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Monday, February 10, 2014

Funding Legal Scholarship: The Traditional Law School Model

This is first in a series of posts about how we fund the production of legal scholarship.  To begin, a definitional move is in order: what exactly is legal scholarship?  For purposes of this series, I want to be broad.  I'll include any published research on the theory, doctrine, or practice of law, whether it be an academic book, a hornbook, a law review article, or an interdisciplinary or other-disciplinary piece that focuses on law in some respect.  Legal scholarship is original research that attempts to contribute to our understandings of legal doctrine, human behavior in the context of law, or other aspects of our legal system.  I'd draw a line between the research itself and the promotion of the research, so lengthy docrinal bar journal articles can be scholarship, but op-eds and blog posts are not.  I don't think amicus briefs are, either, although I suppose a "Brandeis brief" could be.  Happy to discuss this definition in the comments.  In addition, I should note that I am leaving out legal scholarship that is produced by students as well as practitioners, at least for today.

So how is legal scholarship funded?  I think we can separate the creation of that scholarship -- the research and writing -- from the publication of it.  To take publication first, law schools pay a fair amount of the publication costs of legal scholarship, since they fund law reviews.  Law reviews do receive revenues from subscribers (generally other law schools) and from Westlaw, LexisNexis, and Hein Online for electronic rights.  But my assumption is that most law reviews are not self-sustaining.  Reviews also usually have some level of school-provided support staff, and publishers are paid by the review/school as well.  However, law reviews do receive a lot of "free" labor.  Students are generally not paid to either produce or publish legal scholarship, although many students receive school credit (which they pay for) and some receive bagels

Outside of law reviews, legal scholarship is published in bar journals, which are funded by the affiliated bar, or by academic presses, which are likely closer to self-sustaining but also may receive university support.  (Here's a recent AAUP report on the finances of academic presses.)  The current X factor is whether "publishing" through SSRN and/or Bepress will ever become independently acceptable.  As of now, these databases are repositories for papers that generally hope to be published, are in the process of being published, or are already published elsewhere.  SSRN and Bepress are both private companies.

On the creation side, law schools pay their own professors to write scholarship.  But this deserves a lengthier breakdown.  Salary hinges on a professor fulfilling her job requirements, and those requirements are generally described as scholarship, teaching, and service.  Most schools require a professor to write three or more articles to obtain tenure.  However, after that, the scholarship "requirement" is enforced much more spottily.  Some schools may attribute the bulk of any merit-based salary increases to scholarly production.  However, my guess is that there is a wide range, both between the amount of merit raises awarded from year to year, and the percentage of those awards that are based solely on scholarship.  At most schools (if not all?), professors cannot be fired post-tenure for failing to produce any scholarship.  And given the salience of teaching and service, I would imagine that a very small percentage of post-tenure salary rides solely on the professor's production of scholarship.

Many schools also have direct grants for scholarship.  For example, summer research grants, which pay professors between $5,000 and $20,000 to produce an article over the summer, are an apparently direct payment for scholarship.  A couple of provisos, however: (1) some schools have only lax enforcement mechanisms to ensure that an article was actually produced and published; and (2) the grant is limited to one piece, so any article after the first does not receive specific funding.  In addition to summer research stipends, some schools provide bonuses for high-ranking journal placements, but these are generally less than four figures.

Larry Cunningham has opined that a highly-placed law review article can be worth $100,000, as has Richard Neumann.  But I have problems with their math.  Cunningham argues that the award is not only worth the $12,500-$20,000 summer grant, but also the 1-3% raise that the professor receives for having written the article, which is then made a part of base pay for the rest of the person's career.  Cunningham's math, however, not only assumes a relatively high summer grant, but also a high salary: $200,000 for a mid-career scholar, or $250,000 for a senior scholar.  Maybe I am naive or in the dark, but those salaries seem pretty high for most law schools.  Cunningham admits that a junior scholar getting $100,000 and a 2% raise would only get about $35,000 from salary increases over a lifetime.  And Cunningham also has to assume: (1) there are no salary freezes in effect the year of publication, and (2) the 2% raise is solely attributable to that one article.

Richard Neumann's calculations seem even more problematic.  He assumes a professor at a high-ranking school who spends 30-50% of her time producing one article per year.  Thus, in his view, 30-50% of the person's salary and benefits go to that article.  So if the prof produces three articles a year, they cost $33,333 apiece, and if she writes one article in five years, it's worth $500,000?   You can see the difficulty.  Since professors must teach and must perform committee assignments, but generally need not produce any scholarship post-tenure, their salary cannot be attributed to scholarship unless it is directly tied to such scholarship.  I have a similar problem with Brian Tamanaha's claim that the reduction in teaching loads is an allocation of funds towards scholarship.  That may be the intent, but if the school does not require faculty to write more, it's just an allocation of funds to freeing up faculty time.

The real X factor here is the lateral market.  A productive professor can either secure a higher-paying salary from another school, or may be able to use a higher-paying offer to get a substantial raise at her current school.  Again, internal school policies are so varied (even within the school!) that it's hard to know how much to attribute to scholarship.  However, it is generally true that professors at higher-ranking schools are paid better, teach less, and produce more scholarship.  Thus, higher-ranking schools attribute more of their salary to scholarship (past, present, and/or future).

Beyond paying professors to produce legal scholarship, schools also fund resources for the production of the scholarship.  So schools pay their own students to act as research assistants, they pay for staff to facilitate professors' work (which includes scholarship), and they pay for libraries and data sets that are necessary to the research.  Libraries also serve students and the public, but at least a substantial portion of their expenses are designed to facilitate research.

This overview of funding on the creation side is not complete.  It leaves out (a) grant-funding for certain legal research projects and (b) royalities for academic books, hornbooks, and other compensated publication opportunities.  These two models (grants and sales) will be discussed on Tuesday and Wednesday.  But (a) is still relatively unusual in the legal academy, and even book-publishing professors do not receive a significant amount from (b), as non-teaching academic titles do not usually offer substantial royalties.

So how are we funding legal scholarship?  As a general matter, schools are paying their own professors to research and write legal scholarship, they manage their own students in editing it, and they pay a publisher to publish it.  Most law schools are funded primarily by student tuition, although state funds and alumni giving supplement to varying degrees.  So students are funding at least a big chunk of legal scholarship.  To the extent the federal government is funding legal education through IBR, it too is also a source of funding for scholarship.  

 Most of this overview will be familiar to the seasoned readers of PrawfsBlawg.  And most will be familiar with the weaknesses of this model, particularly in a time of law school belt-tightening.  From a management perspective, schools want to provide the best (or most market-desirable) education possible for the lowest cost.  Many schools may look upon scholarship as a "luxury good" that the school can no longer afford, especially when compared with teaching and service.  There are, though, two mitigating factors against this trend: (1) Prestige is still important (or perhaps more important) to the market desirability of the education being provided, and the higher-ranked schools have stronger scholarly reputations, almost uniformly.  So a school that cuts its commitment to scholarship could see its reputation fall, which could decrease the desirability of its educational services.  (2) Many schools use law reviews are important components of their education and curriculum, and cutting them would require replacing them with course offerings that may be just as or more expensive.

Despite these mitigating factors, however, there are a strong set of forces pushing schools to decrease their funding for their faculty's scholarly production: 

  • A smaller applicant pool, resulting in smaller class sizes;
  • A need to offer scholarships to maintain a strong student body as to LSAT scores and GPAs;
  • An increasing emphasis on course offerings emphasizing practice-readiness and skills training, often offered by non-research faculty; and
  • A skepticism from members of the bench, bar, and academy about the value of legal scholarship.

So it seems like a good time to think about other options, other systems for scholarship funding.  We'll turn to grant-funding tomorrow. 

Posted by Matt Bodie on February 10, 2014 at 11:36 AM in Life of Law Schools | Permalink

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Looking forward to the rest of the series. A brief note on additional sources of government funding. The average private university gets about 17 % of its budget from private gifts, of which about 2/5 is from government matching grants (i.e., tax deductions). Endowment income and retained earnings are exempt from tax, and in most states so is the value of the school's real estate. Public schools, of course, may also have direct appropriations.

I say this not to be picayune, but because I think there are genuine tensions between the public goods model of education on which these subsidies are premised and the private goods model that seems to underlie some recent criticism of legal scholarship. So it's worth the reminder, IMHO, that the public has a substantial interest at stake.

Posted by: BDG | Feb 10, 2014 12:07:58 PM

"Since professors must teach and must perform committee assignments, but generally need not produce any scholarship post-tenure, their salary cannot be attributed to scholarship unless it is directly tied to such scholarship. I have a similar problem with Brian Tamanaha's claim that the reduction in teaching loads is an allocation of funds towards scholarship. That may be the intent, but if the school does not require faculty to write more, it's just an allocation of funds to freeing up faculty time."

Matt,

You go from the observation that tenured faculty won't be fired for not producing scholarship (perhaps true), to the assertion that they "need not produce any scholarship" (false: they officially do "need" to, but are failing their obligation), to the assertion that work time explicitly compensated for the production of scholarship is not money spent on scholarship because some professors are not writing any (false: they are receiving compensation for scholarship that is undeserved).

It strikes me as odd that your refusal to count this as a part of the cost of scholarship is based entirely on professors who are failing to do their job. If we are paid to write scholarship, then that portion of our pay should be counted as part of the cost of scholarship. Your way of looking at it suggests that this compensation is to give us free time that we can use any way we want to.

No law school would agree with this.

Brian

Posted by: Brian Tamanaha | Feb 10, 2014 12:15:17 PM

In Matt's formulation, one would have to say that there is no cost for lottery tickets that don't pay off.

Posted by: Steven Lubet | Feb 10, 2014 1:34:29 PM

Brian & Steven:

I don't think we're as far apart as you are making us sound. Let's say that Jill is at home from college for the summer, and her parents make her a deal: we'll pay you to watch your younger brother and to write the great American novel. At the end of the summer, Jill has watched her brother as required but written nothing. How is she paid? Does she get paid the same amount, regardless of what she has written? If so, it's hard to say she was paid to write a novel, even though that was the deal she and her parents struck. And what happens next year?

So I think we are having a bit of a Oliver Wendell Holmes moment here: if professors "need" to produce scholarship, but then suffer little to no professional consequences for failing to do so, is scholarship really a job requirement? I would say no.

Of course, a lot of professors produce scholarship, and as laid out in the piece, there are a variety of mechanisms that law schools can use to fund such scholarship, both direct and indirect. And I'm leaving aside the "utility" one gets from influencing one's peers, getting invited to conferences, and other professional recognition. But in terms of funding, if a law school paid 10 professors to teach, serve on committees, and write, and the professors taught and served on committees but did not write, how much scholarship has been funded? Sure, the law school has bought the lottery tickets, but were these smart investments, especially if the lottery has no obligation to pay out? So I'm not there yet, but part of series will discuss the fact that there is not as much accountability in the funding of legal scholarship as there could be, or as there is in other disciplines. I think your comments support my claim, rather than disagreeing with it.

Or maybe you disagree empirically, and think that much more of salary and other pay to profs is in fact dependent on scholarly production. And this may be true at many schools. I cannot really make an empirical claim, because I don't have the data. To the extent I have seen numbers from high-ranked public schools, it does look like a fair amount of salary is based on past scholarly production.

Matt

Posted by: Matt Bodie | Feb 10, 2014 3:15:42 PM

Let's say that Professors A, B, and C are employed at Law School, and each one is paid $50,000 to produce scholarship. Alas, only Professor A delivers. How much has Law School paid for scholarship?

Let's say that the United States pays $7.9 billion annually to fund the Coast Guard, but there are no attacks on our shores. How much have we paid for coastal defense?

The other point you are missing, Matt, is that post-tenure salary is at least partially a residual payment for pre-tenure scholarship.

Posted by: Steven Lubet | Feb 10, 2014 3:39:00 PM

If you do not in some way, immediately or over time, concretely link funds to production, then the connection between the two will be attenuated and ultimately lost. Compare two summer research programs:

- School A pays each faculty member $10,000 for summer research, but has no production requirement, and offers the deal to all faculty regardless of past production.

- School B offers summer research grants only to those professors who propose a specific project and have met all requirements for past summer grants, meaning they have produced published research for each grant received. $5,000 is payable at the time of the grant, and $5,000 is payable upon publication of the research.

Both of these programs may say they fund professorial research, but only School B has a credible link between the program and production. School A is simply paying its faculty an extra $10,000.

I agree with your point about post-tenure salary -- and that applies as well to the lateral market's effects on salary. But I confess I don't understand the Coast Guard example.

Posted by: Matt Bodie | Feb 10, 2014 4:03:55 PM

Matt,

Tenured law professors have three core duties (as stated in bylaws and in ABA and AALS regs): scholarship, teaching, and service. We are paid to do all three. You are suggesting that we only have the latter two duties because schools don't fire professors who fail to write.

Holmes recognized the difference between a right or obligation and the chance someone will bring legal action to enforce it. You are using the low probability of the latter to claim that professors do not have an obligation to write--and therefore are not paid to write. Anything we do outside of teaching and service, by your reasoning, is just compensated "free time." This does not follow.

To see why, imagine what would happen if a law school threatened to fire "for cause" a tenured law professor who has not written in the last 5 to 10 years. You are right that this has seldom occurred in the past, but do not assume it is non-existent (rather than quietly settled to avoid embarrassment). And it is certainly possible in the future given current financial pressures. A law school in this situation would have a very strong case for legal termination. That is why your position is wrong.

Again, I'm surprised you are claiming that we are not paid to engage in scholarship, since we all understand that this is a part of our job description. (Tenure is designed to protect our freedom to write, not our freedom to not write.) The many legal educators who over the past few decades advocated lower teaching loads invariably justified this reduction as a means to engage in more scholarship--not for more "free time." We cannot have a frank discussion of the cost and funding of legal scholarship if we deny this.

Brian


Posted by: Brian Tamanaha | Feb 10, 2014 4:11:19 PM

I agree it's important to have a frank discussion, but I think you are focusing on law-school rhetoric rather than actual practice. If you think a tenured professor can be fired for failing to write, and/or that schools can credibly threaten to fire for failing to write, then scholarship comes under the general job requirements, and some portion of undifferentiated salary can be attributed to scholarship. But I haven't heard of any schools doing this, not even the tippy-top schools. If a prof refuses to teach, they're out the door immediately. But if they refuse to write . . . .

There may be big differences in salary at some schools based on production, and those differences would grow even larger over time. But if you combine no enforcement of the writing requirement with relatively flat or seniority-based salary structures, then it's hard for me to see how the prof is being paid for scholarship (as opposed to teaching and service). And my sense is that this combo is the reality at many schools. But since it's an empirical question, I am happy to be proven wrong.

Posted by: Matt Bodie | Feb 10, 2014 5:38:05 PM

The Coast Guard example was intended to illustrate the difference between aggregate cost and utilization of resources.

Or we could put it another way: waste is still an element of cost.

Posted by: Steven Lubet | Feb 10, 2014 6:31:31 PM

It would be interesting to ask tenured law professors, "Does your job oblige you to produce legal scholarship? And if so, how much are you required to produce?" I suspect that opinion would be divided on the first question, and that the second question would persuade some who answered 'yes' to the 1st question to change their answers to 'no.'

More broadly, on the issue of how we fund legal scholarship. I tend to think the answer is that we fund professorships and try to fill them with people who are inclined by their nature to produce legal scholarship. The process of entry-level hiring and the tenure process are supposed to screen candidates ex ante so that the ones who make it through are folks who produce because they enjoy it and/or they're neurotic workaholics. Ex post efforts to encourage those who have already made it through to write more are only a piece of the puzzle, and perhaps not the most important piece.

Posted by: Orin Kerr | Feb 10, 2014 6:34:00 PM

I think Matt's right on this. In the vast majority of cases salaries today are being paid for teaching and maybe service. What would happen if a lower-ranked school announced it no longer cared about scholarship? It would still take years to reduce salary expenses through attrition despite the fact that no scholarship was being produce. I’d concede that any decision to hire faculty in order to lower loads and facilitate writing would count as a subsidization of scholarship. But I don’t think that the vast majority of hiring in recent years was really based on that thinking, notwithstanding Brian's claims above.

Posted by: anon | Feb 10, 2014 6:36:55 PM

I wonder whether the salary difference between a tenure-track faculty member and a nontenure-track teacher (who also performs service) would help determine the cost of scholarship? Or at least the cost of hoped for scholarship (as I am hearing you say that much of it fails to materialize)?

Posted by: Kristen | Feb 10, 2014 7:49:43 PM

Anon,

A generation ago, in to the 1960s and 1970s, it was normal for law professors to teach 14-16 credits. This was reduced to the current 9-12 credit range explicitly to increase scholarship.

For more recent arguments linking reduced teaching loads to scholarship:

http://www.theconglomerate.org/2005/04/law_professor_t.html

("The usual rationale for lighter teaching loads is that they allow professors more time for scholarship.")

http://www.concurringopinions.com/archives/2008/07/law_professor_d.html

http://www.thefacultylounge.org/2011/01/opting-in-to-a-reduced-teaching-load-for-increased-faculty-productivity.html

Brian

Posted by: Brian Tamanaha | Feb 10, 2014 8:42:59 PM

Brian,

I don't dispute that increasing scholarship production is given as an ex post rationale for hiring additional faculty. But I'd suggest that "promoting scholarship by lowering teaching loads for existing faculty" isn't among the top 10 reasons that any dean or faculty member actually has when they choose to hire. Do you disagree based on your experience with real-time hiring decisions?

Posted by: anon | Feb 10, 2014 9:00:56 PM

Anon,

In my experience on multiple appointment committees, scholarly potential is the primary criterion for hiring, and has been for the last 15 years at least. This is the conventional wisdom on "how to get a law professor job," and explains why law schools hire VAPs and JD/PhDs over lawyers from practice.

This hiring priority would be perverse if we are not actually paid to produce scholarship, as you and Matt apparently contend.

I should add that this is not an "ex post rationale," but the current justification of our activities offered by many legal educators. A number of critics of my book argued on this very blog that my suggestion that law professor teaching loads should go up is antithetical to the production of scholarship and anti-intellectual.

Why you and Matt find it correct to claim that we are not paid for scholarship is hard for me to understand. If that were true, we are getting full-time pay for a part-time work (teaching 5 to 6 hours a week is not full-time work). This argument appears to vindicate the complaints by critics about lazy law professors who teach little and get paid a lot for doing nothing.

Brian


Posted by: Brian Tamanaha | Feb 10, 2014 9:59:45 PM

Matt,

I'm having trouble seeing the point of your observation that law schools' enforcement of scholarly production is limited, and therefore the correct conception of the arrangement is a subsidy for free time. Not merely an unavoided side-effect, but the "deal" schools have struck.

Now, I suppose that some law school critics might warm to this characterization, but you don't establish that it's what law schools and professors explicitly have in mind. This is the problem with your babysitting/novel-writing hypo. Yes, it's true that Jill didn't write a novel. Lots of people are paid to do things they fail to do - and usually there are penalties. But even when people get away with it, it's accurate to describe them as having been paid for X.

What's strange about your argument is that if law schools suddenly enforced post-tenure scholarship standards, the amount they are spending for scholarship, by your argument, would go up - even if overall spending remained the same. So, Jill's parents somehow aren't out ($5,000?) if she doesn't write a novel, but are if she does?

I also think that if you are going to venture this pretty stylized accounting, you should spend some more time demonstrating the low contribution scholarship assertedly makes to overall salaries (you seem sympathetic to this argument, but perhaps make it largely by implication here). This is not my experience. At every school I've been associated with, high-productivity scholars made more than similarly-situated, less-productive ones. Whether through summer grants, merit raises, or threats to lateral away, scholarly productivity seems to find its way into compensation. I don't share the assumption that it's primarily teaching and service that are doing the heavy lifting here. Of course, my observations might simply be different from yours, which is why you should provide some data if you want to prove your argument.

Something else to consider is that when law schools unbundle teaching from service and scholarship, they don't pay very much for it. Adjunct salaries are generally 1/10 of tenure-stream salaries, on a per-credit basis. Now, let's assume FT faculty are twice as good at teaching as adjuncts (a claim unsupported by student evaluations). That implies that schools are paying quite a bit for service to the institution - service that for a typical faculty members consists of 2-3 committee assignments a year, and the obligation to show up at faculty meetings.

Look, we can stuff a lot of obligations onto the ledger of what FT faculty do. But just as no one (possibly) gets fired for doing no post-tenure scholarship, no one gets fired for lousy post-tenure teaching or indifferent post-tenure service. Matt, keep this argument up, and you'll have me convinced law schools are inexplicably paying to subsidize faculty free time…


Adam

Posted by: Adam | Feb 10, 2014 10:31:44 PM

Thanks Brian. I think we've reached the end here. I think you're right that scholarship considerations drive whom we hire but I don't think they drive whether we hire, ie faculty size and therefore faculty costs. Whether the disjuncture is perverse, I don't know. As for where this fits in the context of law school criticism, I guess I'm sympathetic to the view that there are many relatively lazy professors who don't produce scholarship or do much of anything related to legal education with their time. But they still get paid and will for the foreseeable future. Laying those wasted compensation costs at the feet of an overemphasis on scholarship (as many critics seem to) still seems to me to miss the boat completely.

Posted by: anon | Feb 10, 2014 10:38:24 PM

I disagree with Anon's last point to Brian, but it does suggest a qualification of my disagreement with Matt.

Anon refers to "lazy" professors who still get paid. Let's strip out the pejorative, and simply imagine two groups: More Productive and Less Productive. Possibly, Matt means to convey that the lion's share of total faculty compensation may consist of payments for things other than scholarship; even if just half a hypothetical faculty was "Less Productive", the school is still paying them, as well as paying More Productive faculty for non-scholarship contributions as well. If this is the sense he has in mind, it might be accurate to say that most faculty compensation isn't going to scholarship (even if, as I suggest, differences in compensation may be significantly attributable to scholarship).

I'm still not sure what this would prove other than that law schools might want to rethink their enforcement tools (and I strongly disagree with Anon that scholarship isn't driving the size and compensation of law faculties). Nonetheless, if this re-framing helps Matt overcome the instinctive skepticism his argument invites, I pass it along.

Adam

Posted by: Adam | Feb 10, 2014 11:01:19 PM

I think this post nicely summarizes what has gone so badly wrong with the debate about law schools. As someone above noted, it is not even clear what the point of the post is. If you find yourself nodding your head, what are you agreeing to? There is little question that law professors are expected to produce scholarship and there is little question that many do not or do so infrequently. Does trying to quantify the cost help at all? Is there any other profession where when someone shirks one of their explicit duties, one just shrugs their shoulders and says, so long as you do your other duties all is cool, watch the kids but skip the novel . . . Really? Sorry but I just don't see what the point is and I would urge you to think this through a bit more before your next entry in the series.

Posted by: Mike Selmi | Feb 11, 2014 12:01:57 AM

I feel like this thread has wandered off into a corner, thanks in large part to me, and now I want to redirect everyone's attention back to the main hall. As I said in the original post, "As a general matter, schools are paying their own professors to research and write legal scholarship, they manage their own students in editing it, and they pay a publisher to publish it." The main point of the post was that law schools generally fund their own professors' research. The "corner" that this thread has focused on is, in my view, the disjunction between the stated goal (producing scholarship) and some forms of faculty compensation (flat or seniority-based salaries that do not reflect scholarly production). Of course, Brian and Orin are right to suggest that most entry-level and lateral hires are based in significant part on the candidate's scholarship history and prospective future. So these folks are unquestionably getting paid, in some significant part, to produce scholarship. And if most law profs continue to write after tenure, then the salary et al. that attracted them is likely being used to keep them in their positions and being productive.

The only point I was trying to make in the thread (and I'm somewhat loathe to focus on the corner again!) is that some forms of faculty compensation aren't all that related to scholarship, at least when one looks at how it is actually doled out. And I stand by the claim that if professor A is paid $X for teaching and service, and professor Y is paid $X + 1% for teaching, service, and scholarship, then current scholarship production is really only getting 1%. But this is not only a static model, it might not reflect the general reality, especially across schools. Productive scholars might on average across schools make 20, 40, or even 100% more than nonproductive faculty. So legal scholarship is funded by law schools, but it might not be funded in the most efficient possible ways.

One last example, just to address Brian's teaching loads point: School A reduces teaching loads from four courses to three for all faculty, in order to allow more time for scholarship. About half the profs use the time for more scholarship, and half do not. School A continues its policy for all profs. Yes, the reduction in teaching loads has subsidized more scholarship. But those who write are not getting any additional compensation from those who do not. If the school wanted to target its funds toward scholarly production, it could build in restrictions on the program to reward those who actually produced scholarship. That "funding" would then go much more directly towards scholarship.

Posted by: Matt Bodie | Feb 11, 2014 12:03:05 AM

Matt,

I agree with much of what you say in this explanation, particularly the point that an across the board teaching reduction is an inefficient way to encourage scholarship.

That said, I still think you are incorrect on your crucial claim. All other things equal, if Professor A gets $125,000 (doing no scholarship) and Professor B (doing scholarship) gets $127,000, by your account the law school is paying only $2,000 for scholarship.

In my view, the law school is paying (say) Professor A $40,000 for scholarship (but not getting any) and Professor B $42,000 for scholarship (and getting a return). This is obviously a gross breakdown for the sake of discussion, but the basic principle holds.

The difference in our positions is a normative one, not an empirical one. It is about compensation for our basic employment duties.

Brian

Posted by: Brian Tamanaha | Feb 11, 2014 8:50:24 AM

I actually agree with your normative claim. I just think that as a descriptive matter, it's hard to say you are paying for scholarship when you are not getting any -- and not demanding any. But hopefully my hypo is a relatively rare one.

Posted by: Matt Bodie | Feb 11, 2014 10:09:54 AM

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