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April 02, 2013

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James Grimmelmann

Bounties based on law review placement send a terrible signal about the intellectual seriousness of the schools that offer them. They say that the school is obsessed with the perception of scholarly quality, but isn't actually concerned with the scholarship itself. They say that the school's administration and faculty aren't willing to put in the hard work of reading each others' articles, or the delicate work of passing judgment on the actual contributions those articles make. The practice is cynical, lazy, and corrupt.

CBR

It also incentives scholarship topics popular with 2Ls at higher ranked school. I suspect that articles on the UCC or on family law issues would not often quality for the bounty--but con law/fed courts stuff often would.

Michael Cicchini

This is just one more example of the profession's obsession with status. US News dictates where most students go to law school, it dictates who the schools hire as law profs, and it dictates where the profs' articles get published. (All of these points come with some exceptions, of course.) Without the pecking order, the legal profession wouldn't know what to do with itself. I'm surprised, however, that a reputable magazine like Business Week hasn't come up with an alternative ranking, perhaps one that excludes many of the absurd inputs used by US News, like a school's reputation among other faculty or the size of a school's library.

Lawprofblawg

Did someone say a bounty for publishing in a high-ranked law review (perhaps one with dwindling readership)? Tell me which schools have one! I want to go to one of them. I could write something in an under-served area such as unconscionability (2Ls love that!) or perhaps something on the Hand Formula! I'll be (relatively) rich!

CBR

Lawprofblawg, I recommend writing about efficient breach--apparently that's hot (see, e.g., http://www.legalethicsforum.com/blog/2013/04/law-review-submission-ethics.html )

Lawprofblawg

Good idea! If we write the same stuff over and over again that no one (apart from our similarly situated friends) reads, we can make a difference to society by increasing our rankings. Parole Evidence Rule, here I come!

CBR

I would, but my parol officer won't let me. Apparently leaving copies of my latest law review article on all the car windshields in the AALS parking lot was considered vandalism, and now I'm no longer encouraged to share my work. Who knew? I should've just bought some billboard space to advertise my SSRN site--that's got to be worth at least 10 USN peer reputation points.

Lois Turner

Another example of law schools' craven toadying to US News. The gutless way that law schools allow themselves to be bullied by a defunct periodical is just bizarre.

Anonprof

I think the anger over this practice is a little overblown. First, the idea that this is "toadying" to USN is silly. It's simply a way of evaluating faculty performance, not some sord of tribute paid to USN.

Second, and to James' point, he's of course right that it's a bad idea in a vacuum and sends a poor signal to potential hires about an institution's ability/willingness to sort good scholars from mediocre scholars. But let's assume you're at an institution where the egalitarian culture or idiosyncracies of administrators make "passing judgment" on colleagues' work difficult or unlikely. Let's agree that an outsider should stay away from such a place if they have a choice. What should an insider do?

In short, I think there's a case for these sort of arrangements at places with a less than stellar scholarly culture. In such a case, it may direct compensation towards the more productive group in a way that would be difficult to do without the flawed but objective measure of law review placement.

CBR

But Anonprof, you could achieve the same result in a way that doesn't borrow the flawed metric of US News--if you want to be democratic, elect a faculty committee who will read the year's articles and select the best N pieces of the year for supplemental funding. That would allow people to publish in international journals, or to publish UCC pieces without the worrying about whether they could "sell" the piece to 2L editors.

Anonprof

CBR,

I agree that would be better, but it still presumes a culture where faculty members are willing to tell colleagues their work isn't that good. At certain institutions, that structure degenerates into $x for basically everyone - particularly because at those institutions there's likely to be real disagreement over what is good scholarship. If you assume that result is likely, baking in a USN-based structure isn't a crazy way to allocate scarce money. I agree it poses problems re: topic selection by authors and it makes life harder for tax, international and corporate scholars (among others). It's not ideal, but it's not ridiculous in certain circumstances either.

Paul Gowder

Closest thing I can come up with to a defense of the practice: it's not an incentive to produce high-quality scholarship (which 2Ls can't identify), it's an incentive to produce any scholarship at all. And they can't say "any publication will do," because then people will have an incentive to produce total garbage and send it to, say, one of those "open access" journals that spams academics soliciting any old paper. So they establish an arbitrary cutoff with the idea that the identified journals at least can be relied upon to not print toilet-paper-and-crayon submissions.

That defense is, obviously, flawed. But it's the best I got.

Jack

CBR 5:05: Kudos on the high quality pun.

I got one of those bounties once, for a top 15 placement, and it felt great. Of course, since I care about that sort of thing, I would have sought a high-ranking placement for free. Why might bounties be a good idea? Well, I know good scholars who do not care about placement. They are influential and widely cited, but will publish anywhere, and do not participate in the (admittedly undignified) trade-up game. Bounties encourage high-ranking placements among scholars who do not want to lateral. All other things being equal, good placements are better than bad placements because of the signaling effects, and the cost of playing the game is very low. Put another way, arguably, given the high cost of producing scholarship, faculty have an obligation to the school and the profession place their scholarship in the most useful and visible appropriate venue.

We do not have bounties at my current school, where they would be too costly, unnecessary, and divisive in that some very active scholars publish in solid but not top 10 or 20 journals.

I am also familiar with schools which have minimum quantitative productivity requirements to force non-scholars to write or suffer. I am not sure they are a good idea because the quality of writing done under the lash is not always excellent.

Orin Kerr

I agree that the practice is flawed, although I would want to know more about the culture of that school, and the ways that scholarship is rewarded, to know whether the practice is appropriate for that particular institution. In an ideal world, we could have a reward system that rewards scholars based purely on article quality. But assessing the quality of scholarship is notoriously subjective and contentious, as anyone familiar with faculty appointments knows. Given that, the options tend either to rely on some sort of proxy for quality or else not have any quality check at all. The latter is common, but it isn't a great option for a school that is really trying to incentive scholarship. I know of schools that give summer research funds for publications but that count anything including an op-ed as the required "publication" that satisfies the grant. At that point, the summer research grant isn't really encouraging scholarship; it's just a salary supplement for everyone. On the other hand, choosing a proxy for quality requires figuring out what kind of proxy is best. Should it be page length? Placement? Number of citations it receives by X years later? Nothing is perfect. But if you're going to choose a proxy, you have to choose something.

Jacqueline Lipton

There seem to be two possible and perhaps overlapping rationales emerging in this discussion to explain the practice - one is about quantity (ie incentivizing faculty to write scholarship at all) and the other is about quality (incentivizing faculty to write high level scholarship). In either case, I'm beginning to think that this becomes another discussion about simply getting faculty to do their jobs. If law schools are hiring excellent faculty and mentoring them appropriately, then why should there be a concern that faculty won't do - or won't know how to do - their jobs? So doesn't this just devolve into a discussion about tenure being a bad idea? We give faculty tenure which seems to remove incentives to do high level work and then have to add stipends/bounties/carrots to get people to do the jobs they were hired for.

(Presumably pre-tenure faculty will want to publish successfully regardless of the availability of bounties to ensure that they get tenure or can possibly lateral to a better school, into which U.S. News rankings again become a factor.)

Paul Gowder

Ok, another hypothesis: maybe it's a way of precommitting to increase the salary of those who are most likely to want to/have the option to lateral away, as an anti-raiding device? Not sure if that works, but it's another idea...

James Grimmelmann

Whether or not placement bounties improve the quality of published scholarship (and I suspect they don't, once signaling, opportunity costs, zero-sum rankings competition, and crowding-out are taken into account), their optics are absolutely terrible. The bounty system perfectly illustrates numerous scamblogger complaint about scholarship: (1) Schools prioritize scholarship over teaching. (2) Tenure allows some faculty to shirk their duties. (3) Other faculty want to be rewarded just for doing their jobs. (4) Good scholarship and bad scholarship are indistinguishable. (5) Faculty delegate hard work to students wherever possible. (6) Schools and faculty are obsessed with prestige, as measured by US News.

Placement bounties tend to make each of these six accusations more true, and that, I think, is not a good thing for the academy. If we want to defend the place of scholarship in the modern law school, it helps to have a system worth defending.

vappily ever after

One problem with further incentivizing scholarship is what gets de-incentivized. When so many students are struggling to find jobs, we ought to be pushing faculty members to help in any way possible-- picking up the phone and calling employers, getting face time with students out of class to be better positioned to help those students, etc. Most faculty members are writing and teaching and doing service, but the question is how they are balancing and prioritizing those duties. If scholarship is treated as top priority and merits bonus cash, but getting the best evaluations and helping students find employment are not, I see faculty members working from home to increase scholarly productivity and spending less time interacting with students.

Jack

Vappily: Many schools, it seems to me, have large cash prizes and other honors for excellent teaching. I don't think you are saying that incentives for scholarship should be zeroed out, but perhaps I am wrong. I'd say we should find ways to encourage all desirable aspects of job performance. (I would hesitate, though, before encouraging faculty to spend less time teaching and writing and more time at bar events trying to hustle jobs for students. I am not sure the payoff in terms of job placement would be worth it--if we could do that sort of thing, we would be doing that sort of thing.)

James Grimmelman: Another way to characterize your observations would be: (1) Schools prioritize scholarship AND teaching: Faculty should be working hard all year round. (2) To avoid the possibility that tenure allows some faculty to shirk their duties, schools should often pay one-time bonuses for performance rather than give raises. (3) Other faculty want to be rewarded just for doing their jobs, and they do not get bonuses or raises. (4) Good scholarship and bad scholarship are distinguishable, but incentives that can avoid harming the institution are preferable to those that are divisive. (5) Faculty should provide opportunities for students to participate in the important work of legal scholarship. (6) As members of the human race, and like all other institutions, law schools and law faculty are attentive to prestige, in the hope, perhaps vain, that it reflects real quality and excellence to some degree.

Jacqueline Lipton: In my view, tenure is justified as a competitive necessity in hiring. Whomever School A defines as a good hire will go to their next best choice if the other school offer tenure and School A does not. At least some law schools would get rid of tenure (prospectively) if it were not in their institutional interests. Tenure incentivizes firm-specific investment, including a willingness to hire candidates who are better than the existing tenured faculty. What's wrong with obtaining for the institution both the benefits of tenure, and the benefits of continued incentives for performance, by paying bounties? That being said, I am enthusiastic about detenuring faculty who do not work full time. (Just in case anyone is checking IP addresses, I will state that all of my colleagues work at least full time).

Orin Kerr

Jack writes: "At least some law schools would get rid of tenure (prospectively) if it were not in their institutional interests. "

But see the ABA accreditation rules, which strongly hint that tenure is required if a school would like to remain accredited.

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