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April 26, 2011


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Howard Wasserman

Well since (if I were independently wealthy and not need to earn a salary) I would teach and write articles for free, I really am getting paid that much just for grading . . .


In a message to the legal writing listserv, Neumann explained a bit more:

A week ago, I spoke on a conference panel. A lot of statistics were involved, which I was trying to discuss in a nuanced way. A reporter was present, and she wrote a story that mentioned two of those many statistics, $100,000 and 43%, in a way that oversimplified a lot of complex material. It's not her fault. She had only a few column inches at her disposal, and reporters have to write about so many different kinds of things that the most diligent and careful of them will routinely get things not quite accurately in the stories they write. (I've been in her position and have inadvertently done the same thing.)

In the last few days, quotes from that article have provoked, mostly on blogs, expressions of very strongly held views pro and con. As far as I know, none of the commentators on blogs heard what I said. I think I should explain what actually happened.

The organizers of the conference decided to have a panel on how the role of tenured faculty might be restructured to deliver a better education for students. They asked me to speak, and I agreed to do it because I thought they had defined the topic inaptly. The real question isn't tenure. It's job security in general - who has it, who doesn't have it, and why that matters.

When I spoke on this panel, I made three points. The first was that a lot of research shows that people are more likely to take the risks needed for innovation if they have job security. That doesn't mean that most people with job security innovate. Nor does it mean that people don't innovate unless they have job security. (By the way, I go to writing conferences because that's where the most innovative teaching is discussed, although a number of the presenters have little job security or none.) Social science research shows that people who are capable of innovation are less likely to do it when they feel insecure about their jobs. (My own experience is consistent with this. I was off-tenure-track for 15 years, much of it on one-year contracts, and I was less likely to speak truth to power then than I have been since.)

A school is therefore better off if ALL full-time teachers have job security or are eligible for it.

The second point was that the most important thing we do is teach. Scholarship has value, but not every article can be justified and its cost passed on to students. In a typical medical school, tuition supplies only 4% of operating expenses, and all the research is paid for out of government grants and contracts from industry. Students pay for none of it, and the research is done only if organizations spend their own money convinced that better medicine will result. There's no such limiting factor in law schools. The whole system encourages scholarship without regard to its usefulness to the profession. At most law schools, tuition supplies the overwhelming majority of operating expenses, which means that students are going into debt to pay for law review articles. And students have no idea how much of their debt has paid for that.

Reasonable people can disagree about the percentage of law review articles that are worth what students have paid for them, but it is not 100%. There's no way to measure this, but even if the figure were to be high, say 80%, the remaining 20% would pay for a lot more of the teaching students need. The $100,000+-per-article figure is derived from the SALT salary survey combined with commonly believed estimates of the portion of a tenured or tenure-track job that is supposed to go scholarship (rather than teaching and service). Depending on who you ask, you'll get estimates in the range of 30% to 50% of the job. The $100,000+ number assumes that the author is a highly paid senior faculty member at a 50% school who took a year to write the article and got a research grant, supplementing salary. It takes into account fringe benefits based on salary, mainly employer contributions to retirement. This is a shocking number, which is why it went viral on the web.

(In the short time available for this presentation, I was not able to discuss something else. To me, the most valuable articles have been the ones I've read in the two legal writing reviews, the ones published by LWI and ALWD, as well as the Clinical Law Review. Those three reviews are different from the ones where the $100,000+ article is most likely to be published. First, they are peer-reviewed. An article is published there after evaluation by professionals on their editorial boards. And second, many of those articles have been written by people who are underpaid and overworked, which means that student tuition paid less, in many instances much less, of the average articles' costs. Regardless of where an article might be published, it's possible that the average cost of the most valuable articles is less than the average cost of the least valuable ones, although I can't think of a way to test that empirically.)

The third point I made is that the culture of legal education makes it very difficult to change the way faculty resources are allocated. Every school is chasing the same model, and students are being short-changed because of an oppressive conformism among faculties. Faculties ought to think about what's truly important in a life's work. The last thing I said on this panel is that on my deathbed nothing I've written will really matter. The only thing from my professional work that will matter is whether or not as a teacher I've touched students in ways that have made a difference in their lives. That's true for everybody on a law school faculty, whether they realize it or not.


Richard K. Neumann Jr
Professor of Law
121 Hofstra University
Hempstead NY 11549
(516) 463-5881

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