The Place of Legal Scholarship in the Academy

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.

 

 

Comments

[Jeff Harrison]

I have been watching the discussion with interest and, frankly, am just happy the discussion is taking place. I think, though, you are still missing the point of the article. It is not a buy in or not proposition. Everyone buys into the fact that legal scholarship produces benefits. I think we intended to make three points: 1)Can the allocation of research subsidization be improved by greater thought to the connection between the research and some outcome other than lines on are resume, appeal to other law professors, citations, and downloads; 2) The current emphasis on citations is not a legitimate measure of impact in a system in which citations are explained by factors that may be unrelated to quality; 3) law professors tend to cite but not engage each other.

I understand that limiting research subsidization by requiring higher teaching loads does not lower tuition (actually, I have not looked back but I am not sure we made a big deal about tuition) immediately but if we, as you seem to have, take a short run view nothing will happen. Over the longer run as there is attrition and people are hired with the understand that they teach more and that allowance for scholarship are not handed regardless of what one does with the allowance, costs could be lowered and resources more effectively allocated. You may disagree but please disagree with what we are saying.

[Michael Risch]

Thanks for the comment. As I noted in the last post, I agree with most of what you say. I think your points 2 and 3 above seem supported by your empirical study, and they don't strike me as intuitively wrong.

On your point 1, I agree with you that scholarship can be improved and even made more useful, whether you call it subsidization or not. I even agree that we might want to incentivize that type of scholarship in some way with limited funds. I suppose where I don't agree is that there must be some outcome other than appeal to other law professors for scholarship to have value. To be sure, there's good appeal and bad appeal, but there is plenty of non-law scholarship that is of interest only to other scholars, and part of an ongoing academic conversation. This is why I keep coming back to the humanities (though maybe humanities folks will say, "We're not like that!"). And that, I think, is the normative difference: I think it's OK to have insular scholarship, and do not consider it a waste of "subsidization." I view it as part of the academic enterprise. That doesn't mean I think that's the best scholarship, most useful scholarship, or the type that I want to write. I just don't begrudge those who do.

As for changes on faculty, I'm not so sure. I've often heard it told of some senior faculty that don't write much that they were hired in a generation where scholarship just wasn't expected so it's hard to hold that against them. I have no idea if that's true or not, but I do know that they aren't getting paid less now.

[Michael Risch]

To clarify my last comment, points 2 and 3 strike me as intuitively right, on the whole, though I might have coded "engagement" a bit differently than you.

[Jeff Harrison]

I think you also agree with 1. I don't now how to make one of those smiley things but if I did it would follow that sentence.

[Michael Risch]

I may agree with 1 in large part :) What I don't agree with is the proposition that legal scholarship is justified ONLY IF benefits can be shown. You don't come out and say that, of course (and your proposals don't suggest that), but I felt like it was a normative underpinning of the first part of the paper (and some of the last), which is what I wrote.

And whether you agree with my statement of the proposition or not, it's pretty clear that the commenters on the last thread do, which is why I wrote the followup.

[Jeff Harrison]

Large part is all one can ask for.

[Christine Hurt]

I don't want to interrupt the colloquy, but I really want to push back on the "research subsidization" theme. Students pay per semester/year/hour; professors get paid per year. Not every hour during that year is spent in class or in class prep. Sometimes it is spent on faculty governance, community service, law student service, bar service, AALS service, and yes, research. (I leave out paid activities.) We don't talk in terms of student subsidization of service, though main campus service can take a professor away from the building as much as anything. I know the analogy is not apt, but I'm thinking of a law firm. Clients pay per hour; associates are paid per year/week/month/etc. Not every hour goes to client billing -- some goes to pro bono, CLEs, professional development, reading, etc. I never heard a client say they didn't want to subsidize my CLE attendance or pro bono (I was a girl scout leader to a school the firm had adopted, and taught Junior Achievement there as well as running the Thanksgiving turkey drive and Christmas angel tree). If suddenly Texas had no mandatory CLE, we wouldn't charge our clients less per hour. I realize that I didn't spend 1/3 of my weekly time on these activities, so the analogy isn't great, but I think referring to scholarship as student subsidized research is a term based on a prior that I don't hold.

[John Jacob]

I am definitely in the camp that believes "legal scholarship is justified ONLY IF benefits can be shown." Teaching and service clearly benefit the university community and I don't see why the same shouldn't apply to scholarship.

Scholarship in medicine and sciences is also mostly circulated among other academic. However, given the costs required to produce any meaningful research in medicine and the sciences, researchers in these fields need to demonstrate the value of their work to funding agencies/industry/foundations. Consequently, medical and scientific research is directed to meaningful areas of inquiry even if there isn't any direct benefit that comes out of the research.

Legal scholarship, on the other hand, can just drift from one pointless topic to another. Don't get me wrong, there are great examples of legal scholarship. However, there are a lot of half-baked musings masquerading as "scholarship" in legal academia. This shouldn't surprise anyone since legal academics don't have to justify the value of their work to anyone. This probably also why there are a lot of computer science journals that publish a lot of hooey.

I would love for us to live in a world where we didn't need an external justification for legal scholarship in order to get legal academics to produce work of better quality and produce work that might have a meaningful impact in the outside world. But maybe it is time we remember that law professors are humans, just like everyone else. People respond to incentives.

As a patent practitioner, there are plenty of questions I would love to have answered. None of them are ever tackled in law review articles. This isn't anyone's fault. We get what we pay for. I wish AIPLA (or someone) had a lot of grant money to parcel out to law professors to look into the interesting issues in our field.

Maybe you're onto something with letting professors buying out teaching. Funding/subsidization of scholarship should come with strings attached. If there's going to be only one string attached, that one string should be to spell out the benefits of the issue/topic being examined.

Buying out of teaching .... I really like this idea.

p.s: Can we please stop talking about cost. I mean, there are half a billion reasons for the rising cost of higher education. Faculty compensation is a part of it, but so is administrative bloat, dwindling state monies, vanity infrastructure projects, government loans, etc ....

[twbb]

To address a few of your points:

"It just means that I view scholarship as something law professors should be doing as part of their jobs, just like any other academic."

I think most people would not disagree that law professors should not be doing scholarship, but rather they should not be in the somewhat unique position where they are given a lighter teaching load in order to do so. And of course, they should focus their scholarship on those things they have been trained in, rather than become armchair historians/anthropologists/sociologists/etc.

"First, I think that people underestimate the amount of scholarship that is funded by outside sources"

I don't think they do at all. I am in a different part of the university and my scholarship is funded by internal sources and I am almost a unicorn in terms of my rarity. The vast majority of other people's scholarship I see is driven through external grants.

"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"

Well, actually because it's their research is considered to have utility. A re-appraisal of some provision of the tax code does not have as much utility as developing a new drug that can save lives. Best case scenario, a law professor might get some idea put into the policy debate, where down the road it might be incorporated in whole or in part to some legislative or regulatory construction, where it might, if all goes right, provide a slightly better legal regulation of some transaction? The whole "benefit to society" aspect is so attenuated that it seems quite reasonable to question the cost of producing that scholarship, not only in terms of the money paid to the professor who came up with it, but also in terms of the money lost on ideas that didn't go anywhere.

"But tuition and professor pay are what the market will bear"

The problem here is "the market" is not any sort of rational market that does what markets are supposed to do: efficiently allocate resources. "The market" here is a bizarre governmental construct where gains are captured by faculty and administrators, and losses are subsidized by taxpayers.

[Jojo]

I raised it in the last chain, but I think it merits repeating. The issue is not whether legal scholarship is worthwhile. The issue is whether legal scholarship, in its current inception, is legal scholarship.

The yeoman's legal scholarship goes unwritten because it is viewed as boring, or mundane, or common. It is more fun to play social justice advocate or social science commentator than to play legal analyst.

Federal conlaw issues receive incessant attention, while state law conflicts, state regulatory or state statutory issues go unnoticed. Practitioners really, really appreciate (as do courts) the law review articles that synthesize a body of law or conflicting judicial interpretations. It is likewise valuable when a scholar has done the hard work of statutory interpretation with regulatory pointers. Too few in the academy find such work to be worthwhile.

Don't write a law review article to say something; write because you have something to day. Be original and dig in the unsearched paydirt.

[anon]

Please describe the nature, level (in terms of hours per week) and effects of the "service" provided by law professors.

[Howard Wasserman]

Michael: I think the buy-out point is an important one in response to the argument that eliminating internally funded scholarship would lower salaries would lower tuition. My wife works in a non-hard-science discipline in which scholarship is almost entirely outside-funded through the creation of programs and projects. All of the top researchers use some of this outside funding to buy out of their teaching obligations. And, as you said, tuition is not budging.

[John Jacob]

I don't quite why we're fixating on tuition. At some point in the last 20-30 years the people who run universities decided that their primary job was to maximize revenue. Anything given back in terms of faculty compensation will simply flow into "administration."

[John Thompson]

It's good to see that nothing has to change about law school just because the applicant pool is as small as it's been since LSAC came into being, and still shrinking.

[Derek Tokaz]

"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."

How many is "many"?

How many summer grants are endowed? How many endowed professorships come with research money? What percentage of the professor's pay does that endowment cover? What percentage of professors does this group represent? How much private research funding is there?

[public interest lawyer]

There's something that doesn't ring true about this whole discussion. Walk through the corridors of a law school faculty office building on any weekday and see how many faculty members are in their offices working at something. Then take into account that most only have teaching duties two or three days a week and that the academic calendar only requires their presence on campus seven months of the year. Compare their accountability to practicing attorneys who keep track of what they are doing every working hour (if they want to get paid) or even high school teachers who teach five periods a day every day of the week and also do service work (coaching, extracurricular activities, committees, counseling). The discussion of whether there is empirical evidence that legal scholarship is worth the cost to the institution and its students wouldn't make very much difference if everyone knew that law professors work very long hours at moderate pay, and that they do legal scholarship on their own ample free time (those five months a year) without needing an additional financial incentive and out of a sense of dedication to the life of the mind rather than for money and in lieu of other duties. In fact, everyone suspects that the opposite is true.

[Matthew Bruckner]

Perhaps this was picked up in the earlier thread (which I admit to not reading), but have you all hashed out the possibility that professors may become more expert in their subject matter by reading and producing scholarship?

Frankly, the notion that most legal scholarship is crap supports the notion that law professors--as a whole--have a lot to learn still. Could that be legal scholarships' value proposition?

[public interest lawyer]

One more point. Law school is a professional school, not a trade school or a graduate school. That means that law professors are paid primarily to train professionals. Their salaries are paid by the lawyers they are training. The traditional job description is that law professors, in addition to teaching, are paid to critique doctrine, judicial decisions, and public policy in order to be of service to judges and lawyers (who are law school graduates), as well as to write about legal history and philosophy, if that inspires their intellectual interest. In other words, law professors have to train professionals, which is their principal job, and to advise the profession, not just to speak to each other. The two jobs are interrelated because scholarship informs teaching and lawyers need to be trained by experts. But in fact, as Professor Harrison notes, law professors often do not even engage each other in the way appellate judges have to do. They cite each other and that is a different thing.

[Derek Tokaz]

Public interest lawyer,

I'm not sure how you got arrived at professors only needing to be on campus 7 months of the year. Summer breaks for law school are considerably shorter than undergrad, and the Christmas break is nearly non-existent if you consider time needed to grade papers.

But, professors are still left with 10-12 weeks during the summer. If scholarship is only 25% of their job, as some have suggested, then the summer would be ample time, with very little time during the school year needed for research, maybe just 1-2 hours a week to keep up with newly released articles. That would allow professors to teach 3/3 course loads during the regular school year, and thus greatly reduce the headcount, perhaps by a third.

Also, I think you raise a good point about it being a professional school. We often hear the "it's not a trade school!" argument, but that should be met with "it's not a PhD program either!" I believe you're absolutely correct that it makes sense to view scholarship in terms of service to the profession.

[Trek]

1. I think JoJo and public interest lawyer made excellent points about the contribution of current legal scholarship to the profession.

2. I think you're erecting a bit of a strawman--I don't think (most) comments are advocating for the abolition of legal scholarship, they're talking about revising the current model for that scholarship, including decreasing the amount of it (but not eliminating it).