A couple of law professors at the University of Florida, Jeffrey Harrison and Amy Mashburn (neither of whom I know personally), recently posted a draft of a provocative paper about the topic. The paper reports the results of an empirical study which suggests, as I read it, that much or most legal scholarship does not influence the decisionmaking of judges; that most of the people who cite legal scholarship are other law professors; and that most of the time these other law professors choose which articles to cite based, not on the substance or merits of their ideas, but on the prestige of the journal (think Harvard Law Review) or of the author. The authors of the paper also briefly assess two potential justifications of legal scholarship -- that it produces "benefits" and that it is a "public good" in the economic sense -- and suggest reasons to doubt these justifications, based in part on the results of their empirical study. And they offer some suggestions for reform of the way legal scholarship typically is published and funded that they think might help make it more beneficial.
There is much to be said about the Harrison and Mashburn paper, some of which has already been said and lots of which I am not qualified to say. Rather than dig into the merits of the author's study and their normative arguments, however, I want to use their paper here primarily to sketch some background about the general topic -- the relationship between legal scholarship and legal education. At the end, I'll offer some tentative big-picture principles for assessing the topic, which I hope to support, refine, and test in subsequent posts.
First, some background for readers not intimately familiar with legal scholarship or legal education. Most American law schools are peculiar hybrids between trade schools and graduate schools in the liberal arts. Most law students attend law school -- at a high financial cost -- because they want to become practicing lawyers, and with very few exceptions it is the case that one must have a law degree (usually a JD -- juris doctor -- or a foreign equivalent) to practice law in the United States. So law schools train most of their students for careers in, if you will, a trade. Moreover, the vast majority of most law schools' operating expenses come from student tuition, meaning that if law schools did not offer what is perceived to be at least adequate training in the trade of being a lawyer, they would cease to exist.
At the same time, most American law professors -- the people doing most of the teaching in these law schools -- are more or less full-time academics, not full-time (or even part-time) lawyers. Here the exceptions are more numerous and more significant. Many "full-time" law professors also engage in extensive law practice, either pro bono or for paying clients. And every American law school of which I'm aware relies on many "adjunct," or part-time, professors to teach mostly specialized courses, most of whom are practicing lawyers or sitting judges. Still, the typical American law professor spends relatively little of her time actually practicing law, and many spend no time doing so. So the principal teachers of American law students -- most of whom want to be practicing lawyers -- are themselves not practicing lawyers in any real sense.
In some respects this seems silly. Why is American legal education structured this way? Shouldn't practicing-lawyer-wannabes be taught by actual practicing lawyers? Silly or not, it is probably unavoidable, or at least eminently understandable. Teaching and practicing law are not the same; they involve different sets of skills. It is difficult to become (and remain) very good at one while also becoming (and remaining) very good at the other. Part of the reason for this is time: busy practicing lawyers have limited time available that they can devote to other pursuits, like preparing a good lesson plan, keeping up with developments in pedagogy, and meeting with students. So it is natural that a professional class of law teachers would develop on a separate track from the professional class of lawyers -- even though most American law professors also have law degrees. (Indeed, this is true in other areas of education as well, so much so that it is unremarkable. Think of your high-school biology teacher. He or she probably was not an active professional biologist; does that seem strange to you? Probably not -- because it's easy to understand that the job of teaching biology to class after class of hormonal teenagers is itself a full-time job.)
Add to this the fact that law professors also have the opportunity to do something else that is difficult to accomplish while holding down a full-time practice, namely scholarship. Practicing lawyers have relatively little time to research and write about the law, and their need to uphold the interests of clients (actual and potential) limits the range of topics they can research and write about and the substance of what they can write about those topics. Full-time law professors typically are not subject to the latter limitation, and although theoretically they could be subject to the former limitation -- teaching and related activities conceivably could take up all their time -- in actuality most of them are not, for reasons I'll discuss later on. The opportunity to devote significant professional time to research and writing about interesting legal topics is what attracts many law professors away from practice and into legal education. Many law professors -- I count myself among them -- find it personally more rewarding to engage in deep intellectual exploration of intriguing legal issues than to (say) draft page-limited, client-driven court briefs or negotiate million-dollar contracts. And of course there are other attractions to the academic lifestyle, such as schedule flexibility and freedom from the worry that the client will phone at 4:55 on Friday afternoon with a problem that needs to be solved by Monday.
So it is understandable, and may have been inevitable, that American law schools would come to rely primarily on full-time legal academics to train the lawyer wannabes who pay the law schools' bills. And now we begin to see the faint outlines of the problem as it relates to legal scholarship. The outlines can be brought into clearer focus by adding some details to the picture.
The first detail is the relative dearth of external funding for legal scholarship. Medical schools (for example) also have full-time faculty members that spend a lot of time on research; but most of the funding from that research comes from outside sources -- the government, private foundations, industry. In contrast, relatively little funding for legal research comes from outside sources (that is, sources outside the law school itself). The reasons for this are complex, and I'm not sure I fully understand them, but they probably include the facts that the results of legal scholarship rarely have an obvious cash value, and that legal scholarship often (indeed usually) is explicitly normative -- arguing for or against a particular state of affairs -- rather than descriptive (like medical research), thus making the dangers of funding by private industry (law firms, clients) too salient.
Bottom line, then: legal scholarship has to be funded primarily by law schools themselves, which means from tuition dollars. It's important to note that legal scholarship is not nearly as expensive as, say, medical research; it rarely requires outlays for expensive equipment and support personnel. The cost of legal scholarship is, if you will, primarily opportunity cost: a law professor who is taking her paycheck in part to do legal scholarship is not spending that portion of her time doing something else (say, teaching). Still, that cost might be rather high, relatively speaking; Harrison and Mashburn estimate it at 25% of faculty salaries, which would work out to well over $1 million per year at most law schools. And this cost, remember, is supported at most law schools almost entirely by student tuition income.
The second detail is the peculiarity -- some would say pathology -- of how the activity of legal scholarship has developed among American law schools. American legal scholarship is strange in so many ways that it's hard to know where to start. It is unusual in the typical length of the units of legal scholarship, law-review articles, which usually run between 15,000 and 30,000 words and are heavily footnoted. It is unusual in the review and editing process for these articles, which with a few exceptions is performed by law students. (So second- and third-year law students are deciding whether to publish work written by experts in the relevant fields.) And it is unusual in the number of journals available in which to publish: each of the roughly 200 U.S. law schools has at least two journals, and many have quite a few more, so that the total number of student-edited law journals is probably at least 500 (I haven't actually counted), most of which publish multiple issues each year and include between two and five articles in each issue.
These unusual features converge, and interact with other dynamics in the legal academy, to create what we might politely call "issues." There are thousands of "spots" in law reviews that have to be filled each year, creating a strong incentive for students at many journals to publish bad scholarship. (The students don't need to worry about selling the journals they edit -- no one buys them; they just want to get credit for an extracurricular activity.) Add to this the fact that the student editors are, well, students, and thus not always in the best position to tell the bad scholarship from the good. And so lots of bad law review articles get published every year.
Why do law professors keep cranking this stuff out for students to publish in journals that few people will read? For one thing, publication in some law reviews -- the elite ones, roughly the top 20 or 30 -- is quite prestigious; it can bring professional recognition to law professors and can enhance the reputation of their schools. Law professors care about their professional recognition because it figures into institutional decisions on things like tenure and promotion (and also because law professors, like most people and perhaps more than many, like to be well-regarded). Law schools care about their reputations because rankings like that in U.S. News & World Report typically weigh "reputation" heavily in their formulas, and prospective tuition-paying law students (and donation-wielding alums) typically pay close attention to the rankings. Partly for this latter reason, publication of law-review articles is required for tenure and promotion at most law schools. (Why the law-review article, rather than some other form of legal scholarship, became the base unit for assessment of scholarship in the American legal academy is a mystery to me. I suspect the accidents of history and the outsized influence of the Harvard Law Review as legal education developed in the early 20th century have something to do with it. But I digress.)
Meanwhile, the length of law-review articles has its own perverse effects. It is, frankly, difficult to read all the way through most 25,000-word, 300-footnote law-review articles. This creates an incentive for busy student editors of law journals to rely, not on the actual quality of a submission (which they're unlikely to be well-suited to judge anyway), but on external cues about quality, like the prestige of the author or of her home institution or alma mater. It also deters the people who evaluate law professors' scholarship for tenure, promotion, and other purposes -- chiefly other law professors -- from carefully reading that actual scholarship, leading them to rely on many of these same imperfect external cues. And it undoubtedly deters members of the potential audience for legal scholarship -- practicing lawyers, sitting judges, policymakers -- from paying much attention to that scholarship. (Most of them have better things to do than wade through 300 footnotes.)
All of which brings us to the third detail, the one that motivates articles like Harrison and Mashburn's and that animates the much-larger, introspective discussion of which that article (and this blog post) are part. American legal education is in the midst of a financial crisis that may be unprecedented in its history. The number of high-paying jobs for lawyers has gone way down in the past decade or so, while law-school tuition has climbed, resulting in a steep decline in applicants to law schools, resulting in a decline in law-school enrollments, resulting in a decline in tuition revenues and thus in law-school budgets. So law schools have to compete for students to an extent that they have not had to do before. And not for just any students, but for good students -- the ones capable of doing well in law school, graduating, passing the bar, and succeeding in practice. But law schools have less money with which to compete for these students -- less money for scholarships, and less money to develop innovative educational programs that can prepare students for the changing legal market.
Which brings us -- whew! -- to the debate over the role of legal scholarship in legal education. Legal scholarship is an obvious target in the current climate, because (a) it costs quit a bit of money (mostly in the form of opportunity cost), and (b) its benefits (to society, to law students, to practicing lawyers) typically are not salient. Why not eliminate, or substantially reduce, law schools' support for legal scholarship (by, e.g., reducing law professors' salaries, or increasing their teaching loads)? This is the rather obvious question that triggers the rather predictable debate.
So let me bring this lengthy post to a close by suggesting a handful (eight at the moment) of basic principles (really propositions at this point) that I think should frame this debate going forward. I hope to further develop these principles in future posts -- and I reserve the right to amend or supplement them liberally.
- Legal scholarship should not continue to be financially supported -- in this financial climate or in any other -- if it does not actually generate benefits sufficient to justify that support.
- To the greatest extent possible, these benefits (if they exist) should be a matter of empirical demonstration and normative argument rather than just taken on faith (or dismissed out of hand).
- However, it is likely that some potential benefits of legal scholarship will be difficult to measure empirically, or will only be discernible well after the fact (e.g., as scholarly ideas trickle down into judicial opinions and gradually influence the law).
- Legal scholarship done by law-school faculty (as compared to that done by practicing lawyers and judges on the one hand, or by faculty in other disciplines -- economics, philosophy, political science -- on the other) is likely to have value -- to produce benefits -- that are distinctive, perhaps unique. Law-school faculty do not have to worry about client interests or judicial impartiality. And yet their legal training gives them a perspective lacking in most scholarship about the law coming from other disciplines.
- For reasons suggested by principles 3 and 4, external support from industry or government is unlikely to successfully fund more than a small amount of legal scholarship. At least some benefits of legal scholarship are likely to be what economists call "public goods." They are non-rivalrous: one person's use of them does not diminish the amount available for others. And (most importantly for my point here) they are non-excludable: anyone can enjoy them without paying for them. This last feature makes it difficult to raise industry (private) support for legal scholarship. That difficulty is enhanced by the chiefly normative nature of legal scholarship, which prevents ethical scholars from relying heavily on industry funding. While government or nonprofit funding is a more promising avenue, the lack of immediate, demonstrable "on the ground" benefits of much legal scholarship is an obstacle to significant development of these sources.
- One type of benefit of legal scholarship is its capacity to function as a critical or reforming tool. Law professors are free to criticize the law and legal systems, not just describe them. This informed critique is (or can be) a public good, despite its typical lack of direct benefit to judges and lawyers, who typically (though not always) are concerned with what the law is (or can be said to be), not with what it should or could be.
- Another type of benefit of legal scholarship is its usefulness in educating prospective lawyers. Legal scholarship can be helpful in providing law students with an overview of a particular legal subject or issue, and in familiarizing them with competing arguments about particular issues and with the concept of good legal arguments in general. It also can be helpful to teachers in developing new ideas, new ways of thinking, new ways of communicating old ideas -- all of which can be brought to bear in the classroom.
- A significant reduction in support for legal scholarship would change the makeup of the legal academy. Not necessarily for the worse, but change would be inevitable. Many law professors are attracted to teaching in part because of the opportunity to do scholarship. If that opportunity shrinks or disappears, some (perhaps many) of tomorrow's potential law professors will choose to do other things with their lives. Some likely results are (re-)stratification in the legal academy -- with the elite law schools monopolizing legal scholarship, as was once the case -- and an increasing reliance by many law schools on faculty who spend significant time practicing law in addition to their teaching duties.
ADDENDUM: And a ninth principle/proposition occurs to me:
9. Legal scholarship must change if it is going to survive. I think it's likely that the changes will be in the direction of shorter works, more immediacy, engagement with a broader audience, and more attention to real-world application, although not all successful examples of legal scholarship will have to push all of these buttons. There may also be a trend in the direction of more peer review, which may pose some tension with some of these other developments. In any event, I suspect the reign of the student-edited law review is nearing its end.
As I said, stay tuned.
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