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

[public interest lawyer]

This is my own experience with the major state university with which I have been most recently affiliated. http://www.law.buffalo.edu/current/aCalendar.html
I suspect the deal SUNY Buffalo made with the ABA isn't completely kosher, as with so much else about the place, but here it is:

Fall 2014

Monday, August 25 (first year orientation week *tenured faculty excused*)

Thursday, September 4 (first year classes begin)

Wednesday, October 1

Thursday, Oct. 2- Monday, Oct. 6 (fall break - no classes)

Wednesday, Nov. 26 - Friday, Nov. 28 (Thanksgiving Break - no classes)

Friday, December 5 -last day of classes

Saturday, Dec. 6 - Monday, Dec. 8 - reading days

Tuesday, Dec. 9 - Friday, Dec. 19 - final exams

December 20 - winter recess begins

Spring 2015

Monday, Feb. 9 - spring classes begin

Monday, Mar. 16 - Friday Mar. 20 - spring break, no classes

Monday, March 23 - classes resume

Friday, May 8 - last day of classes

Saturday, May 9 - Monday, May 11 - reading days

Tuesday, May 12 - Friday, May 22 - final exams

Saturday, May 23 - commencement

I count roughly September, October, November, December, February, March, and May as owned by the Law School. That is seven months. It leaves June, July, August, and January entirely free. There is fall break, Thanksgiving break, and spring break in the mix, and December and May are really only half months. During the seven months on campus, there's at least two days in the workweek that have flexible commitments. So there is a lot of open time for scholarship with salary checks distributed on a twelve month basis and no other academic duties. Law professors don't have to write their scholarship on the run the way Scott Turow was said to write his novels on his commute to the office in the morning. I don't see where Scott Turow had to justify if his writings qualified as a public good. The only question is whether he was wasting his own time and whether what he was doing was any good, period.

[Enrique Guerra-Pujol]

One commentator wrote: "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."

The problem with this line of reasoning is that we often won't know until many years later what forms of research are "half-baked" and what forms are worthwhile. Think of sports, by analogy. Until the season starts, we don't know with certainty which teams and players are great and which are mediocre. That's the whole point of creating a marketpace of ideas and scholarship generally ...

[Anon]

California already enables a model that allows law schools to hire faculty who only teach. Yet demand for schools that make research central to their mission are the highest ranked and in the greatest demand from applicants. If you can't convince students to change why should the law schools?

[Barry]

Michael: "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). "

First, as has been pointed out, the legal education industry is heavily subsidized. The government and quasi-governmental agencies pay the law schools (through checks endorsed by students), and then collect later.

Law schools are allowed to publish deceptive statistics, with the blessings of the courts (and aided and abetted by every career center in every college in the USA).

These loans are privileged, in that bankruptcy can't be used. This is unlike almost all other loans in our economy.

The most loathsome practices in law schools are approved by the ABA, and supported by every tenured professor who doesn't spit on faculty from those schools whose placement rates are in the basement while their tuition rates are in the penthouse.

If students had to borrow directly, the market would have long since dropped by at least 50%. If law schools loaned money to their students, most would be bankrupt.

[John Jacob]

"The problem with this line of reasoning is that we often won't know until many years later what forms of research are "half-baked" and what forms are worthwhile. Think of sports, by analogy. Until the season starts, we don't know with certainty which teams and players are great and which are mediocre."

Wow, is that a lousy analogy. Before the season starts I can tell you that Matt Carpenter isn't going to win the home run title and that Ryan Vogelsong isn't going to win the Cy Young. Do we really need 10-15 years before we can tell that lousy scholarship is in fact lousy?

"That's the whole point of creating a marketpace of ideas and scholarship generally"

I'm sorry, but legal scholarship doesn't reside in anything resembling a market. Force legal academics to justify their work to a funding agency/foundation and we might have the semblance of a market.

[Derek Tokaz]

"The problem with this line of reasoning is that we often won't know until many years later what forms of research are "half-baked" and what forms are worthwhile. Think of sports, by analogy. Until the season starts, we don't know with certainty which teams and players are great and which are mediocre. That's the whole point of creating a marketpace of ideas and scholarship generally."

What a ridiculous analogy. A lack of certainty doesn't suddenly make the whole thing a toss-up. We don't know if next season Alabama will be better than Ohio State, but that's trying to decide betwtan two great teams. We do know that both Ohio State and Alabama will be better than Concord and West Chester, which we know will both be mediocre (though pretty good as far as mediocrity goes).

The real problem with your argument though is what you do in light of the uncertainty. You're saying "We don't know for certain that it's going to be useless, therefor we ought to fully fund it." The far more rational approach would be to say "We don't have much reason to think it will be useful, so at this point it's not going to get much funding if any, so you'll basically just have to do this on your own time and if in a few years it does look like it's going somewhere, we'll provide funding for future research." The risk of it not going anywhere needs to be on the professor. He has the most information and full control over the effort he puts into it, so it only makes sense that he also bears the risk.

[Enrique Guerra-Pujol]

"Thou shall not misrepresent or exaggerate a person's argument in order to make such argument easier to attack" (the straw man fallacy)

[John Jacob]

"Legal scholarship is in a terrible state, with counter-intuitive incentives for faculty. Status comes with publishing, but more publishing means less teaching and interacting with fewer students. In the legal academy, second- and third-year law students select which law professors’ articles to publish; while my second and third years are brilliant, they cannot select for quality the same way experts would. But even if you think the student-run system is fine, the value of legal scholarship, which is rarely read, has its skeptics, among them Chief Justice John Roberts. Scholars at the University of Florida argue in a recent study that very few articles are cited for their ideas. This broken system is also subsidized disproportionately by the tuition dollars of poorer law students.

Questioning the value of legal scholarship is heresy inside the legal academy – which is why I am grateful that I have tenure. Law schools are run by the faculty for the faculty. A former colleague once put it like this: “If we could run this law school without students, this place would be perfect.” He happened to be the dean. Such a system is unlikely to be changed from within.

But while faculty cannot be terminated, their summer research stipends can be. Other disciplines require faculty to obtain external funding to support their work. Law schools should take a similar approach. For all who argue that legal scholarship has merit, let the market decide. This won’t solve all of a law school’s financial woes, but it could be a place to start right now. My 20 years as a legal academic causes me to predict that no serious change will occur until a cataclysmic event occurs. My prediction: In three years, a top law school will close. Then watch how quickly things change."

(http://www.washingtonpost.com/posteverything/wp/2015/03/09/law-schools-are-in-a-death-spiral-maybe-now-theyll-finally-change/)

[public interest lawyer]

I want to say something about the comparison between University law professors and University social science/humanities professors. The argument for law professors is that the job is the same in law schools as in those other academic departments, without any expectation that scholarship be justified by originality or utility. But two wrongs don't make a right. These other academic departments maintain the privileges of the tenured faculty by exploiting graduate students and adjuncts to teach classes they should be teaching themselves. The elite universities also can subsidize faculty privileges and cut tuition discounts from billion dollar endowments. Law schools can't use law students to teach their courses and are limited by the ABA in their use of adjuncts. So they have been raising tuition over the past two decades to levels as high as they can possibly go on the dubious logic that a legal education is priceless. It isn't a sustainable business model and it can't be justified by saying others are doing it too.