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Friday, February 14, 2014

Funding Legal Research: Suggestions for Reform

I thought I'd wrap up my series on funding legal scholarship with some suggestions for reform.  As I laid out yesterday, the principle behind these reforms is that legal academia should move from school- & salary-based funding to field- and grant-based funding.  I don't mean to argue that we should move entirely to a new system, even if such a dramatic change were feasible.  Instead, this is a set of new approaches to align the system more appropriately:

  • Do not pay profs to produce scholarship if they don't produce scholarship.  There's an inherent contradiction: law profs are hired and judged on their scholarship, but post-tenure they will not get fired for failing to write.  The solution, I think, is that we can't expect all professors to write post-tenure, but we shouldn't pay them for writing that they are not doing.  There are a variety of ways of restructuring salaries to tie scholarship dollars to actual production, some of which I discuss below.  Ideally, a school would cut back all salaries to some baseline "competent teaching & service" level, and then build up from there (each year) for superior teaching, committee work, and scholarship.  But rather than maintaining the fiction that all law profs produce scholarship, we should acknowledge that not all do and alter compensation accordingly.  This change would free up funds to use for some of the reforms discussed below.
  • Schools should provide specific pay and/or benefits for scholarly production.  Right now, most schools likely tie some portion of yearly salary increases to scholarship.  Two problems: these increases are locked in over time, and the amount of merit pay avaliable is often unrelated to the quality of scholarship produced.  Moving towards a grant-based system would allow schools to reward specific production, but then not lock it in.  If a school is pressed for funds, it could also restructure teaching and/or service  packages so that productive scholars have reduced course or service loads to "compensate" for that productivity.  But the reduced loads would be year-to-year, rather than offered to all faculty or to a permanently blessed set of faculty.
  • Law reviews should pay authors for their works.  I've always thought that it's a nice professional touch that law review authors provide their works for free.  But I think the incentives would work better throughout the system if the reviews paid at least some small amount to the authors.  Under the current system, the prestige is seen as enough -- in fact, I'm sure many profs would pay money to get in certain reviews.  But schools should care not only about the production of their own scholars, but also about the quality of articles published in their review.  If reviews paid, that would take off some of the pressure for individual schools to pay for placements.
  • AALS should create a grant fund for scholarship.  Dan Rodriguez and Judith Areen, I'm talking to you!  An AALS fund which provided grants to schools and scholars for legal scholarship would provide a number of tangible benefits: it would incentivize scholarship with dollars, rather than just reputation; it would provide peer review at the beginning of the process, as well as connections and publicity for new projects; it would take some of the funding pressure off of individual schools; and it would give a concrete expression to AALS's mission to encourage the production of quality research.  For those of you imagining an AALS secretariat with massive power to disburse funds to various schools, I'm thinking of starting small.  So maybe start with 10 grants of $20,000 apiece?  The grant money would go to the schools to fund a portion the professor's salary as well as any additional research expenses.  It's too much to expect that most law profs can run out and be competitive for outside grants.  But AALS can encourage this culture by starting a small grant-funding arm that provides seed money, at least, for some set of scholarly projects.
  • AALS should advocate for more grant funding from interdisciplinary grant-funders.  Individual legal scholars have a tougher road to hoe when applying to the NSF, NIH, or NEH, since they are not part of the traditional disciplines that get funding from these places.  If AALS makes grant-funding a priority, it could work to make foundations and government agencies more receptive to law school applications.  AALS could also host a grant-funding resource center for law profs looking to understand and utilize grants.
  • The ABA should create a grant fund or funds for scholarship. Are legal professors spending too much time on Bulgarian evidentiary questions and not enough on common-law contract quandaries?  The ABA could create a funding arm to provide grants for legal scholarship that deals more closely with doctrinal issues.  Or ABA sections could each create small grant-funding programs for subject-specific scholarship.  This may already be happening at some small level, in the form of awards or conference funding.  But grant-funding would recognize a more tangible role for the bar in encouraging the production of legal scholarship.

I know there are solid arguments against many of these proposals.  There's the scale issue: these reforms could range from being so small as to be meaningless, to so large as to be frightening in their power.  The bigger the funder, the more power that funder would have to play politics or press an ideological or commercial agenda.  At the very least, many of these reforms would impose a layer of bureaucracy on already busy folks.    Our current model is pretty independent and flexible.  I'm just saying we should trade some of that independence for some outside review and accountability.

 Law schools will continue to care about the scholarship that their faculty produces and will compete on scholarly reputation.  But I think legal academia as a whole has to think about incentivizing scholarship as a whole.  And we could all fund legal scholarship more efficiently.  I'd be interested in your thoughts about these proposals.

Posted by Matt Bodie on February 14, 2014 at 01:00 PM in Life of Law Schools | Permalink

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Couldn't you achieve a lot of these goals just by making summer research grants larger relative to overall salary and then by really enforcing standards for those grants?

More broadly, it seems like the big problem with the current system is incentives for the Dean. A lot of Deans are there for the short-term, and they want to keep the faculty happy. They often do this with the Lake Wobegon strategy of saying that everyone is fantastic, and no one is more fantastic than anyone else. For the Dean, drawing distinctions creates headaches -- especially when the distinctions are public. The lack of distinctions removes incentives to produce, but the need to draw distinctions creates a lot of headaches for the Dean.

Posted by: Orin Kerr | Feb 14, 2014 2:17:23 PM

(Oh, and I should add that my comment above is not meant to suggest that we should change incentives for the Dean. I take those as fixed. Rather, if reforms are needed, reforms that recognize decanal incentives are important.)

Posted by: Orin Kerr | Feb 14, 2014 2:19:15 PM

I like your ideas about getting the AALS and the ABA more involved in grant-funding and finding. I think a lot of schools give release time for research in various ways, but I think the opposite might also be good. So, if someone is at a point in their career where she doesn't have anything she wants to write about/writers block/whatever, how about she teach 4 instead of 3 classes? Everyone may be happier with this system. With a system that assume that everyone is going to publish all the time, those that don't probably aren't that happy because they feel like a shirker. They avoid the "what are you working on" questions and maybe just avoid the building a lot. This way, everyone is contributing what they are supposed to and happier.

Posted by: Christine Hurt | Feb 14, 2014 2:39:57 PM

I agree with Orin that relatively fixed salaries not only make life easier for the Dean, but they also cut down significantly on faculty politics. Henry Hansmann's work focuses on the importance of homogeneity to efficient governance, and if all profs were doing relatively the same job, it'd be easier just to have lockstep pay and not draw distinctions. So I guess part of one's evaluation of my proposals will be whether one thinks that most profs are doing relatively the same job.

And it's a desire to make deans' lives easier that is driving my push for more outside funding. A lot of universities view summer grants with suspicion, since they don't really look like traditional grant-funding. Making those programs more rigorously enforced would help. But if research is bringing money in from the outside, whether it be AALS, ABA, foundations, or government agencies, it's a lot easier for deans and law schools to argue the importance of research to university administration.

Posted by: Matt Bodie | Feb 14, 2014 4:25:58 PM

Your first post suggested that students and tax payers ultimately pay for legal scholarship. Whether or not professors are fulfilling their legal and institutional duties about producing scholarship, we have far more legal scholarship than anyone wants to pay for. The only people currently paying for it are the people who cannot avoid paying for it. That cannot change. Your proposals do not address that harsh reality.

Posted by: ekaterina | Feb 14, 2014 6:52:30 PM

I see at least four issues bubbling under your provocative posts, Matt, with one or two taking the lead at different times: the cost of research, faculty workload and pay distribution, rule enforcement (or management), and research quality. Each one is, as you've noted, highly contested, and the status quo is deeply entrenched. While you've raised a lot of really important and interesting issues, I don't think they lead or even really support your most creative solutions about funding.

Ultimately, the problems of costs and equity are management problems, and raise issues that you (and, above, Orin, and, elsewhere, Christine) raised: solving them requires stronger rules more strictly enforced, which is harder than it sounds and can have all kinds of unintended consequences for administrators to implement. Law school administration is a fairly thankless, though well-compensated, task, and one that appears to be having a difficult time attracting talent. Enacting and enforcing strict standards will also raise the problem of evaluation: what are the quantitative and qualitative metrics an administration should use? This requires careful, brave, and legitimate administrators, qualities that are in short supply and which there is little incentive to develop in the contemporary university.

Nevertheless, I'm skeptical of the idea that external institutions (AALS or the ABA, or the NSF, or the myriad of private sources of funding) can either ensure or improve research quality as an abstract value. I think the rather low intellectual quality of the annual conference that AALS holds at a very high expense to attendees and member schools suggests that's not where we should look -- and the extent to which AALS almost seems to disavow using that event for serious scholarship (outside of a few small competitions) suggests that they don't want to engage in that project. The ABA is already a major publisher of law-related materials, and while much of it is good and useful, it's not really scholarship as academics would define it. It's not clear it would have the interest or incentive to sponsor scholarship that would be recognized outside the profession and inside the university as scholarly.

It strikes me that the single best way to move towards higher quality of scholarship is for law faculties to seize the reins of law reviews or to more widely and programmatically start new, field-specific law reviews (like most other disciplines have) and to engage in serious blind, peer-review. Blind peer review is a very imperfect system, but it would be marginally better than the one we have, and those margins can push the relevance and quality of scholarship upwards. I think that project would have to begin with the leadership of the top law schools, because they have the reputation, resources, and size of faculties to start changing the scholarly institutions of the legal academy. But those are the institutions and faculties that have the least to gain and the most to lose from any significant change to the status quo.

Posted by: Mark Fenster | Feb 14, 2014 10:36:15 PM

Kind of an aside, but this series focuses on legal scholarship after tenure. One of the problems with Law Schools is that the vast majority tenure everyone, creating lifetime contracts for many people who never displayed any likelihood of an active scholarly career. If we assume that scholarship is part of the expected duties of law professors (I realize some disagree with that but just about every school's current tenure standards would expect as much), then schools should carefully scrutinize scholarship, and commitment, before affording a lifetime contract. With some exceptions, most of the law faculty who never write after tenure provided pretty indicators before tenure.

Posted by: MLS | Feb 15, 2014 9:25:52 AM

I agree with MLS. The most effective way to generate scholarship is to hire people who love to write scholarship. Trying to encourage scholarship after a person is already tenured is going to have only a limited impact.

Posted by: Orin Kerr | Feb 15, 2014 6:56:48 PM

In the real world the volume and quality of legal scholarship will decline from a number of reasons. First, the people most motivated to publish are those trying to get tenure. But most law schools have to radically reduce their hiring of tenure track faculty due to the decline in law school applications. Declining enrollments will also force most law schools to severely cut back on granting tenure. While this will lead some tenure track faculty to work harder to overcome the higher bar, many others will give up.

The arguments for external funding seem to completely ignore the strained nature of most law schools' financing. Certainly one cannot seriously expect a law school like Saint Louis University's, which has seen its entering class fall by over 50% in the last few years, to contribute its dwindling tuition revenue to a third party to be doled out for research.

As for funding from gov't agencies like the NIH or NSF, they will want to know what the money is needed for and why the research is important. Unlike other academics, legal academics will have problems answering these questions. People in the natural sciences can explain money is needed to buy equipment for their labs and pay the grad students and post docs who work there. Legal research doesn't have these costs. You need a quiet place to work and Westlaw but the university already provides that. As for the value of their research, a may 10% of the profession will be able to explain why their work has value to society. But the attitude toward most legal scholarship by practitioners and judges suggests it won't be much more than that. If you disagree, please try to provide some facts to back up your claims such as the percentage of law review articles that are cited by federal and state judges in their opinions.

Posted by: matt | Feb 16, 2014 2:15:06 PM

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