THE INTERDISCIPLINARY TURN IN LEGAL EDUCATION, by Anthony D’Amato*
ABSTRACT. The nature of law and legal practice is changing with the addition of interdisciplinary studies to the law curriculum and joint-degreed scholars to the faculty. However, the accessibility of many disciplinarians in the rest of the university raises the question of the cost-effectiveness and opportunity costs of importing them directly into the law school. This Article criticizes the interdisciplinary turn on three grounds. First is the unlikelihood that the joint-degreed persons who join the law faculty will happen to be the ones that their colleagues will end up collaborating with. Second is the even greater unlikelihood that any given discipline can communicate usefully with
another discipline. Third is the opportunity-cost factor: that the new interdisciplinary courses will crowd out an essential part of the legal discipline, namely, an understanding of the foundations and dialectical evolution of its forms of language.
We don’t see things as they are, we see things as we are. --- Anais Nin.
The time is the present. The scene is an idealized faculty meeting at a law school. An entry-level candidate with a law degree who will soon get her Ph.D. in sociology has been invited to talk about her current research, The Signaling Effect on Compliance with the Law.
The speaker starts by identifying her data base as 100 undergraduate students who were assigned conflicting interests in playing a hawk/dove game. She found that when a player suggested a result close to equilibrium the other players tended to coalesce around that result. Her statistically significant conclusion is that an articulated near-equilibrium outcome tends to produce that outcome.
The first set of questions from the audience comes from tenure-track professors who specialize in interdisciplinary and statistical work, several of whom have joint degrees. They praise her meticulous research. Their questions concern methodology, such as the parameters of her control conditions, whether a learning function can skew the statistical significance of iterations of the experiment, or whether the Wald chi-square is an adequate test for the equality of probit coefficients. This set of questions soon expires of its own weight.
Next we hear from the middle tier of tenured faculty. A professor tells a brief story about the introduction of traffic signals in the early 1920s. Although voluntary, they were immediately effective in reducing the traffic jams in intersections that were becoming increasingly congested. Only later, when freerider problems (pardon the pun, he says) became frequent, did cities and towns begin to make the traffic signals legally compulsory. The questioner concludes by asking whether the speaker has discovered anything that lawyers don’t already know.
The presenter replies that this is quite an interesting anecdotal illustration of her findings. But there are no quantitative statistics in the historical record. What she has accomplished with her hawk/dove game is to quantify the effect of signaling close to equilibrium within statistical significance, thus making a solid contribution to our knowledge of focal-point effects.
Another listener asks a follow-up question: is it cost-effective to spend time and energy proving something we already know? The presenter replies that, of course, nearly everything social scientists find is already known. They collect data, record, and test for statistical significance matters that others already “know” intuitively. Indeed, if a social scientist were to come up with a surprising outcome, it would be unlikely, at least at first approximation, to be correct.
A traditionalist sitting toward the back of the room now declaims with measured cadence: “I’ve listened with great interest to your presentation, but I’m having a hard time, if you’ll excuse me, figuring out what all this has to do with law. As far as I know, and correct me if I’m wrong, our students are paying us a high tuition to teach them to become effective advocates and negotiators. May I ask how it will help a student—or if I may put it in the vernacular, what are the student’s opportunity costs—to spend time learning that law has a focal-point effect?”
The speaker suppresses her urge to reply: “Well, you invited me here. You saw my paper in advance. If you don’t think I’m making a contribution to law, then I’m afraid I’ve wasted our time.” But she stifles this riposte.
Instead she responds diplomatically: “You raise a deep question. Perhaps in a bottom-line sense, social scientists are concerned about finding out what is true about the world. This is in contrast to lawyers who are interested in rhetoric in the Aristotelian sense of that word, that is, in persuading others irrespective of truth. I think it’s time to bridge the gap between these contrasting viewpoints. I believe that any law practitioner can be more persuasive if they have truth on their side.”
A old-timer way in the back of the room decides, in light of what now appears to be increasing momentum in favor of the candidate, not to ask the critical question: “Could you have formulated, researched and written your article if you had had no law training at all?”
II. THESIS AND PLAN
The candidate in the preceding scenario believes that law students should learn enough about sociology so they will be equipped to offer to the political branches their scientific prescriptions for changing, improving, and implementing the law. This message is succeeding. Law faculties across the country are running to catch the Interdisciplinary Express. They increasingly prefer to appoint candidates who, in addition to a law degree, have a graduate degree in the social sciences. Sometimes they appoint a person who only has a Ph.D. and not a law degree. As more interdisciplinarians become law professors, they tend to vote as a bloc for new candidates who are like themselves.
The traditionalist’s question in the fictional scenario—what does all this have to do with law?—soon will no longer be asked. For the very definition of “law” will have been expanded to
include whatever the new interdisciplinary faculty is teaching.FN1 My purpose in this Article is to hang a red signal along the railroad track— or at least a yellow one. Expanding the law can result in impoverishing it. Increasing the surface reach of the law while accepting shallowness may result in impeding our graduates’ ability to help real people in the real world who have real
I begin, in Part III, by suggesting that there are two different kinds of crossdisciplinary
collaborations which I call division of labor and emergence. Although the first is by far the most common, it is the second that motivates the law-school hiring of joint-degreed candidates. I will attempt to demonstrate in Parts IV through VI the sheer unreasonableness of expecting interdisciplinary collaboration—the “emergent” kind—to work, and the high likelihood that it will generate unintended consequences. My overall thesis is that no presumptive advantage ought to be accorded to interdisciplinary collaboration as a way of producing cutting-edge scholarship. I argue that we have no rational basis for expecting any discipline to contribute a problem-solving idea, or any useful idea at all, to another discipline. I make these claims even if the two collaborating disciplines are located within the mind of one joint-degreed person.
Taking Parts IV through VI individually, I examine the inherent insularity of disciplines in Part IV. Any given discipline will intentionally create barriers to communication with other disciplines, barriers which are not easily surmountable because they protect its disciplinary identity. Part V then presents the core demonstration of this Article: if discipline A is to communicate usefully with discipline B—that is, if we are to have interdisciplinary collaboration that pays off—then discipline A must be internally coherent and its message must be rationally exportable. I examine the most transparent cases for coherence and rational exportability, concluding that useful interdisciplinary communication fails. The argument for all other fuzzier or harder interdisciplinary pairings follows a fortiori. (Part V may be skipped or postponed
by the reader.)
In Part VI, I try to anticipate and deal with the major objections that are likely to be made to my thesis. These include the claim that hybrid disciplines have originated in interdisciplinary work and the alleged success of economic analysis of law as an interdisciplinary phenomenon. I argue here that law is a genuine discipline in every sense of that word.
Yet if the costs mentioned so far of importing other disciplines into legal education turn out to be de minimis, the remaining question is that of opportunity costs. Part VII argues that interdisciplinary additions to the law curriculum tend to crowd out the most important aspects of the discipline of law: a deep understanding of the foundation and evolutionary dialectics of the words and phrases that constitute the unique tools of effective legal advocacy, and the importance of preserving people’s rights by carrying out the legal dialogue in the unique
disciplinary language that is sensitive to those rights, namely, the language of law fact.
A brief and somewhat personal conclusion is offered in Part VIII.
III. WHY COLLABORATE?
Let us begin by fixing expectations: why would one expert wish to collaborate with an expert from another discipline? There are two possible kinds of cross-disciplinary collaboration which I will call division of labor and emergence. The first type accounts for over 99% of all useful cross-disciplinary collaborations, not only in law but in every field of human study.FN2 But it is the second category, emergence, that excites our imagination and motivates faculty-appointments committees to prioritize joint-degreed candidates.
DIVISION OF LABOR
Many topics of interest and importance in today’s complex world straddle two or more disciplinary areas. Health care, for example, requires having doctors to identify diseases, engineers to design prosthetic devices, pharmacologists to prescribe medicine, nurses to work in rehabilitation venues, and statisticians to track patients’ records. A Health Care Center, such as one established in a university, would bring these experts together to discuss mutual problems and ways of using their own expertise to examine their assigned slice of the health-care pie.
Or consider an Urban Studies Center in a university that brings together sociologists, political scientists, psychologists, specialists in race relations, anthropologists, engineers, law enforcement officials, and cartographers—all invited to collaborate in offering solutions to problems such as ghettoization, degradation of public housing, illegal distribution of drugs, and so forth. No one expects these experts to solve each other’s problems (which would be true
interdisciplinary collaboration), but rather to work separately in solving those pieces of the urban phenomenon that are susceptible to their own expertise. They spend some time talking with one another in order to stake out the boundaries between them.
The renowned physicist Nancy Cartwright observed that when the discipline of statistics is successfully extended to other scientific discourses, it is done in ways that confine the statistics to limited domains within those other discourses.FN3 She found no necessary connectivity between statistics and the discipline that imports it. In other words, they are all division-of-labor
collaborations. Two or three decades ago, statisticians were in great demand for the contributions they could make to numerous scientific disciplines and even the discipline of law. But now, Professor Cartwright’s point can be made just by noticing that statistical programs and software are presently available that can be plugged in to do the “collaborative” job. Person-plus-computer-program is an effective type of division-of-labor collaboration.FN4
There is no doubt that law must continue to latch onto the real world by accepting (with cross-examination!) the factual inputs of other disciplines. Law has been doing this for over a century, but it is now more important than ever. Nothing in the present Article should be construed as opposing the increasing collaboration of law and other disciplines on a division-of-labor basis.
The second kind of collaboration for which the term interdisciplinary collaboration ought to be reserved, is one that is expected to produce new and emergent ideas. Although successes of this type are extremely rare, it is the emergent collaboration that is currently being pursued by law schools that are hiring faculty members who have joint degrees in law and a second discipline such as history, philosophy, literature, or most typically a social science. These joint-degreed experts are expected, in addition to being challenging teachers, to produce innovative scholarship with greater frequency than persons with only a law degree.FN5
Thus a candidate with an “A-” average in law school and an “A-” average in graduate school may be preferred over an “A+” candidate with just a law degree.FN6
What law schools are counting on is an expected synergy and two-way feedback between the two collaborating disciplines. Synergy and two-way feedback are process notions; what they are expected to produce, via some miracle, is an original idea or a solution to an important legal problem. Because the new idea emerges from the collaboration, the currently fashionable term “emergence” is perhaps a good way to describe it. A simple example of emergence is a tray full of water: take heat away from it by placing it in a refrigerator, and it turns to ice. Imagine a person who has spent his life in a tropical climate and has never seen nor heard about ice. If you tell him you can take water and make it so hard that he can walk on it, he might think you were trying to sell him something. Ice is an emergent property of water. Indeed, water is an emergent property of ice.FN7
A famous example of emergence from the mind of a person who was an expert in more than one discipline is Gregor Mendel’s discovery of genetics. Mendel had studied botany and physics at the University of Vienna, then became an Augustinian monk in Brno. For eight years he experimented with white and red pea flowers in the monastery garden, then published his observations in 1865.FN8 Hehad run over 7,000 experiments with the pea plants and “saw” not only that the white and red characteristics of the plants were inherited but that there was a 3:1
ratio between traits that he labeled dominant and recessive. Later scientists inferred from Mendel’s results the presence of chromosomes, and then genes, that served to transmit the traits from parent to offspring. Mendel became, posthumously, the father of the gene.
However, nearly all new ideas emerge from within a discipline. Einstein was a physicist; when he conceived of relativity, he learned just enough mathematics to make his findings mathematically rigorous. Heisenberg was also a physicist who happened to hear of a moribund field of mathematics known as linear algebra. Perceiving its fit with the uncertainty principle of quantum mechanics that he was developing, Heisenberg studied linear algebra and then applied it to his research. Neither Einstein nor Heisenberg invented the mathematical apparatus that they perceived they needed; they were simply lucky that it was available. Helmholtz was not as lucky. His discovery of the doctrine of unconscious inference—that fact that we perceive, in part, what we expect to perceive based upon past learning—required for its complete theoretical specification a nonlinear, nonlocal, and nonstationary mathematics. That mathematical apparatus was not worked out until a hundred years after Helmholtz died in 1894.FN9
Today, unidisciplinary scientists and law professors find that when they need to test quantitative results of observations or experiments for nonrandomness, they can simply access statistics software that can mechanically churn the data for statistical significance. Hand-held calculators can solve derivative and integral calculus problems that used to require advanced work in mathematics. Or if a practicing lawyer needs empirical research to augment his argument, he can simply hire the appropriate econometrician, statistician, public-survey specialist, sociologist, or anthropologist and explain what he is looking for. The lawyers certainly do not handle the social-science work themselves; at their hourly rates it would not be financially reasonable for their clients to absorb the additional cost.FN10
What are the odds of a new idea emerging from a truly interdisciplinary collaboration like the one that coalesced in Mendel’s mind? Suppose a law professor has a few inchoate ideas about solving the puzzle of prospective overruling.FN11 She reads many cases on the subject and lists them. Finding that the law literature on the subject is unsatisfactory and question-begging, she looks outside of law for help in formulating a principle or two that could solve the problem. She is not looking for help in quantifying the case results; that will come later when she figures out how to categorize them. Rather she is looking for explanatory principles that will (a) help her organize the case data; (b) explain existing decisions; and (c) predict, and maybe influence, future cases.FN12 She is in short looking for inspiration. If she decides that inspiration might likely come from collaborating with a political scientist, she could call or email some fifty political scientists at her own university, another two hundred at universities and colleges near her, some five to ten thousand at colleges and universities around the country, and another twenty thousand English-speaking experts in political science around the world. Equal or greater numbers of potential collaborators can be contacted if she thinks that help is most likely to come from a social scientist, or from an anthropologist, biologist, physicist, economist, psychologist, or classicist. With the advent of email, her transaction costs are slight: she sends out a one-paragraph announcement of her topic with a good chance of locating some experts in the field
she has identified who might have the time and interest to work with her on her project.
Let’s say she has chosen to work with a psychologist. To find one psychologist collaborator in a field of fifty thousand is quite a different proposition from finding one collaborator in a field of just one or two. Yet the latter is what she faces if she asks her law-faculty colleagues, two of whom might hold joint degrees in law and psychology, to collaborate with her. Her joint-degreed colleagues may have no interest in the subject of prospective overruling, might have several projects of their own that are taking up all of their time, or might
simply be uninterested in “doctrinal” questions. If she wants a collaborator, she will probably have to advertise for one.
Now suppose after corresponding with a few psychologists by email, our author decides that she might be better off collaborating with an anthropologist. Although thousands of them can be contacted by phone or email, it so happens that her law faculty has not yet appointed a person with a joint degree in law and anthropology. Hence her chance of finding a collaborator in the outside world is cosmically higher than her chance of finding one among her law colleagues.
The probability calculations do not change if our author herself has a joint degree. Suppose her Ph.D. is in political science. She knows after some reflection that the political-science answer to prospective overruling is that it’s just a question of the power of the court of appeals over the trial courts. If the court of appeals has enough power, it can intimidate lower-court judges to follow its wishes on prospective overruling; otherwise, the lower-court judges may decide to disobey the appellate court on matters of this type. Our author decides that her training in political science does not seem to yield the kind of insight that would get her intended article into a good law journal, especially since measuring the effective power of the court of appeals seems to depend upon whether lower-court judges choose to obey or disobey it. (She has mentally encountered this vicious circle of power and law many times before.) So she decides to look for an external collaborator.
Despite the huge odds against an interdisciplinary collaboration within a law faculty that would lead to an emergent idea, law schools have bought into the idea of interdisciplinary collaboration. Their reasoning seems to be akin to that of a compulsive buyer of lottery tickets.
Many faculties are willing to take that kind of chance, especially when they see other faculties doing it and assume the others must know what they’re doing. Accordingly, what I shall try to show in Parts IV and V of this Article is that unlike a lottery ticket where there is at least a winner, interdisciplinary collaboration is unlikely to have any winner at all. I will challenge the basic assumption that two collaborating disciplines may give rise to an original idea. To show this, I will begin in Part IV with a description of the inherent insularity of disciplines. Then, in Part V, I offer a more rigorous proof of the translation problem, that is, the extreme unlikelihood of any one discipline’s being able to communicate meaningfully with another discipline.
IV. THE INSULARITY OF DISCIPLINES
To investigate the possibility of useful interdisciplinary collaboration, we first need to ask what disciplines are for. Outsiders might give the standard answer: disciplines aim to add to the world’s stock of knowledge. An insider, however, is more apt to think that the way he sees the world constitutes knowledge of the world. Although the insider may be called upon from time to time to contribute his expertise to the world’s problems and issues, his primary focus is to contain that expertise among insiders. This can be seen by the way that disciplines recruit new members. An acolyte is expected to learn the discipline’s wisdom through hard study, dedication, and passing rigorous examinations. (Any Asian martial-arts movie will illustrate this labor-intensive process of indoctrination.) Over the years, the discipline itself becomes more intricate and arcane due to the cumulative contributions of its members. As acolytes are slowly introduced to the core secrets of the discipline, they naturally find it more stimulating to converse with each other than to talk with outsiders. They can converse at the cutting-edge with speed and efficiency. They share the excitement of getting closer to bedrock truth about the world. But when they talk with outsiders, they have to “bring them up to speed,” a process which could take months if it works at all. Thus the insiders tend to remain on their isolated island, talking mainly to each other, commenting on drafts, or writing reviews of each other’s books. The circle is completed when the insiders look to the discipline itself for answers to their contested points.FN13 We hardly ever hear of an internal disciplinary argument that ends on a note like “our discipline seems to have run out of answers; let’s turn to psychology or anthropology and see if they can help us.” Would a lawyer ever say, “The fine print in this insurance contract baffles me. Perhaps I should ask a sociologist for some help”? Or “the contract has an ‘act of God’ escape clause; should I call up a theologian?” Instead, any given discipline will inevitably provide an answer to any question because it must maintain its privileged view of the world—even if the answer is that the question itself is trivial or not worth asking.
As outsiders watching these communications circling around Doctrinal Island, we may interpret the process as securing conformity to the discipline’s proprietary truths—a kind of recurring and self-reinforcing membership ritual.
We get a deeper view of the pressures toward disciplinary conformity when we look at the process by which a person becomes an expert in a discipline. The acolyte or graduate student is discouraged from choosing a thesis or dissertation topic that challenges bedrock disciplinary material. Instead she is encouraged to find an unexplored niche within her chosen discipline so that she does not trespass upon territory staked out by the elders who preceded her. Although a Ph.D. dissertation may be trumpeted to the external world as a contribution to knowledge, its real purpose is to ensure that the author has located her work within a doctrinal cubbyhole while displaying the requisite humility.FN14 Her footnotes must genuflect to the discipline’s prominent members. Although her dissertation in her own mind might raise more questions than it answers, she finds that her Ph.D. committee is not overly troubled by this fact. Indeed, the committee seems quite comfortable with unanswered questions. The acolyte may realize at this point that the members of her committee were once graduate students who also worried about unanswered questions but somehow passed their Ph.D. exams. Perhaps a more heretical thought enters her mind: that the innermost core of her discipline contains nothing but unanswered or unanswerable questions. Maybe this is its deepest and most dangerous secret, known only to its disciples.
The foregoing descriptions may remind some readers of religions. An important difference is that most of the world’s religions (Judaism may be an exception) seek to recruit new members even at the cost of watering down their core truths in order to make them more attractive to lurkers. Their preachers want to spread the word of the Deity even if that word needs alteration. By contrast, secular disciplines want to monopolize, not share, their core truths. They are afraid that if their core truths are exposed, they may be derided as nonsense. Religions do not have the latter fear. Since they are faith-based rather than evidence-based, the more preposterous their claims the more likely they may cause the kind of bewilderment and self-doubt that operate to lure the lurker deeper into the religious fold in search of answers that will never be found.FN15
Unlike religions, academic disciplines play as close to the vest as possible, short of running out of initiates altogether. They guard their secret literature, methodology, language forms, and logic, by wrapping them in protective jargon. This protected archive after all constitutes their intellectual capital, and no one within the discipline has an incentive to squander it. Disciples learn not to give away their hard-earned secrets for free. They have derived from the discipline a privileged way of understanding the world. This privilege would self-dissipate if outsiders could access it freely or with little cost.
A closer affinity with academic disciplines than religion is the sect, cult, caste, or tribe.FN16 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. Although recruitment of outsiders is usually welcome, many disciplines throughout history have opted to self-destruct rather than advertise for new members. Since any recruitment at all involves at least the sharing of some of the discipline’s peripheral secrets, there is an ever-present worry that enlightening outsiders may increase the discipline’s vulnerability to attack. This recruitment dilemma may be one source of bias against candid interdisciplinary communication.
Disciplines and cults revel in their ethnocentrism. For example, sociologists define their doctrinal perspective against a background that includes sociology’s differences from psychology, history, anthropology, economics, and other disciplines.FN17 Informal conversations among sociologists reveal how much they like to “put down” neighboring disciplines like anthropology (“anthropology isn’t even a science”), and students often overhear the same kind of talk among anthropologists (“sociology is how you squander millions of taxpayer dollars proving that schoolchildren learn more in small classes than large classes”). When Princeton built the Institute for the Advanced Study in 1930, the anti-collaborationist founders decided to protect physicists such as Einstein, Gödel, Oppenheimer, and Von Neumann from related-science disciplinarians by choosing the History Department as the Institute’s next-door neighbor.
The hallmark of separateness is found in a discipline’s jargon.FN18 Separateness becomes a self-fulfilling prophecy to the extent that outsiders are perceived as not intelligent enough to understand or penetrate the discipline’s special forms of language. Jargon develops naturally inside all disciplines, sects and cults included, just as geographically isolated communities develop their own patois or sports teams their own slanguage. The discipline itself welcomes jargon as an ingroup solidarity device. Donald Campbell observed that “what is despised as jargon by the outgroup may be the shibboleth of adequate professional training by the ingroup.”FN19 Insiders, after all, do not regard their talk as jargonized but rather as an efficient shorthand way of communicating a dense amount of contextually-rich information. If outsiders hear it but don’t get it, then perhaps they are not as smart as insiders. (Of course, outsiders are not supposed to get it. If they’re determined to get it, they will have to submit to the training process and become insiders.)
But jargon, in the sense of unusual or esoteric words, does not quite capture the idea of internal meaning. The term “register” may be more appropriate. As suggested by Tony Becher in his aptly titled Academic Tribes and Territories: [I]n those disciplines which pride themselves on not being “jargon-ridden,” [their] communication none the less creates what linguists would call its own register – a particular set of favored terms, sentence structures, and logical syntax – which is not easy for an outsider to imitate.FN20
As the acolyte becomes more attuned to this new register, she finds that the discipline’s gravitational force becomes stronger. This force begins to take on a compulsion akin to that of logic. An acolyte’s felt view of the internal coherence of the sect or discipline she is entering seems to logically compel her attention. A logic is something she cannot rationally refute. The logic of her discipline is nothing less than its secret key to understanding everything of importance in the universe. It enables her to believe that the sect or discipline that she has chosen exists in celestial harmony with the world. She learns to understand that the secret logic of the universe is equivalent to the secret logic of her sect or discipline. The world may be mysterious to others, but it is coherent to her because she owns a privileged tunnel into its inner wheels, levers, pulleys and gears.
In mastering a discipline, the acolyte absorbs its values and makes them her own. This is not as transformative as it sounds, because her initial decision to choose a discipline was based in part on her pre-existing comfort level with its perceived values. However, her entering values soon become shaped, reorganized and reinforced with each expenditure of psychic energy devoted to absorbing the discipline’s core mysteries. She becomes increasingly self-conditioned to believe in the truth of her discipline and its ability to show her a way to solving the problems, issues, and puzzles that engage her mind. These puzzles are exciting, and to boot the university pays her for thinking about them. For example, if she chooses cultural anthropology, she might not have been initially interested in the problems of the natives of Papua, New Guinea. But after listening to some professors whom she finds deeply persuasive, she will go to Papua because she has become convinced that the problems of cultural anthropology are brought to the surface by the deep study of specific situations. Although her research has not answered many questions about Papuan societyFN21 it has given her a far more important perspective upon the questions of cultural anthropology—with native help.
Over time, the more intellectual and psychic capital the acolyte spends in learning the doctrine, the more disposed she becomes to believing in its truth. She may not even notice that the discipline’s unanswered questions are gradually morphing into unanswerable questions.
As the acolyte advances toward ordination within the discipline, she learns above everything else to protect its linguistic forms. For it probably dawns on her sooner or later, as it probably dawns upon most experts sooner or later, that the most important thing the discipline has given them is its language and formulas. Judge Posner told me during a break in the radio debate we were having that the sole purpose of the first year in law school is to teach students a new vocabulary. (He added that the remaining two years of law school were unnecessary.) Sometimes the proper pronunciation of the jargon is the key to authoritativeness. When professors of medicine lecture in the classrooms or even talk in informal settings, their expertise seems connected to how rapidly and effortlessly they can toss off terms like myocardial infarction, portal encephalopathy, choledocholithiasis, and mediastinotomy. In the extreme, consider the discipline of postmodernist literary criticism in which the jargon actually replaces the literary text.FN22
Given the impetus of any given discipline toward gussying up its talk, do we have any rational basis for assuming that if we put two disciplinarians in the same room they can usefully engage in collaboration? How, if at all, can two different disciplines communicate synergistically with each other to produce an emergent idea?
This question was uppermost in Rudolf Carnap’s mind in the 1930s during his participation in the debates in the “Vienna Circle.” Some of the world’s greatest intellects participated from time to time: Wittgenstein, Gödel, Russell, Tarski, Ayer, Popper, Turing, and Carnap himself. The on-going topic of debate was idealism vs. materialism. As Carnap ruefully observed in his Intellectual Autobiography,FN23 neither side seemed able to communicate meaningfully with the other. This shortcoming was certainly not due to a failure of intelligence. Rather, Carnap attributed the communication impasse to the specialized jargon that each side used. Each discourse had its own logical structure, its own syntactical rules, and its own sense of coherence that seemed to be non-exportable to the other discourse. Carnap suggested that it might be more profitable for the observer/analyst to turn his attention away from the merits of the idealism-materialism debate and focus instead upon its linguistic forms.
As an example of what Carnap may have had in mind, suppose Marxian reasoning is sufficient to convince Marxists of the truth and explanatory power of “dialectical materialism.” This reasoning may attract outsiders to Marxism, but that is not the same as saying that the non-Aristotelian reasoning allegedly subsumed within the term “dialectical” exerts a logical force upon outsiders. We external observers believe ourselves to be rationally free from the seduction of Marxist “logic.” We are able to reject the concept or method of dialectical materialism if it does not seem on its own merits to help explain any part of our own view of the world. The insider may use the term as a mantra, but it is a useless or misleading mantra to us on the outside.FN24
Carnap discovered that the most that was accomplished in the Vienna Circle seminar was that neither the materialists nor the idealists were able to disprove the other side’s internal logic. Absent such a proof, external observers such as Carnap find themselves in an agnostic position: they do not know whether the discourse they are looking at is consistent or inconsistent.FN25 If it is inconsistent, then of course they are wasting their time seeking enlightenment from it. But if it is internally consistent, then maybe they should devote more time in trying to understand what its expert is trying to tell them.FN26
Agnosticism is indeed the only intellectually supportable starting point to take regarding another discipline. If you then come to believe that the other discipline is built upon contradictory assumptions, you would be wasting time in considering it. If you come to believe it to be true, you will already be partially or wholly inside that discipline. If you don’t know, then it is reasonable to remain agnostic.
If I am agnostic in respect of Marxism, I can still be willing to accept that practitioners of Marxist discourse seem to be able sincerely to communicate with each other without inconsistency. I fully expect that the truth-claims of Marxists seem to be validated for them by their belief in the internal coherence of their discourse. Yet my liberal agnosticism has not taken me very far. Just because Marxists believe their discourse to be consistent doesn’t make it so. If I knew for sure that Marxism was internally consistent, then I would have to take Marxist principles quite seriously. But if I am only agnostic, then I would have to translate Marxist logic into terms I can understand before I can determine whether it is helpful to my own research projects. I cannot accept Marxist logic on its own say-so because of the possibility that its logic is inconsistent.
The expert has the mirror-image problem in convincing an outsider about the truth of his discipline. Suppose an expert in theodicy believes that the following two tenets of his discipline are logically consistent: a God who is perfectly good created the world, and the world contains a great amount of gratuitous suffering. To an outside observer, agnostic or not, these two propositions would probably appear to be mutually inconsistent—not just linguistically but substantively. If the theodicist cannot prove to the outsider that the two propositions are not mutually inconsistent, then it would be irrational for the outsider to spend any more time conversing with the theodicist on theological matters.
What can we conclude about a person who has become an expert in two disciplines, such as law and political science, or law and sociology, or law and economics? Is she able to communicate between the two disciplines in her own mind so that there will be mutual feedback resulting in emergent ideas that would not have been imagined had she only been an expert in one of those disciplines? It is not inconceivable that our minds could translate between two disciplines, but we shall see in the next Part that the translation barrier exists irrespective of whether the disciplines are in one person’s head.FN27
Carnap’s question, to which he devoted the remainder of his life yet failed to solve, was whether it was rationally possible to communicate between disciplines so as to generate new ideas or new solutions of puzzles that would have remained inconceived or insoluble by the disciplines working separately. My project in the next Part is to take up his unfinished work. I offer a formal proof that interdisciplinary communication that generates new ideas is extremely unlikely because of the incommensurability of the world-views and linguistic forms of the collaborating disciplines. Some readers may wish to skip or skim Part V. Some may have been sufficiently persuaded by the infinitesimal probabilities discussed in this Part IV to view the forthcoming Part V as overkill. However, if we are indeed at a crossroads in the teaching of law, the incommensurability thesis that takes up Part V could be significant even if excessive.
V. INTERDISCIPLINARY COLLABORATION IS NOT COST-EFFECTIVE
In this Part, I set out a formal proof of the non-translatability of interdisciplinary communication. I will focus the clearest possible cases for translatability and claim that all other fuzzier pairings follow a fortiori.FN28 I envisage my proof as shifting the burden of persuasion to those advocates of interdisciplinary communication (or those persons with expertise in two disciplines) to justify the time and effort they have expended on interdisciplinary collaboration. The conclusion I reach in this section leads me to assert with some confidence that in the long run and over many cases, it is clearly cost-ineffective to expect that interdisciplinary work will lead to original or useful ideas or to the solution of important puzzles and problems.FN29
Let us begin by defining some terms and incorporating them into a summary of what has been said so far. We will call the “home discourse” the one that is trying to communicate ideationally to another discipline; the latter will be called the “target discourse.” In the above example, Marxism was the home discourse and I, the external observer, was the target discourse. If a home discourse can communicate meaningfully with a target discourse, then let us say that the home discourse has “rational exportability.” Using these terms we can summarize five tentative results reached in this Article so far:
(1) If an expert’s home discourse is objectively consistent, it does not necessarily mean that what she says can be usefully translated (is “rationally exportable”) to a target discourse.
(2) It is not necessarily cost-ineffective to listen to a specialist if we do not know or cannot find out whether her home discourse is consistent. Such a stance is called agnostic.
(3) If her home discourse is objectively inconsistent, it is not cost-effective for us to continue the conversation or collaboration.
(4) The logical consistency of the home discourse is a necessary but not sufficient condition for meaningful interdisciplinary communication.
(5) The rational exportability of the home discourse is a necessary but not sufficient condition for meaningful interdisciplinary communication.
A. TWO CRITERIA FOR TRANSLATABILITY
A discourse that could collaborate meaningfully and productively with another
discourse would have to be both internally coherent and rationally exportable. Does any
such discourse or discipline exist in the world? Let us begin by bracketing the
possibilities. Suppose there are two non-trivial, mutually exclusive home discourses, A
and B. Assume that A is rationally exportable and B is internally coherent. Our simple
matrix would then look as follows:
Since A and B are mutually exclusive, it follows that if we can replace either question mark with a “yes” in either of the A or B rows, then we will have demonstrated the combined internal coherence and rational exportability of at least one discourse. Either finding would falsify my thesis.
B. TESTING FOR INTERNAL COHERENCE
Carnap did not know whether there was any discourse that, in the terms I’m using here, was both internally coherent and rationally exportable. To explore for such a discourse, he decided to focus his attention on one that was already generally accepted as meeting one of these criteria. If he proved that it indeed met that criterion, he could set himself the goal of determining whether it also satisfied the other criterion.
In looking for a candidate discourse, Carnap must have thought it would take longer to start with one that was internally consistent rather than starting with one that had rational exportability. After all, he had already failed to find rational exportability in either the materialistic discourse or in the idealistic discourse advanced with such fervor in the Vienna Circle, even if he assumed (agnostically) that they were both internally coherent. So he appears to have decided (as I infer from his later life’s work) to proceed in the reverse direction and identify a discourse that was rationally exportable. That would appear to solve the hardest criterion. If he could start with a discourse having rational exportability, he could go on to investigate whether the discourse was internally consistent.
A discourse that is rationally exportable would be labeled an “A” discourse in the above matrix. Carnap did not waste much time in choosing probability theory as his rationally exportable discourse. Probability theory originated in the seventeenth century and has since conquered the world of science and games in applications to discourses as far apart as quantum theory, military strategy, and meteorology. There is little doubt that it has succeeded in being rationally exportable to many fields of human endeavor. There was no need for Carnap to spend time in formally proving the rational exportability of probability theory.
Once we have assigned probability theory to the “A” discourse in the above matrix, the remaining step is to prove that it is internally coherent. Probability theory has been used so often and so successfully that proving its internal coherence would also seem to be easy. Carnap sat down and began working on a proof. Alas, the task took him the rest of his life. He did not reach a conclusion. His only posthumous consolation is that no one after him has proved it either.
The puzzle about the internal coherence of probability can be briefly summarized. There are two kinds of probability: long-run (or frequentist) probability and one-time (sometimes called “subjective”) probability. The odds of getting more than 50 tails in 100 tosses of a fair coin is an example of the former; weather forecasting is an example of the latter. Since the factors leading to a prediction of tomorrow’s weather are indefinitely (and perhaps continuously) variable, they cannot be extrapolated from or constructed upon past events. Nevertheless it is perfectly appropriate to inquire about the probability of the occurrence of a unique event. (It happens all the time in criminal trials based upon circumstantial evidence.) What does the meteorologist on Channel Seven mean when she says that the chance of rain tomorrow is 70%? Since she is not talking about long-term probability, but only about a discrete event that will or will not happen tomorrow, she must be talking about her own degree of confidence in her prediction. If she says “rain is 70% likely,” she is in effect saying that she would bet $7 on rain happening tomorrow against any other person’s $3 bet that tomorrow it will not rain, winner take all. One-time probability is accordingly a measure of the observer’s degree of confidence in the expected outcome.FN30
However, we can anticipate that the observer’s degree of confidence might vary across observers (as it obviously does in betting on sports events). Thus one-time probability appears to have an element of subjectivity in it, whereas frequentist probability appears to be objective. Carnap’s puzzle was to figure out how to objectify one-time probability and then to align it logically with frequentist probability (he was not interested in the converse, which would be to subjectify long-term probability and align it with one-time probabilityFN31). Perhaps one-time probability would turn out to be a subset of frequentist probability. Or they might both turn out to be subsets of a new general theory of probability.
Thus, the puzzle whether probability theory as a whole is consistent turns on the logical reconciliation of its two (equal) branches of frequentist and subjective probability. Although volumes have been devoted to this puzzle since Carnap’s pioneering work, there is still no generally accepted result.FN32 It is a remarkable, if not annoying, aspect of probability theory that subjective probability is not amenable to Karl Popper’s test of falsification.FN33 Popper himself conceded that the hypothesis of the numerical probability of a single event is “impervious to strict falsification.”FN34 In other words, when the meteorologist on television forecasts a 70% chance of rain tomorrow, then tomorrow’s appearance of sunny weather would not falsify her prediction.FN35
Probability theory displays precisely the kind of intersubjectivity for frequentists and subjectivists that Carnap found was typical of specialized discourses. Probability theory may therefore be a possibly incoherent (yet mutually inextricable) combination of two discourses rather than a single coherent discourse. Carnap’s valiant attempt to fill the “A” box in the above matrix ended in failure in a clear case where one’s first impression would have predicted the contrary.
C. TESTING FOR RATIONAL EXPORTABILITY
Inasmuch as the “A” strategy did not pan out for Carnap, the question arises whether a “B” discourse could be found that would prove his hypothesis. One possibility for “B” is economic discourse as conceptualized by Judge Posner: Economic theory is a system of deductive logic. When correctly applied, it yields results that are consistent with one another. Insofar as the law has an implicit economic structure, it must be rational; it must treat like cases alike.FN36 This is a strong claim for the extension of economic logic to law. But how do we get from a deductive system to deciding real-world cases? Posner’s answer is that economics requires judges to decide cases in such as way as to maximize social welfare.FN37 In this fashion Posner is adopting a claim that is frequently made or implied by experts in many discourses: that the internal methods within their discourse take on normative power when extended outside the discourse. Posner apparently wants a court to aggregate the utilities of everyone in society and then calculate whether a decision for plaintiff or defendant would play out in such a way as to maximize social benefits.FN38 However, there is another central tenet of economics which Posner accepts in other places in his writings to the effect that the interpersonal comparison of utilities is impossible. But then, if it is impossible for a judge to aggregate and compare the utilities of the two litigants standing before him, how is he supposed to aggregate and compare the utilities of hundreds of millions of persons outside the courtroom?FN39 An irrational “leap of faith” would seem to be required. Although Posner attempts to soften his argument by prefacing his third sentence by “Insofar as,” that qualification is a harmless tautology because law can be rational even if its structure is not economic.
Is there a discourse whose internal logic appears consistent to all observers? (Lewis Carroll’s Jabberwocky might be consistent, for all anyone knows, but it certainly does not appear to be consistent.) The test of appearing consistent is itself rather formidable. Yet for our purposes, a discourse that satisfied that test would seem clear and transparent. With such an apparently consistent discourse, we could then go on to test whether it is rationally exportable.
Fortunately there is such an apparently consistent discourse that is also clear and transparent: quantum logic. As developed by John von Neumann in 1932, with the subsequent assistance of George Birkhoff, quantum logic (“QL”) seems to describe in logical symbols the weird but consistent observations of experimental results in quantum mechanics.FN40 Accordingly, we begin with a simplified version of von Neumann’s QL. Take a very small space ‘s’ that contains a quantum entity such as an electron or photon.FN41 Under Heisenberg’s uncertainty principle, the quantum entity in the space either has position ‘p’ or momentum (speed) ‘m’ (we cannot know which). In symbols: