contributed to the uniqueness of law schools in the academy.
  2. See Alan L. Porter & Ismael Rafols, Is Science Becoming More Interdisciplinary? Measuring and Mapping Six Research Fields over Time, 81 Scientometrics 719 (2009). The increasing number of law professors with doctoral degrees in non-law disciplines has contributed to more-and-more “law and” interdisciplinary research. See Lynn M. LoPucki, Dawn of the Discipline-Based Law Faculty, 65 J. Legal Educ. 506 (2015–2016); Justin McCrary et al., The Ph.D. Rises in American Law Schools, 1960–2011: What Does It Mean for Legal Education, 65 J. Legal Educ. 543 (2015–2016).
  3. For instance, a grounding in probability and statistics can be very helpful in understanding the PL > B calculus of negligence created by Judge Learned Hand. See United States v. Carroll Towing Co., 159 F.2d 169 (2d. Cir. 1947).