Wednesday, February 26, 2014
Funding legal scholarship
Present economic circumstances in law schools -- or, more to the point, economic circumstances of current and prospective law students which are shaping the predicaments of many law schools -- rightly raise the hard question of how, or even whether, most law schools should subsidize faculty scholarship. The "why" question is essential, and warrants continued attention.
For now, if I may, let me turn to the "how" question:
Matt Bodie's posts, and the many comments accompanying them, engage the question of whether internal subsidies can and ought to incentivize scholarship at the quantity and quality level that is appropriate to the mission and goals of the institution.
First, an observation about "theory," before turning to "practice": The model of law schools which aspire to be incubators of meaningful scholarship is one in which faculty compensation is tied squarely to the ability and willingness to engage in scholarship, regularly and reliably and over the course of an academic career. Deans and faculties do their job in good faith and in good conscience when they undertake to monitor equitably and comprehensively this engagement. Students' tuition supports scholarship in law schools just as it subsidizes scholarship by faculty in undergrad and other graduate settings. (This seems to go missing in the debate. Does the Columbia undegraduate truly think that their tuition is going primarily to the teaching work of their full-time, ladder rank faculty?). Accountability to students demands that the law school be responsible and relentless in ensuring that scholarship is a key part of the faculty member's work product. Different law schools will make different allocative choices to be sure; but it ultimately a gesture of defeat for any law dean to throw up her hands and say "scholarly productivity cannot be adequately measured nor adequately monitored, so I can't be bothered to do it."In practice, such oversight is uneven, to put it mildly. In this era in which tuition and debt pressures on students are enormous and must be taken seriously by all law schools, it is incumbent upon deans and faculties to tie these tuition-driven subsidies to real performance. This must happen pre and post-tenure. The AALS as a voluntary membership organization (not an accreditator) helps put some pressure on law schools to be dependable scholarly incubators, in addition to other core functions. The association can and should work with law schools and their deans and faculties to develop structures of incentives and measures of performance to assure stakeholders -- and especially the students from whom tuition is paid to support scholarly work -- that the law school expects and mandates such regular productivity from its full-time, tenure line faculty.
A fantasy world? I don't think so. And I certainly hope not. Many able deans have been focused in earnest on accountability, productivity, and transparency, that the efforts to measure faculty members' scholarly output and to expect work of high quality and quality has created environments in which faculty carry out their responsibilities diligently and with high morale. If faculty and students don't see this in their dean, then they should beat a path to his or her office to insist upon patterns of performance accountability. Students should see their tuition dollars going in part to subsidizing scholarship, not faculty lifestyles. Let me be even more explicit: Our responsible role as leaders of institutions under the stresses and strains of the modern law school economy demand greater scrutiny of faculty performance and high expectations of faculty scholarship. Otherwise, tuition subsidies of faculty scholarship are fundamentally indefensible.
Prof. Bodie's specific suggestions deserve more careful attention, and I will endeavor to do so in future posts. But this depiction of what deans can and must do is meant to get at a central point of the contemporary critique of law schools, a critique which must be taken seriously and responded to by responsible educational leaders. This point is: How can we truly defend the "why" of substantial subsidies to legal scholarship unless we are confident that the "how" is addressed, and is addressed in ways that ensure accountability, productivity, and transparency?
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Wow. I have to say I have a problem with the phrasing "In this era in which tuition and debt pressures on students are enormous and must be taken seriously by all law schools..."
It's said as though this 'era' is something that has arisen via forces external to any actions by the law school themselves - something that law school are simply reacting to rather than having been, quite obviously, the cause of given how much more rapidly tuition has increased over inflation over the past few decades.
There's a severe lack of responsibility in this statement, I think, even if it goes on to say that law school need to be aware of the economic realities of their students.
Posted by: yes, but... | Feb 26, 2014 1:09:33 PM
Even if we take for granted that legal scholarship is a public good, law schools are the best place to produce it, and law students are the best people to pay for it, it still looks like the tail wagging the dog for hiring and pay decisions to be more dependent on potential or actual scholarly productivity than teaching productivity.
Why should students particularly care whether their tuition dollars are going to subsidize scholarship for the benefit of society at large*, or to subsidize faculty lifestyles? Either way it's a near dead-weight loss to them. The key metric they should care about is the percent skim going to anything and everything other than student focused activities.
*Except inasmuch as any member of the society should care.
Posted by: brad | Feb 26, 2014 2:03:49 PM
Brad: it's not either/or. Certainly comp should, and is, related strongly to teaching and teaching performance. No quarrel with that.
But let me ask you three questions: Is improving the overall reputation and prestige of the law school a "student focused" activity? Do students have a stake in this overall reputation? Do you believe that scholarly achievements of the faculty impact this reputation?
Posted by: dan rodriguez | Feb 26, 2014 2:12:14 PM
Reputation and prestige are a zero sum games. It might well be in the interest of a particular student for his school to improve its ranking, but for law students as a whole it's a destructive practice. Intermediary institutions, such as the AALS, are a good mechanism for diffusing prisoners dilemmas by enabling and encouraging cooperation instead of defection.
Also, I take serious quarrel with your positive claim that under the status quo comp is strongly related to teaching and teaching performance, though I certainly agree with the normative claim that it ought to be. Under the status quo the largest single correlate of comp is how long a professor has been in the industry.
Posted by: brad | Feb 26, 2014 2:27:33 PM
I applaud this post, I really do! One hardly needs a Ph.D in economics to understand that any institution in which the workforce is not effectively held accountable for the quality of its work will perform poorly. Indeed, in my view, accountability is as important for assessing teaching as scholarship, given that students are entitled to expect high-quality teaching for their time and money. My own sense has been that most deans have been reluctant to undertake meaningful performance reviews because of the inevitable friction they generate with faculty. I applaud your willingness to undertake what is likely to be a difficult and thankless but essential task.
Chapman University Fowler School of Law
Posted by: Larry Rosenthal | Feb 26, 2014 3:57:18 PM
"Do you believe that scholarly achievements of the faculty impact this reputation?"
Two points. First, to the extent we measure overall reputation by USNWR rankings (of which 40% of the score is "reputation"), then yes, academic reputation is the largest single category (25%), and I could see an immense investment of resources into faculty hiring or comp improving this score. But unless a law school has some source of outside money and can consistently outspend their peers, schools are not likely to improve much, since other schools will increase spending too. Too many resources allocated towards hiring new faculty will result in a short-term drop in the LSAT/GPA categories, since schools will have less money to buy numbers, and a commensurate drop in rankings.
If we're not measuring prestige/reputation by USNWR, most practitioners will not know or care about a faculty's scholarly output. When confronted with applicants from different schools they will pick based on admissions exclusivity and familiarity with the brand (i.e. "I saw that school in the national championship game"). Students will pick schools for those reasons and for the job prospects.
"Is improving the overall reputation and prestige of the law school a "student focused" activity? Do students have a stake in this overall reputation?"
Yes, to the extent this translates into better job prospects. But it does not make much sense for a student to support tuition hikes to increase scholarly productivity.
The numbers show that outside of perhaps 20 or so elite law schools and 30 absolute bottom of the barrel schools, job prospects bear little relation to USWNR rank, are regional, and pretty much all pay within the same 40-65K salary range. That's why it's not a great idea for Brooklyn students to pony up a few million more a year to make some expensive faculty hires, leap 20 spots in the USNWR ranking, and overtake Pepperdine, since all they get for their trouble is higher debt and access to the same 40-60K jobs in the tri-state area (and only 50-60% of them will even find those). Several years of tuition hikes might succeed in pushing them into a higher "prestige bracket", but by that time it will be too late to help the students when it really matters- at the time of the first job.
Increasing the scholarly prestige of the school through wild spending might be important to the egos of already successful alumni, though for obvious reasons this shouldn't be a vital concern to either students or a student-focused dean.
Posted by: BoredJD | Feb 26, 2014 4:49:20 PM
BoredJD makes an interesting point, which I might re-frame slightly.
As BJD notes, academic reputation does not move much, absent heroic levels of investment in faculty. Thus, while I believe law students have both a generic and specific interest in the scholarly reputations of their schools' faculties, that interest will often fall somewhat short of the actual payoff their schools can credibly deliver. One might relate this to Tamanaha's point that - I paraphrase - it is simply crazy that there are plenty of third- and fourth-tier law schools where students are paying 85-90% of Harvard's tuition. (I disagree somewhat with Brian that this is largely an ABA accreditation-driven phenomenon.) Given that the vast majority of law schools have very similar cost structures (mostly) by choice, this disparity in investment and outcomes is hard to defend, even if one accepts, as I do, Dan's point about the interest law students should have in scholarship.
Beyond this, there are two observations relevant here. First, the imperviousness of academic rank relative to a faculty's observable productivity calls disquietingly into question why this "transmission belt" theory of scholarship and reputation works so poorly. Two related explanations focus on the relationship of law faculties to their schools. Generally, we are independent agents, whose scholarly agendas and work are only rarely dependent on where we are located. Credit for outstanding scholarship is divided (with reason) pretty heavily in favor of the individual, with a tiny residue rubbing off on her home institution. When I think of top scholars in this field or that, I don't tend to associate their efforts with their particular schools in any meaningful way (in part because top scholars can be found across an extremely wide range of better- and lesser-regarded schools).
Similarly, I think the insular character of the law professoriate keeps us focused closely on the one or two fields we study. This is not necessarily a crazy idea, but it is going to make it very difficult for schools to leverage scholarly accomplishment into school reputation if only a small handful of admin/procedure/insurance/take your pick scholars around the country are tuning in to the work of their best faculty members.
The second observation is tied to BJD's point about employer's perception of academic reputation. Most law schools can't do much about their school's basketball team performance (assuming they even have one). However, they could speak more directly to practitioners. Putting aside the touchy question of legal scholarship's overall impact on the law, can we agree that most practitioners are definitely not reading many law review articles written by professors at local schools? If so, the best way to leverage scholarship into reputation that will help graduates find jobs might be for law professors to do more CLE presentations and bar journal articles.
Even as someone who teaches and writes in reasonably practical fields, I will confess my enthusiasm for this kind of project is uneven. However, we need a less generalized answer to the question of law students' interest in funding scholarship. Given the (1) extremely muted impact of traditional scholarship on academic rank, and (2) high likelihood that local employers' only contact with law professors is likely to be through CLEs and similar bar-oriented outreach, I suggest we need to focus on these observations as we take up Dan's invitation to address the "why" as well as the "how".
Posted by: Adam | Feb 27, 2014 10:07:30 AM
The first full paragraph of my post displays some confusing syntax. I mean to say that the actual payoff in reputation is likely to fall short of the amount being invested in scholarship; therefore, students are likely paying (indirectly) significantly more than is justified by the extent of their interests in promoting scholarship.
Posted by: Adam | Feb 27, 2014 10:17:05 AM
Adam- CLEs are an interesting idea, and could also at least blunt some of the costs on novice lawyers if they were offered for nominal cost or for free. To get a full slate of CLE credits in my state costs around $700, not an easy amount to come up with for a cash-strapped grad.
Posted by: BoredJD | Feb 27, 2014 1:51:58 PM