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February 13, 2013

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Fish McBites

I still don't know what the thesis of these posts is.

Some scholarship has some utility? Conceded. So what?

Critics of scholarship are misogynists or racists? Denied; that claim tell us more about the author of the post than about the critics.

Given that some scholarship has some utility, law schools should produce tomorrow the same amount of scholarship they produce today. Denied; that's a non sequitur.

Given that some scholarship has some utility, it logically follows that tax payers and law students should amass tomorrow the same amount of debt they amass today to support scholarship? Denied.

"It is very difficult to measure the “utility” (or cost) of scholarship where (a) the time horizons for its effects to be fully felt can potentially stretch out so far, and (b) where citations are not a reliable metric for assessing the impact of a piece of scholarly work." Conceded, but banal and nearly empty; not worthy of public discussion.

Jeffrey Harrison

Consevatively, 8000 published articles a year, not including books, books of readings, unpublished papers, (not that anything in law goes unpublished.) Many are written solely to make a case for tenure or promotion. Huge numbers are written for a small percentage of professors and have no audience other than that and were never intended to. Obviously, there is some influence but that is hardly a bold statement. A more appropriate analysis would be to ask how it became institutionally acceptable to write things that, even at the outset the authors know there is virtually no probability that anyone cares, are largely based on anecdote (ironically like the original post in this series), and are actually indicative of research to find support for one's personal ax to grind. My hunch is that 95% of legal scholarship is a waste, when it is not waste it is unlikely to be in a leading journal, and that any sensible group of people could predict which ones are likely to make a differece before the effort and cost of research and publication are incurred.

Jake Walton

If you're explaining, you're losing.

Brian Tamanaha

A major problem with these discussions is that the term "critics" encompasses a broad range of positions. I don't think there is much point in arguing against the "scholarship has no value" position, first, because I don't think many "critics" hold this view, and second, because the group that holds this view will not be convinced no matter what you say. (Given the vast amount of time and effort I have put into legal theory work with no obvious payoff, I assume it is not necessary for me to declare that I personally place a very high value on scholarship.)

I agree with nearly all of what you write in your post (as well as your previous one), yet I'm a "critic." The difference between us lies in this observation:

"I have no idea how much subsidy we ought to give scholarship to produce good work or whether the current amount is enough or too much. But I think is far from proven that the cost of producing these articles is "immense" as Ralph Brill suggests. I don't think reduced teaching loads are that common outside of the top twenty law schools."

The key is what you identify as the baseline for a normal or standard load. When I first began teaching nearly two decades ago, a few of my older colleagues told me that at the outset of their teaching career (the 1960s) they routinely taught 15 credits a year. I thought they might have been exaggerating, but it turns out that this was indeed the normal load at non-elite law schools for much of the century. The elite load was around 12 credits a year. Today, judging from several sources, the teaching load at top schools ranges around 8 to 10 credits, and at many non-elite schools around 12 credits.

This reduction in teaching load was explicitly advocated as a means to free up time to produce more scholarship. A version of this trade-off exists today at a number of law schools that allow professors the option to obtain a course reduction in exchange for writing an extra article.

As you say, it is hard to pin down the cost of scholarship, which comes in may forms (summer grants, research leaves, conferences, workshops, etc.), but at least with respect to teaching loads I think it is clear that teaching 4 classes instead of 5 (at elite schools 3 classes instead of 4) increases costs. If each professor taught 1 more course, a smaller faculty would be necessary.

If the normal load went back to 14-16 credits per year (7 or 8 classroom hours a semester, the previous norm for most schools), there would still be time to produce scholarship. Less of it would result, to be sure, but there would still be lots of it because we have more law schools and hence more professors overall.

Since there is no way to know what the optimal level of scholarship is (as you say), it seems reasonable to think, given the lower cost, that a return to former norms might be an acceptable trade-off. Looking at it this way allows us to frame the issue in the following terms: what is the argument that professors should teach 6 hours a week rather than 8?

A concrete discussion along these lines would be more productive than general arguments defending the value of scholarship, at least in my view.

Jeffrey Harrison

I am not sure I disagree with Brian but he too speaks in general terms of teaching loads and scholarship that seems to imply there is a uniform measure of scholarship and teaching that can, at some level, be traded off. My point -- perhaps idealistic -- is that we can determine ahead of time what scholarship has the potential to be useful and if a project does not fall in that category the person should be teaching instead. Let's take an example. I read an article recently by Schwartz and Markovits in the Virginia Law Review which revives the debate about the efficient breach. My impressions even though I found it interesting, were (1) so what, and (2) it was unlikely -- even if cited -- to have any influence at all on, well, anything. I believe, even if we apply a very liberal standard to assess what is likely to be useful, we can say ahead of time which projects are good investments. Each reduction from a teaching load of, say 12 or 15 hours, should be based on the merit of the proposal.

anon

If all you were trying to do is make your "narrow and unassailable" point, then I don't see who you are trying to communicate to. Like a lot of other commentators, I think you are blurring together two different audiences. In fact, I think much of this debate has involved blurring together two different sets of critics of legal scholarship.

The first group, what I'll call the scambloggers, actually don't have much of a bone to pick with scholarship at a fundamental level. Their project is pretty simple: they want to fire half of the existing law professors and cut the pay of the survivors, all in order to lower tuition. If the survivors want to write legal scholarship on esoteric topics, the scambloggers probably won't care very much.

The scambloggers' disparagement of legal scholarship is a preemptive move against a presumed objection: namely, that if you reduce faculty and increase teaching loads, there won't be as much legal scholarship. It is at THIS point that they reply that legal scholarship is worthless anyway. But it is important to emphasize the priority of the analysis. For scambloggers, the first and most fundamental commitment is to reduce faculty numbers and salaries. The disparagement of scholarship is simply an implication of this goal; they are not actually trying to change the nature of legal scholarship.

The second group is different. The second group is represented by CJ Roberts and Judge Edwards. This group of bourgeois elites is not trying to radically restructure American legal eduction in terms of reducing its size or cost; they would be happy with lower cost, but that is not where their beef is. Rather, their fundamental goal is to change the type of legal scholarship that is produced, to restore it to the era where judges were the main audience for legal scholarship (with all the respect that goes along with that). Much of the scholarship you cite, while not necessarily doctrinal in nature, still fits the traditional judge-centric mentality, while much modern scholarship does not.

What we have is a political marriage of convenience where two groups with fundamentally different agendas are united in disparaging current legal scholarship for their own purposes. But your "narrow and unassailable point" speaks to neither group. To the scambloggers, the fact that some legal scholarship is highly influential is quite tangential to their fundamental concern for slashing faculty salaries and lowering tuition. To the judges, throwing the documented influence of CLS in their faces is just about the most annoying thing imaginable.

Milan

I think some of the comments are being a tad uncharitable to Professor Piety.

For better or worse, the debate about law school reform has moved far beyond whether law professors should teach 12 or 15 credits a year. As this recent article in the New York Times indicates,http://www.nytimes.com/2013/02/11/us/lawyers-call-for-drastic-change-in-educating-new-lawyers.html?_r=2&, the ABA is apparently considering drastic reforms, with many of the individuals quoted in that article leveling not-so-subtle digs at tenured law professors, their remoteness from practice, and their alleged inability to impart necessary skills. I think the implication is clear - the academy needs to be focused far less on scholarship and more on training new lawyers. A number of reformers have explicitly stated that the training of law students should be done predominately by practitioners. Consequently, I see no problem at all with Professor Piety emphasizing that legal scholarship is important, even if its importance is not always reflected in citation counts.

I am actually sympathetic to the claim that the academy has become too removed from practice. But this (very old) complaint has little to do with the plight of current law school graduates. It should also be somewhat of concern, I think, that the crisis facing recent graduates is being used to breathe new life into the idea that law schools should predominately function as trade schools, particularly as many of the suggested reforms (from loosening accreditation requirements, to eliminating the third year of law school, to certifying paralegal practitioners) are likely to exacerbate the oversupply problem that is at the root of the crisis faced by many recent graduates.

BoredJD

I think anon is right on the money, although I would add that a scamblogger is unlikely to believe that John Roberts or any one of the regular critics of legal scholarship's content or practicality actually gives a fig about students taking on 200K in debt and not getting lawyer jobs. And the scholarship argument is one not really worth having- it's old ground that's been retread a thousand times with the same arguments on both sides, and while everyone has a grand old debate a lot of students are getting screwed.

Your questions at the bottom of the post are troubling. Law firms and interest groups may pay to produce some small fraction of legal scholarship but let's get real here- the overwhelming share of the cost is borne by the students and ultimately the federal government. At the end of the day, what you are really arguing for is not the subsidy of scholarship itself, but the subsidy of the opportunity, or freedom, to produce as much or as little scholarship on whatever topics you want to write on. Scholarship funded by law firms is likely to be focused on a subset of practice areas, scholarship funded by interest groups politically motivated. There is also not likely to be enough money pumped into scholarship by these groups to support the sheer number of professors, number of articles produced each year, or the maintenance of a certain minimum credentialing standard among faculty. So what you really need is funding from a lot of dispersed actors with little ability to concentrate their power of the purse (students) with near unlimited access to capital (federal loans) who believe that they are receiving something for their large investment (access to a profession with a lot of good entry-level jobs).

Do a thought experiment- what would happen if, tomorrow, Tulsa received notice from the federal government that due to its low job placement they are required to cut tuition in half and maintain its class size at 108. Tulsa may do anything to restructure to meet decreased revenue. Most other law schools received a similar notice. What would happen, and how would such a dramatic restructuring affect the quality or quantity of scholarship, and why would this be a bad thing?

Jeffrey Harrison

Mr. BoredJD is on target when he says funding for scholarship is actually a subsidy to write as much or as little scholarship as one wants about whatever. I would just add one extra refinement. It is true that interest group funding would mean a certain type of "scholarship" is funded. The truth is that a huge amount of what law professors view as scholarship is actually slanted to promote one view or another. Law professors, by in large, write extended briefs and call them articles. They know where they want to end up and search for ways to support their positions. I have rarely seen an article by a law professor that is an actual effort to answer a question or test a hypothesis without a finger on the scale and an objective report of what is discovered if the results are that the answer is the "wrong" one or the hypothesis rejected.

Tamara Piety

As to Brian's comments about lumping all "critics" together, I agree. It would be better to separate the various strands because some are more relevant to this post than others. There are many things going on at once here in the responses. The original impetus for this post and the one that preceded it was to respond to the general claim that "most" legal scholarship is irrelevant to practice, is not relevant or influential to the development of the law or is too esoteric. This critique is one that predates the current disputes about legal education as a value proposition and goes back to Judge Harry Edwards' famous article. However, it has become entwined with the debate about the value proposition of legal education even though they are not entirely the same thing. That is, you could think that legal scholarship is terribly valuable and that it is a wonderful thing for law schools to produce and nevertheless reluctantly conclude that, at the end of the day, the cost to produce it is too high given the very difficult proposition in assessing, before the fact, whether any individual faculty member will produce it or which investments will "pay off." I am somewhat skeptical about how much of the onus for the cost of legal education can be laid at the foot of scholarship, skeptical but willing to be guided by the evidence. However, my point is that you can't do a cost/benefit assessment if you don't really have a good handle on exactly what the benefit is and no easy means of reducing it to a dollar figure. Put another way, you might be able to come up with a rough estimate about what portion of the overhead of law schools can be attributed, as a matter of accounting, to the cost of producing scholarship. But it may be much harder to put a number on what the value is of that scholarship is in order to say how much is "too much." The connection between these two inquiries - Is scholarship relevant or useful? and Is it too costly? - is obviously that relevance (or more to the point, supposed irrelevance) is being used to justify reducing the amount of institutional resources devoted to its production. I don't know if scholarship is "too" costly. Perhaps making the 5 course teaching load the norm makes sense. I *am* saying, "Scholarship may be more relevant than many think that it is judging from immediate impact or citation counts because it may take a long time for its relevance to become apparent." But nothing about that assertion either entails that we must continue on exactly as we have been or that law schools are allocating the proper amount of resources to scholarship. For critics whose main complaint is the distribution of teaching to scholarship I only say, "Consider whether you have fully accounted for its value in the same manner that you try to account for its cost and consider how difficult a value proposition that might be."

Anon

Look this discussion misses the point: the scholarship is free! The average prof spends probably 1000 hours a year teaching and another 250 to 500 doing administrative work. So a school is paying $100-150 an hour for the services of a lawyer who could get several times that in the private sector.

anon

I would love the author of the post to directly respond to BoredJD's paragraph:

"What would happen if, tomorrow, Tulsa received notice from the federal government that due to its low job placement they are required to cut tuition in half and maintain its class size at 108. Tulsa may do anything to restructure to meet decreased revenue. Most other law schools received a similar notice. What would happen, and how would such a dramatic restructuring affect the quality or quantity of scholarship, and why would this be a bad thing?"

More law professors and administrators need to stop dancing around the serious issues and answer them head on.

The legal job market can support half as many graduates as are currently provided, and the average starting lawyer pay can bear a debt that is less than half of what the current average legal graduate debt is.

What are you going to do?

Anon

Tulsa can ignore them because:

1) the alleged "oversupply" is cyclical and they intend to be in business for a long time;
2) JD's without lawyer jobs right out of school still out earn BA's;
3) IBR will alleviate the pain for quite some time, very likely at least until the cycle turns.

That said, schools that are heavily reliant on tuition as opposed to endowments should be asking serious questions about the viability and rationality of investing in long term assets with sources of funding that are far more volatile than they used to be.

HYS cover 2/3 of their costs from non-tuition sources. That means their students are buying two extra dollars of resources for every dollar of tuition paid.

If a school is making a genuine contribution to its constituencies (through research, teaching, training, etc.) then it should be able to secure long term support for that effort.

Stop the madness

Well, Ms. Piety, I think you are missing the point again. So let's again look at your motivations. Apart from extremist irrational blather, I have not seen one argument that ALL legal scholarship is worthless. Personally, I think the vast majority is worthless, but unfortunately (at least for me and current students, new grads) my opinion isn't worth anything.

So what is your motivation for writing this article--and the terrible prequel? If we (the so called "critics") are not saying that all legal scholarship is worthless, why are you advocating for legal scholarship in the first place? As a few of the posters above point out, no one is targeting "scholarship" directly. This is because no reformer--whether inside or outside the scam--really gives a shit what you or any other prof writes about. And the fact that--again--you claim that someone, somewhere cares that you or anyone else is writing about feminism or homosexuality simply serves to demonstrate how clueless you are. That you would argue that SOME scholarship is useful when no one (who is reasonable) is attacking scholarship in the abstract shows that you are simply trying too justify the current RATE--not abstract utility-- of "scholarship," which again is merely an attempt to justify the status quo.

"Oh, 'they' and CJ Roberts don't like our scholarship because we are just too edgy for them and the Supreme Court." What a joke. If "scholarship" has become too theoretical and abstract for the US Supreme Court, then maybe you ought to rethink things.

And as an aside, don't use your response to critics to promote Tulsa. Great, a WHOPPING 65.8% of your graduates got full time, long term legal jobs in 9 months. I guess terrible is better than catastrophic, so congratu--fucking-lations.

Oh and here is the language from your school's "Graduate Placement" page:

The University of Tulsa College of Law is pleased to report that 92.3% of its Class of 2011 graduates obtained employment, a higher rate than the national average. NALP reports that 85.6% of the Class of 2011 graduates were employed nationwide. Please see the documents and charts below containing more detailed information about TU College of Law and national employment information for the Class of 2011." The last sentence should read, "Please see the raw data below and draw your own conclusions because this entire paragraph is at best misleading, and at worst complete fraudulent bullshit, but whatever fuck you anyways, you'll come here because you are desperate or stupid." But don't worry, you are merely a prof so you have no responsibility for this, do you? "Don't ask me, I just work here...for 6 figures a year."

But don't worry, the quote above is qualified with the very conspicuous disclaimer headline: "TU Law Surpasses National Employment Placement Average."


Hmmm. Is this misleading? Even in the event that prospective 1L's can navigate their way to this page, they will be inundated with this propaganda garbage before looking at the actual numbers. Why do we criticize scholarship? Because it is the paid for by the misery students who are mislead by this crap, and the money of taxpayers that will eventually foot the bill. Again, your rationalization of "scholarship" is a veiled advertisement and justification of the current law school situation. If Tulsa is so great, why are they like every other law school anywhere, ever, with maybe +5-10% better placement rate (assuming your stats aren't bullshit). Still, how many kids who paid sticker price have no jobs (and therefore ruined their financial lives)?

I don't hate many things, but I hate law schools, deans, and the faculty who knowingly make a living off of ruining young people's lives. This is not a debate--it is a joke. Your attempts to justify scholarship are so hilariously biased and devoid of substance that I am embarrassed to have the same two letters after my name. Cherry picking a few "influential" articles and then saying: "I told you, scholarship is worthwhile," is simply an absurd argument. And if you define "utility," as "relevant to litigants," what % of "scholarship" would have utility?

http://www.utulsa.edu/academics/colleges/college-of-law/Student%20Services/Professional%20Development/Graduate%20Placement.aspx

dybbuk

Citation counts are a fine metric, though a very inconvenient and embarrassing one from the perspective of many law professors. This electonic age provides us with the ability to instantenously determine whether a law review article has ever been cited by a reviewing court or administrative agency, and also lets us search for citations through vast reams of circuit court orders and appellate briefs. As well, practitioners now have ready access to law review articles from our desktops, which should dramatically shorten that "time horizon" before we discover the brilliance and usefulness of your work.

Now, speaking of those "time horizons": What if a Westlaw Next search reveals that your law review article has never been cited by a reviewing court or an administrative agency, or even in a litigant's appellate brief? What if you wait five, ten, twenty years after the date of publication, and that is still the case? Can we then conclude, with a fair degree of certainty, that your article has had no impact on the profession? Must we wait centuries, or maybe millenia, for practitioners to discover the importance of your law review article, feel its mighty impact, and realize how right you were to enrich yourselves so fabulously to the inconsequential detriment of your students' lives and dignity?

BoredJD

From what I gather, your point is that it's impossible to do a cost-benefit analysis of scholarship without a way to evaluate benefit and we don't have a good way to evaluate benefit yet. I actually agree. I read and use law review articles in my work occasionally and they can be helpful, although I do not cite them. Then again, my job is very academic and doctrine-focused, and more importantly, my employer does not pay extra for the law review databases. If I was working in private practice and had to choose whether to pay for the law review Wexis databases, or knew my boss was going to look at my research bills and question whether the client would balk at the increased costs, I probably would not use scholarship at all.

The problem with this whole inquiry, which I hope you reconcile in a future post, is that the revenue you allocate to scholarship does not appear in a vacuum. The proper inquiry is thus the value or benefit to the person shouldering the cost. Here, that's the students. What benefit do the students get from subsidizing the scholarship-centric law school model? Because that's how the people investing the money (students) are going to look at things when they decide if an investment of $180,000 and three years at Tulsa is worth it in view of poor employment figures (16% of the class confirmed making over $55,000 per year).

The three reasons Anon lists (I believe my professors disdained this as dodging the hypo) are actually very telling. 1) and 3) are not a good reason to attend law school even if true, and 2) is unproven and probably conflates correlation and causation as that type of argument often does. A rational, informed student is unlikely to be convinced by any of them.

Tamara Piety

Bored - My point was not that it was "impossible" but that it was at least very difficult and I felt that some of the discussion failed to acknowledge that difficulty. I realize that you (and many others) think that "the proper inquiry" is the one you raise, but that wasn't the one I actually *was* raising.
And despite many comments to the contrary, I actually *do* hear the crude version of legal scholarship is "worthless" or "mostly" worthless fairly regularly. And given the examples sometimes used, *some* of the commentary along this line (and I stress that "some" because I am not making this an across the board accusation) does seem to arise from hostility to the subject matter.
On your comment about buying access to law reviews,I can understand why, all things being equal, a firm would conclude that a subscription to law review articles is less valuable than other parts. As law reviews migrate their content to institutional repositories or put their reviews and archives on line that may obviate some of the paywall factor for small to midsize firms.

I can't answer the question you pose. I just don't have enough information. It is true that I am skeptical that the cost of producing this scholarship (the law school sponsored type) is really the main driver of the increase in law school tuition. (And I am undoubtedly, by virtue of my position, not entirely objective, but is anyone in this debate?) The cost of producing scholarship clearly has some role, but it is hard to credit that it is the main source of the problem. I know some people have offered proposed estimates of what it contributes to the cost of law school, but I don't find those estimates entirely convincing, in part because I think the lower teaching loads, high salary thing (like above $200,000) is actually not that widespread and that law schools have long valued the production of scholarship, well-before some of the large increases. And there doesn't seem to be a very good correlation between the cost of law school and the presence of highly productive faculties until you reach the very top echelons. However, I have not extensively studied what factors go into the cost of law school and I leave most of that discussion to others. I have raised a couple of other potentially contributing factors in a comment to Dean Yellen's post on US News - need for administrative staff to track data and increasingly expensive student housing as the norm - which might play a role in tuition increases. Health care costs for employees has also been a huge number for university overhead. But I haven't studied these factors so I don't know. And in terms of the job market there is also the general economic downturn and the changes in law firm practice structure which may contribute to that part of the employment problem. But I am not an expert on those issues and so I am not trying to defend the cost of legal education. Again, I was NOT trying to convince anyone that everything in legal education is hunky dory, that I know what the right level of investment in legal scholarship is or ought to be or that law school is the right choice for everyone. I was trying to address the claim that legal scholarship is of little relevance to the law - its shape or its practice - and ask whether some of the claims that it is of little relevance take too narrow a view of relevance or utility. Apparently you can't even raise an issue like this without running into a buzz saw of invective and personal attack, something which I note that you have pretty much eschewed and for which I am extremely grateful. Thank you. Most of us did not go into this line of work to either get rich or to oppress anyone. To the contrary, comical as it may seem now to many critics, a lot of us thought teaching was a helping profession and wanted to do good!
Like I say, I think a good debate is worth having. Reasonable people can differ about causation. But the phenomenon which started this whole line of posts was one I ran across in an area I do know a great deal about, commercial speech. And as I talked to others about this observation, it seemed to emerge that everyone had their own example from their particular area. It got me thinking that without attribution we may have a hard time tracking the influence of scholarship because it is very, very time consuming to read all that stuff and then compare it to the reported decisions and note what *could be* unattributed influence. Given that the particular example I offered is one involving the widespread adoption of a theory with which I have some substantial disagreements, I certainly wasn't trying to claim that all this activity is invariably a positive social good. Just that scholarship may be moving the dial more than some of the criticisms seem to acknowledge. I am very sympathetic indeed to the financial plight of law students. I stay in touch with many of my former students. I write letters of recommendation and try to mentor students in any way that I can. I cannot single-handedly change the system of legal education or the job market. If there was more I could do to help my former students and current and future students I would. I just have my doubts that it would help them much if I stopped writing.

lolzskoolzbclozing

Many law professors spend less than 8 hours per week actually on the law school premises. They teach their one or two classes, keep a couple of office hours, then it’s splitsville. Seriously. I’m sure they’d respond that they work real hard from home. Many many hours on their laptops writing their law review articles that nobody reads. “Scholarship” (or, as the law students and practicing attorneys call it, “scholarsh*t). Yes, yes. You must not overextend yourselves you hard-working law professors…we are all depending on your hard, hard labor that you perform from home. Or while on sabbatical to exotic locales. I understand that some of you even blog from time to time. Oh my, so much to do and they only pay you $200,000/year to do it. Good thing those kiddies keep paying you with their student loan money. Oh, wait…the kid’s don’t apply to law school anymore. Uh oh….

Anon

200K? Cite please. Correlate with evidence of 8 hours a week on campus.

John Quinn

"Most of us did not go into this line of work to either get rich or to oppress anyone. To the contrary, comical as it may seem now to many critics, a lot of us thought teaching was a helping profession and wanted to do good!"

How is this an effective defense of character once you've become aware of the harm that the product you're selling does to the people consuming it?

The law school industry is the titanic. There are half as many lifeboats as there are people on board. And most of the people that do get spots on the lifeboats still would have been better off if they'd never boarded the titanic in the first place. But the real kicker is that, even while the ship be sinking, and even though it's now common knowledge that there aren't enough lifeboats, you're still selling tickets and boarding new passengers.

If your true intentions are to be members of a helping profession doing good, then stop admitting new students until the hole in the ship is patched and those currently drowning are pulled from the water. Until this is accomplished, nobody in my generation ought to give a damn about your scholarship or your good intentions.

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