The utility of scholarship

One thing we in academia are often hearing about from members of the bar and bench is how irrelevant much legal scholarship is for practice or how too much of legal education is "theory driven" instead of being "practical."  The Chief Justice himself has weighed in, suggesting that too often law reviews are filled with content he finds of little value. Many people have addressed this issue. For instance, there is this nice bit from Sherrilyn Ifill. What the Chief Justice Should Read. But it seemed worthwhile to weigh in again on this question since it is a complaint also raised in connection with the general fusillade of criticism launched at legal education, that is, that one reason legal education is too expensive is that professors spend too much time on this relatively worthless enterprise.  I am not going to try to argue how much is the appropriate amount of time to spend on scholarship. But I do want to take issue with the issue of its worth as measured by its impact in the world. It has more impact than these criticisms reflect.

The criticism of scholarship is intertwined though with another criticism, this about the utility of practice to scholarship and teaching and whether law schools pay enough attention to practice in their hiring.  That old canard, "those who can do and those who can't teach" rears its ugly head in the comments section to the piece cited above. That too deserves some rebuttal and since it is connected I will address it first.

On the hiring issue, my sense is that most law professors have some practice experience.  There is no question that practice experience is valued differently at different schools and  it is probably the case that in most schools a very long period of time in practice may raise some concerns about whether someone can successfully transition to an academic position and be willing to, as it were, start at the bottom again as a junior member of a new profession (academic) after getting used to the prestige and authority of being a senior member of the profession of practicing law. But Jeff Lipshaw has words of wisdom for that transition (see his great article Memo to Lawyers ); and he and countless others have proven that it can be done. So the idea that practice experience is not valued is not true at the level of gross generality in which it is often repeated. - the cararicature of a professor who has no idea what it is like to practice law.  It is simply not true in my experience.

Now admittedly, "my experience" is not a scientific study;  but I have been a student, faculty member, visitor or fellow at a wide range of schools: University of Miami, Harvard Law School, Stanford Law School, University of Missouri-Columbia and FSU, in addition to my permanent position at University of Tulsa. And in all those places most (even if not all) of the faculty had some experience practicing law, often at a very high level.

But here's the rub. Even if you have practice experience, at some point that experience will become stale. That is, your practice experience from 10 or 15 or 20 years ago undoubtedly continues to have relevance for your teaching and scholarship; but some of it is going to reflect a different world than the one your students enter. When I was in practice we still routinely dictated memos and pleadings. I don't know if that is common now. The internet, email and electronic discovery/filing barely existed, even though word processing and computers did.  Court reporters took most depositions and video depositions were the exception not the rule. Social media didn't exist at all. Does that mean my practice experience is irrelevant? I hope not.

But even if all law schools suddenly made practice experience the sine qua non of hiring, that experience would soon become stale with the passage of time unless we continue to practice (and some do). Whether you think this is a bad thing may depend on what you skills and knowledge you think practice experience brings to teaching and scholarship. It could well be that the bits that degrade over time aren't so critical to what you have to offer to students from your practice experience and so it doesn't matter that it wasn't very much or that at some point it will become stale.

Either way, given that it will inevitably grow stale, it is easy to understand why schools wouldn't make practice experience the be all and end all of hiring. What they do clearly value is scholarship. Written work is one of the few things that it is possible to assess ex ante as opposed to ex post.  (It is hard to assess in advance what sort of teacher someone will be.) We want professors to be productive scholars. Productivity is often a product of intellectual curiosity and enthusiasm. And that intellecutal curiority and enthusiasm often contributes to good teaching as well. So there is nothing particularly illegitimate that law professors, like professors in other fields, explore what is of interest to them without first considering whether it will be of interest to others, or more grandly, to the practice or even the world as a whole.

And that brings me back to the utility of scholarship. The idea that scholarship makes little or no contribution to the practice of law or society is simply not true.  In saying this I do not mean to question the sincerity of those expressing contrary opinions.  Perhaps critics are really responding to the great increase in quantity. Or maybe to the quantity compared to quality. Or maybe it reflects discomfort with the subjects - feminism or queer theory and isn't really about relevance at all. I can't really do more than speculate about the reason why this complaint has so much traction now. It is worth noting however that it is an old one and so not the product of some recent decline in standards or loss of focus. After all it was Fred Rodell who in 1936  wrote, "There are two things wrong with almost all legal writing. One is its style. The other is its content." Goodbye to Law Reviews

However, this complaint has new life and particular traction in light of the distress in legal education. So I want to offer a modest objection and corrective. This is only a partial list of examples of legal scholars who have influenced the law and society generally. It is by no means exhaustive, but I think it is sufficient to show that legal scholarship has had and continues to have an enormous impact on the law.

So here it is. I apologize in advance to anyone I may leave off of a particular subject and I hope readers will offer their own examples.

Let's start with the "good old days":

• Felix Cohen - Indian Law

• Karl Llewelyn - the U.U.C.

• Von Mehren & Trautman - General and specific jurisdiction (hat tip to my colleague Chuck Adams for this one)

• Berle & Means - corporate law, the agency problems and corporate purpose

"But," perhaps, I hear you say, "that is precisely the point! Legal scholars used to contribute to the development of the law but they do not do so any more."

So let me move to more recent examples:

• Martin Redish - the commercial speech doctrine

• Richard Posner, Calabresi, and a host of others - application of economic analysis to law of all types, torts, contracts, even First Amendment

• Joseph Sax - Environmental law

• Morton Horwitz, Lawrence Friedman - history and law

• Duncan Kennedy, Peter Gabel and a host of others - CLS (which in turn was incredibly generative of a critical turn in law generally mcuh like economic analysis)

• Catherine MacKinnon - sexual harrasment

• Lawrence Lessig/Jonathan Zitrrain - internet and IP

• Richard Friedman - Confrontation Clause

• Monahan & Walker - Social science and law

• Saks, Kaye, Faigman, et al. - and forensic science and evidence

• Cass Sunstein - punative damages (and plenty more)

These are just a very few examples and they are rough abbreviations of subjects. (I trust people will feel free to add and correct as they see fit.) Even so, I think the list serves to make the point.

Moreover, even with such an illustrious list, if you look for evidence of these authors' influence in  reported decisions you won't always find it there.  I will use the example I know best.  No one reading Martin Redish's 1971 article, "The First Amendment in the Marketplace: Commercial Speech and the Value of Free Expression,  39 Geo. Wash. L. Rev. 429 (1971) can doubt that it influenced the 1976 Virginia Pharmacy decision, or at the very least those who argued the case. But the article was not cited in the opinion.  Moreover,  the article was written in 1971 but it is not until recently that the Court has come to more fully embrace the arguments there. It has only taken about 37 years.

This is but one example of a legal scholar having a profound influence on the law. But those two aspects of this example - the absence of citation and the range of time over which it took for its full influence to be felt - illustrate some of the pitfalls of trying to assess the "worth" of scholarly activity by its immediate utility to practioners or by citation counts.  Sometimes good work takes a long time to make its impact felt. Sometimes it may be adopted quickly. Sometimes one's view about whether it is "good" is a normative matter or how you define "good." But if "good" = "influential" there is no question that this peice was incredibly influential and thus very good indeed.

Normative disagreement with the substance of a field or an approach (which I thinks accounts for overlooking the contributions of CLS, CRT and feminist theory to offer only a few examples) does not mean it is not useful. I daresay the work of MacKinnon and others was very useful to Ann Hopkins and her attorneys.

I suspect there is plenty of work being produced now that is similarly useful but the utility of whichwe may not know for some time to come. I submit that in legal scholarship, just as in other research, it is very difficult to say in advance which theories will bear fruit and which will not, which are "useful" and which will be forgotten. And it may well be the case that a very great deal of work needs to be produced in order for any good work to be produced. But that inability to say in advance what is "useful" should not be a reason to abandon legal scholarship or to disregard its very profound and continuing influence on the law, even if that influence isn't always immediately apparent.

 

 

Comments

[Patrick S. O'Donnell]

Thanks for this Tamara. As an "outsider" with a longstanding interest in the law and most things jurisprudential, I must say I find it remarkable that such things need to be said, again and again!

[BoredJD]

Whenever I read one of these posts I am always shocked at how you miss the point. The point is not that "scholarship is worthless" or "scholarship needs to be practical." The point is that when half of all law students can't get jobs, and law schools that are placing much fewer than 50% of their graduates in lawyer jobs cost as much as schools that place 80 or 90% of students in good outcomes (outcomes that will let them pay back 150K or 200K of debt), it makes sense to look at exactly what the taxpayer is getting for what appears to be a very large subsidy to the legal academy.

That's an impressive list of scholars. They overwhelmingly teach at elite law schools where most of their graduates get biglaw, A3 or SSC clerkships, or PSLF qualifying employment with good LRAP programs. I attended one of those schools and can tell you that most of the students did not care what the professors studied or wrote about if the job opportunities were there. My professors could have stood on their heads and read 50 Shades of Grey all day- the school was still a good investment at sticker for most of us.

But when an increasing number of schools do not offer a good investment, a good "value-add" for the student, then the question becomes "why is the taxpayer subsidizing these programs?" Your point seems to be that it is wrong to even ask about the utility or value of the content being produced. In other words, the ability of law professors to write about "what is of interest to them without first considering whether it will be of interest to others, or more grandly, to the practice or even the world as a whole" is something that is a social good in and of itself. Therefore, in the face of an increasingly bad deal for students, law schools should be given millions of dollars of federal loan subsidies each year to maintain a current state of affairs where professors can devote as much time to scholarship as possible.

This is absurd, and you owe it to your students to engage more directly with their needs and concerns.

[disgusted]

Do you truly believe that these scholars have "influenced society?" And even if they have, they have done so through an institutional framework that engaged in fraud that has left thousands of young people destitute.

That's nothing to jump up and down about.

When are you law professors going to admit that you played dirty? That you tricked students into paying vast sums of money for an education that left many of them without jobs and in debt up to their eyeballs? Did you really think that those $200k salaries had no relationship with tuition? Don't worry about making an admission against interest, you already have all the judges in your corner.

I know you're lawyers, but how about some frikin' honesty for once?

[Orin Kerr]

I agree with the basic point of the post that there is significant scholarship that judges and practicing lawyers can find valuable. With that said, I think the criticisms about the usefulness of legal scholarship reflect two different complaints, and I'm not sure the post is fully responsive to them. First, as BoredJD points out, some complain about the costs of producing legal scholarship. That concern is not whether legal scholarship has as any value at all, but whether it has sufficient value to be worth it to the students who are paying for its creation through their tuition dollars. Second, I think that the complaint of the Chief Justice and others is not so much that no legal scholarship has value to lawyers and judges, but that whether scholarship has value to lawyers and judges is not considered particularly important to a significant and growing group of legal scholars. In both cases, the criticism goes more to the relative value of legal scholarship among practicing lawyers and judges than whether it has any value at all. That's my sense, at least.

[Brian Tamanaha]

"I am not going to try to argue how much is the appropriate amount of time to spend on scholarship."

But this the crucial question.

[confused]

To Orin Kerr's point regarding the value of legal scholarship to students: I would love to hear an argument that current legal scholarship provides substantial value to the students/graduates that pay for it. If law school budgets were more transparent, and students could see the amount of their tuition money being devoted to legal scholarship, and they were given the chance to opt out of subsidizing legal scholarship to the tune of $5,000/semester, how many do you believe would take the rebate? The fact that many legal scholars are not concerned with providing value to the people who paid and are paying for their work is a great example of the perversion of the market for legal education.

Professor Piety, you do understand that legal scholarship is funded by federal student loans that are financially crippling the people responsible for paying the money back. Does that not bother you?

[Econ Guy]

The problem is not legal scholarship or how much time is spent on it - rather, the problem is a lack of jobs and the assumption that, if professors spend less time on X (scholarship), they could focus on Y (fill in the blank), and Y will help students get jobs. The better question is figuring out what Y is. In the end, all of this may just come down to the fact that there are too many spots for law students. Let's be honest, just about anyone can get into law school - that's not sustainable and never has been. When I was applying to law schools in the 1990s, I told myself I would not go to law school if I did not get into a top 20 school (or a very good state school that was outside the top 20 but in the top 50). The economics just didn't make sense -- risk was too high that I would not get a job that I wanted. Fortunately, I was able to gain admission to a few top 10 schools (and attended one), and have loved every minute of my career.

[Orin Kerr]

confused,

Your question is an interesting one. I think one of the hard aspects of measuring it is that the benefit to the student (if any) comes mostly in the form of having better employment prospects because of the increased prestige of a school that is associated with well-regarded scholars. So to run your experiment, you'd need to give students a choice that could only exist on paper: Specifically, a choice between paying $5,000 a year to attend a school known for having a top scholarly faculty and not paying $5,000 and attending a school that is identical to the first one except for the fact that the school would be known as having no scholars on the faculty. I think it's hard to know what value students would place on that in part because it's hard to know how much the prestige of a school (and the related marketability of a degree from it) is really related to the scholarly productivity of its faculty as compare to the general reputation of the school, and it's hard to know what would happen to the prestige of a school (and related marketability of a degree from it) that announced that it would henceforth not allow any of its faculty members to engage in any scholarly work. I suppose the experiment would be something like this: Take two schools that are very similarly ranked - say, UVA and Penn -- and fire the faculty at one school and hire professors for that school who have never written a word of scholarship and promise to never write any scholarship of any kind in the future. Then wait a few decades for the impact of the different faculty for that school to be established, and then offer students $5,000 less to attend the school with no scholars. Would students choose the school with no scholars, or would they pay more to attend the school known as having a productive faculty that publishes in the law reviews, treatises, etc?

[Tamara Piety]

Orin - Exactly!. It would take decades for us to see what the consequences of such an experiment would be. And there would be the potential for so many confounds in there (other social, technology, climate changes that would also take place in the interim) that attribution to the scholarship/no scholarship variable might be hard. And what of US News? All of this is interesting as a thought experiment. And I think you put your finger right on the problem. But we don't have enough information. So with what we know, what school (especially in the middle ranks, neither the top or bottom) could responsibly recommend "first we get rid of all the scholars"? Few moves would prove as likely to result in an immediate plummeting of reputation, while having almost no impact on cost (unless we replace all the faculty with adjuncts). And that would surely hurt job prospects for our students. My point in the above is that calculating the value of scholarship, and thus by extension comparing its value to other costs, is not as easy as some suggest because it accumulates slowly and sometimes without easy means to count or quantify. That does not mean it does not exist.

[Adam]

Yes, Prof. Kerr, but what about all the schools without the prestigious faculties (those that exist now as well as the new ones still opening), to which people are going and carrying thousands upon thousands in debt and not finding jobs at all or in BigLaw? In this environment, does the theoretical future value of the scholarship produced warrant the current state of legal education where so many schools proliferate and priority should be placed on instruction over publication?

For all of us with this debt, and practicing law (or not), and not on a law school faculty, the postings on various blogs decrying the criticism of legal scholarship's value seems a bit of ivory tower chest-beating, so to speak.

I don't disagree with the point of Professor Piety that scholarship does contribute to the law and that we may not see its effect directly or presently, but I have to agree with others, that I think these calls for validation are little much.

[Orin Kerr]

Adam, I agree with you that the benefit a student is getting from subsidizing that school's scholarship depends heavily on the school: a student at a top school on average probably gets a lot of benefit, while a student at a low ranked school on average probably gets little. I think the best response to that would be for the ABA to allow schools to take a wide range of different approaches to tenure, teaching loads, and scholarship so that students could vote with their tuition dollars as to what is worthwhile to them. I agree with Brian Tamanaha that the one-size-fits-all approach of the status quo is a serious problem.

[Anon-X]

The argument that there is a one size fits all model somehow bottling up differentiation, which is as Kerr says the BT argument, is a myth. There is a great deal of diversity among and within law schools. No change is needed in the ABA rules to allow this system to continue to flourish which it will despite the doom sayers. In fact, I predict almost no dramatic change in the law school model as a result of the "scam" attack. Instead, rationally, a small number of schools may close, most will retrench to cope with the downturn (caused not by the myth of greater transparency but because with improving economic conditions there are now some alternatives to professional school available to recent graduates) while it lasts.

[Brian Tamanaha]

There is diversity, but around the core academic model (and tuition ranges from $35,000 to $50,000 at private schools). However, a school like Massachusetts school of law, which charges $17,000, has been denied accreditation because it does not meet the requirements of this model (not a scholarly faculty on tenure track, minimal library, etc.). Although the ABA rules prohibit MSL, I have seen no good explanation for why this model cannot produce competent lawyers.

[BoredJD]

Orin, I think the more interesting idea would be to take two schools, located in the same metro area, both with high tuition but with similar job prospects (FT lawyer jobs >50%, most people getting hired by small firms and local government with salaries ~40-50K per year. At one, you clean house, firing all the tenured professors and hiring adjuncts, as well as getting rid of the various perks and large administrative staff. At the other, no change.

For example, the NY metro area has CUNY (total resident non-discounted cost $111,000, and NYLS, Pace, and Touro, (total non-discounted cost of over 250,000 each). What you see from browsing the placement stats on LST is that CUNY has no placement- zero- into firms with over 50 lawyers. NYLS, Pace, and Touro have some, but it's a negligible amount. The overall employment score for each school is around 35-40%. Every other sub-category is basically the same, with CUNY having a distinct advantage in PI and government jobs- jobs that if you hold for 120 years you get your debt wiped out. It seems to be that the extra $140,000 is not buying much for the median NYLS, Pace, and Touro student.

Now I know that this comparison is impractical for a number of reasons. First, CUNY obviously has some out of state students subsidizing the tuition of the in-state students, second, the school presumably gets some money from the state. But then again, CUNY certainly does not have a faculty composed entirely of adjuncts, they have a very respectable tenured faculty. They are not as "bare-bones" as they could be.

Now if NYLS, Pace, or Touro decided to cut their faculty, what would the practice effect on their students be? I'd venture to say not very much. They types of employers who hire out of those schools may simply not care much about the production of the tenured faculty or the school's national reputation as measured by USNWR.

[BoredJD]

Correction: If you hold the government jobs for 10 years (120 monthly payments) then the debt is wiped away.

[Anon-X]

California has lots of non ABA schools and does not even require a law degree to sit for the bar. Yet thousands of students continue to seek entry to ABA accredited schools. This suggests that "accreditation" is really just information about a different path to becoming a lawyer. It is not a barrier preventing access. California would appear then to be a natural experiment that contradicts the FLS thesis.

[BoredJD]

Well, you can't get federal loan money without going to an ABA school, and you can't sit for the bar in most states. So no, it is not a good comparison.

It's interesting that some unaccredited law schools have higher pass rates than ABA accredited law schools charging hundreds of thousands of dollars.

http://admissions.calbar.ca.gov/Portals/4/documents/gbx/JULY2012STATS.122112_R.pdf

[anonynon]

Bored JD,

You're not right about the point about federal loan money not being available for non-ABA schools. For instance, San Francisco Law School is only Cal Bar accredited, and its students are eligible for federal loans. See http://www.alliant.edu/sfls/admissions/fin-aid-scholarships.php. And while it is true that graduates of non-ABA schools in California can only practice in California, that's still a significant market to serve since it's the eighth largest economy in the world.

[anon]

I would love to see Professor Piety directly respond to BoredJD's first post.

[BoredJD]

The eighth largest economy in the world does not mean the state has a high demand for legal jobs. Please stop using these irrelevant macro statistics when there is school-level data available showing that CA produces many more JDs than there are demand for entry level lawyers. California is also likely to attract a lot of competition from law students outside the state. CA Accredited students do not have the same ability to travel.

Your link is broken, and goes to the Alliant website generally. Can you provide evidence that DOE's policy that only ABA institutions are eligible for federal aid is waived for CA accredited schools? This school seems ineligible for federal aid: http://www.empcol.edu/school-of-law/financing.