My last post generated some spirited and thoughtful comments. Some of those comments seemed to miss my point, so I thought I would expand here. Several of the comments were that I somehow misunderstood Harrison & Mashburn, because law school tuition is so high, and students are subsidizing legal scholarship (and therefore, it must show value to justify the subsidization).
But these comments demonstrate my point. The mere notion that scholarship is somehow subsidized, or that professors are "teaching part time" while working on scholarship, or more generally that its value is present only if the work is beneficial to someone else reveals the prior normative viewpoint that I simply disagree with. I write this post not to convince those who hold the prior. I will not convince them, and they will not convince me. I write this because I don't think that they even recognize that they hold the viewpoint; which is why they cannot fathom how I might disagree with the inquiry in the first place, and instead must somehow have misunderstood their point.
I get the point. I merely have a different normative view of the enterprise: that academic scholarship--including legal scholarship--is a good in itself, and that one need not show its value to others to justify its existence. Now, this doesn't mean that there isn't a lot of useless work out there, because there is. And it doesn't mean I think all scholarship is of high quality, because it isn't. And it doesn't mean that we shouldn't make it better - I agree in principle with many of the suggestions in the Harrison & Mashburn article. It just means that I view scholarship as something law professors should be doing as part of their jobs, just like any other academic.
But law school is different.
I wrote in my last post that I reject the law school as trade school motif. And so do universities. At my old school, a research university, every professor from every school filled out a form detailing how much effort would be devoted to teaching, scholarship, and service. No more than 40%, no less than 20% was allowed for each category, and each school's dean used these percentages to judge merit pay.
Law professors filled out this form as well. Why? Because scholarship and service are part of what law professors do, just like any other professor. Sure, you can view it as subsidized; goodness knows that no one should have to pay for me to sit in another committee meeting. But self-governance is an important part of university life, and that can take time. It's all part of the basic salary.
But tuition is higher!
I'm not convinced this is completely true. Tuition for undergraduate schools is pretty expensive. But tuition and professor pay are what the market will bear. The market is bad right now, and tuition (after discounting) is going down, and hiring is down (and I suspect faculty salaries are not growing at the moment). Students pay what they will pay for the university enterprise, with scholarship and service built in. If they don't want to pay it, then they won't come (and, indeed, they are not coming right now). But they did before, and they will again. And none of that has anything to do with whether professors should produce scholarship, because that's what professors are paid to do.
And I should note that at least some of this is benefits students. The US New rankings are based in large part on peer rankings, which are based in large part on historical scholarship produced. So, tuition dollars pays in part for scholarship, which pays for prestige. The feedback loop is imperfect, as we know (and as the Harrison & Mashburn article shows), but it is naive to say that students get nothing from tuition spent on scholarship. (I do note that tuition is high at some lower scholarship producing schools - I discuss this below). Of course, this shouldn't matter either way.
Others are willing to pay for scholarship in other fields, but not law.
This is an overstatement in two ways. First, I think that people underestimate the amount of scholarship that is funded by outside sources. First, many summer grants are endowed. Second, many endowed professorships come with research money. Third, outside money is growing, though much of it is private. Indeed, there probably would be more private funding except taking that money would make scholars look biased. I know I haven't sought all the money I could because a knee-jerk reaction is to judge scholarship based on the funder.
But let's do a thought experiment. Let's say the government gave every professor another $50K to do scholarship. Would we really expect tuition to decrease? I don't think so. First, for the reasons described in the next section, I don't think law schools would suddenly cut tuition. We know undergraduate professors are funded; where are the tuition cuts? Second, the reality is that such funding is often not for the researcher's salary - it is for costs associated with the research: labs, equipment, materials, assistants, graduate school candidates, etc. When the money does actually pay for the researcher's salary, you often find the researcher not teaching! Why? Because scholarship is part of what a professor does, but so is teaching. And the professor funded for extra scholarship might buy out of teaching. So, if $50K grants started coming in, you would see the same tuition, maybe $50K reductions by law professors in exchange for reduced teaching, and that $50K spent on others who teach instead (and also do unfunded scholarship).
For those of you who think I'm talking crazy, take a look at this chart of costs of research:
This chart tells us a lot of things. First, it shows that the supposedly huge spending on law scholarship is actually tiny when compared to many other fields. (If you can't read it, that's Billions on the Y axis.) Indeed, for the amount produced, it's a downright bargain. So, if you think quality and usefulness is low, perhaps you get what you pay for.
Second, the chart tells us that law is a lot like the humanities - a low grant funded area that arguably has little external benefit. And there are lots of folks who think we should get rid of humanities scholarship, too. But I don't, because that's part of what professors get paid to do. Yes, they get paid less in the humanities, but see my point above about supply and demand.
Third, business schools are not far behind, and they share many of the same traits as law schools - expensive professional schools. But the demand for business school remains high (with less tuition discounting, I'd guess) and no one questions the existence of business school scholarship or requires it to be useful to justify its existence. Why? Because that's part of what professors are paid to do.
Fourth, medical schools have very expensive tuition, and yet they are also primary recipients of grant funding because everyone wants their research. Why is that? Because it's expensive to do that kind of research. But the grants are not somehow magically lowering tuition because all those researching professors are getting the research paid for. As I note above, it's about supply and demand, and it's also about the fact that research professors getting big grants either pay others with the money or they pay themselves and maybe teach a bit less (or they teach the same and make more money). But what they don't do is reduce student costs because someone else is paying for scholarship. Because scholarship is part of what professors are paid to do.
What happens if we got rid of scholarship?
One commenter asked me to discuss why I disagreed with the estimate on the cost of scholarship, and what I meant by marginal cost. By marginal cost, I mean the marginal cost of producing all scholarship versus none. The cost estimates assume that if scholarship went away, then somehow law school would be cheaper by applying a percentage of time formula. I don't think so. First, you are unlikely to see major drops in the number of professors. Sure, some professors can teach more classes, but you still need subject matter diversification for expertise (expertise enhanced, I should add, by doing scholarship). More cynically, if law schools are really as corrupt as everyone says, then it's more likely that professors will just stop doing scholarship and continue to work "part time." Tuition would remain the same, but now there's no scholarship. Marginal cost of scholarship/benefit to students of removal = 0.
Another way to think about this is to plot tuition by scholarship produced for each school. You would be all over the lot. In the top 10 for student indebtedness are some of the lowest ranked schools and some of the highest. Surely the amount of scholarship produced between them varies widely, but the tuition does not.
You either buy in, or you don't
This is not a new debate. Someone else must have written about this before, and if this were a law review article I would find and cite (and engage with) such discussion. But the upshot is that you either see law school as an academic unit whose professors should be doing three things (teaching, scholarship, service) or you don't. And if you don't, then of course you will look for the value of scholarship to justify its price tag. I think there can be such value even if many articles go unread and uncited, but I'm not engaging that debate here. I'm just putting myself in the the camp that says that student tuition pays for professors who do more than teach, just like it does in every other academic unit -- even the ones that get grant funding.