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Tuesday, February 25, 2014

Scholarship funding: why and how

Earlier this month, Prof. Bodie helped us focus on an important set of issues regarding the structure of funding and incentives for legal scholarship.  In his posts, and in the voluminous comments, he offers a number of descriptions and also prescriptions about how best to reshape the landscape within law schools.

As I enter this debate (as an experienced dean, in addition to a longtime academic), let me sharpen this discussion by revealing the three questions raised by Bodie and the commentators:

  • Why should law schools be subsidizing scholarly production by their faculties?
  • What is the optimal model for such subsidies, given the goals of:  (1) increasing the production of scholarship within particular schools and within the academy more generally; (2) limiting the burdens on law students; and (3) administering a system in an efficient and fair way?

In short, the questions are about "why" and "how."

As to the "why," the issue continues to be chewed over in the media, the blogosphere, and occasionally in more extended articles and books (Brian Tamanaha's being perhaps the most important recent example).

My own summary of the reasons why we do it is not, to put it mildly, arrestingly novel, but merely summarizes what, to me, is the compelling cluster of reasons:

  • As part of universities, we have an obligation to engage actively and purposively in the development and dissemination of knowledge -- knowledge about our profession, about the structure of institutions in which law is created and in which it performs functions of consequence in a democratic society, and about the content of legal rules, their implementation, and their desirability.  No law decrees that any one law school, or any collection of law schools, need to be part of colleges or universities (and several aren't, of course).  But the price you pay for being embedded in a university structure and culture is that your tenure-line faculty engage in the practice of scholarly work and production;

 

  • Law professors have a comparative advantage in doing this scholarly work.  This is true by virtue of their employment structure; it is true by virtue of their competency, as measured by colleagues who hire them, deans who evaluate and incentivize them and, to a large degree, by self-motivation and habit of mind.  Full-time law professors are especially suited to engage in the work, research, and collective efforts required to do legal scholarship at a high level.  This is so not because of innate qualities of brilliance or even temperament; it is so because that is what they are hired and required to do and, further, because they have the fertile environment of institutions filled with capable, ambitious colleagues and equally capable, ambitious law students;

 

  • To be sure, at its worst, legal scholarship is banal, remote from considerations of both the bar and the academy, and is overwrought.  The same can be said of bad judicial opinions, bad statutes, and bad work product in nearly every field.  At its best, however, legal scholarship can and does help shape the law in constructive directions, can help shed illuminating light on difficult legal and policy puzzles, and can help advance important societal goals.  Choose your favorite example.  The work of environmental law scholars from the 70's and 80's helped transform modern environmental law; actual people benefited from these efforts.  The work of constitutional lawyers helped propel the cause of marital equality in the past fifteen years.  The work of libertarian legal scholars and political economists are helping shape the debate over eminent domain in the post-Kelo world.  The list is a long one.  The value of legal scholarship should be judged by its best practitioners, not its worst excesses.
Brian Tamanaha raises a point that is both provocative and essential when he asks whether such efforts should be undertaken at every ABA-accredited law school.  I regard this as a very difficult question to answer, especially under current economic circumstances.  However, if we start from the premise that scholarship is a public good which qualifies for significant financial support, we have at least framed the debate as about how best to go about supporting this work, rather than (as not Brian, but those who take the most hyperbolic portions of his book and run with them) scheming to dismantle it.

So, let me just end the big picture take on the "why" question by raising, as a thought experiment, the question of what would law schools look like if you took the scholarly dimension out of this space entirely:  It would be one in which both positive and normative explorations and insights would be carried out by lawyers and judges who would be doing this as essentially a hobby (or perhaps as a veiled effort to advocate vigorously on behalf of a client's interest).  Scholarship of some sort would emerge, but not from the hands and brains of those who are hired, trained, and incentivized to undertake it at a high level.  Further, scholarship involving law done by full-time academics would be left to those within our universities who are not in any important way teaching and training law students.  Thus, the divide between the concerns of the legal profession and the preoccupations of academics would grow, not shrink.  Let's be clear: Student tuition would still subsidize scholarship, but it would, instead, be principally the tuition of undergrads and grad students.  Scholarship about law wouldn't go away; it would just be done by folks not law professors.

Why subsidize the production of legal scholarship?  Because we believe this to be a public good (even though some of the scholarship is surely bad) and because we believe that the nexus between how we teach and train law students and how we understand, describe, and reform law should be tethered in meaningful ways to this teaching function.

Central questions remain about whether this goal should be universal, whether it is the business of outside accreditors, whether it must be modified in light of difficult employment circumstances and high student debt, and how best to fund it.  But some agreement should be had, at least by the vast majority of stakeholders within and outside the legal academy, about why we ought to promote and fund scholarship in our law schools.  If we can't agree on that, the rest of all this is jibber jabber.

            

Posted by Dan Rodriguez on February 25, 2014 at 11:02 AM in Life of Law Schools | Permalink

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Comments

Dan,

I am committed to scholarship as an essential public good (I've written seven books, nearly all theoretical, and am working on yet another.) Other than a few anonymous extremists, most critics of legal education do not suggest that zero legal scholarship should be produced. The issue is one of proportion. The reform proposal in my book was hardly radical: that teaching loads at most law schools can and should go back up to the 14 to 16 credit range (as was the norm for much of the 20th century). This would still leave ample time for producing scholarship; after all, earlier generations of professors with these teaching loads managed to write.

In addition, it is fair to raise questions about how much we get paid to produce this scholarship. A great deal of legal scholarship today is hard to distinguish from scholarship produced in other university departments (history, economics, cultural studies), yet we are paid much more to produce it (including summer research grants). This increased price/cost of legal scholarship should also be up for discussion.

It is not helpful to set up the debate on legal scholarship in "yes or no" terms. The critical questions revolve around how much time and resources individual schools should put into scholarship. Unfortunately, it might be too late for us to have this discussion because the financial crunch we are now facing will force many law schools, on way or the other, to cut back on support for scholarship.

Brian

Posted by: Brian Tamanaha | Feb 25, 2014 12:27:46 PM

Brian,
I agree it is not helpful to see this as "yes" or "no", but that's been the way it is framed, as you know, in much of the omnibus critique of law schools. The scamblog narrative is "scholarship is worthless," not "scholarship is overproduced" or "too many law schools are producing scholarship." Note that I said, as a parenthetical, that this has been one of the narratives which which your book has been associated. You may rightly quarrel with this assessment and not like this unintended consequence, but you must acknowledge that this has in fact been one key consequence of your contributions to these debates).

More to the point: To say that "[t]he issue is one of proportion" elides the issue somewhat. What is the empirical basis of the claim that a significant expansion of teaching loads (especially significant at the elites, where this range would more or less double the loads) would leave the same quantity and calibre of scholarship? This question is your question if you believe, as you say and I believe you do, that scholarship is an "essential public good."

". . . hard to distinguish from scholarship produced in other university departments." We will have to disagree about this. The impact of being and working in a law school setting, with law prof colleagues and law students impacts the contours, tone, and structure of legal scholarship - even interdisciplinary scholarship. Aaron Director,Ronald Coase, and their progeny knew what they were doing in embedding their research and their teaching in one particular part of the university -- the law school. The same is true of the very best of legal philosophers. Your claim cannot be supported on the evidence of a half century of impactful interdisciplinary work. And it certainly cannot be supported on the evidence of valuable doctrinal work, work done entirely in law schools.

All this said, I quite agree with your framing at the end of what are, in fact, the "critical questions." While I will ruminate a bit about this in future posts, I think that another basic question, which is only really hinted at in "Failing Law Schools," is what would likely be the impact of significant cutbacks on the production and broad diversity of legal scholarship? If you believe that the impact would be minimal, as I do not, then there is much more to these recommendations for radical change. If not minimal, then we are back to the "essential public good" question. What is lost in the miasma of crisis behavior? What is gained as substitute?

Posted by: dan rodriguez | Feb 25, 2014 1:51:57 PM

Dan- The "scamblog narrative" is that tuition is too high and there are too many law students. If we could lower tuition and class size and produce all the scholarship we're doing now, scambloggers would support that. If we could lower tuition and class size only by getting rid of all the scholarship, scambloggers would support that. If we could lower tuition and class size and keep some scholarship, we would support that. I haven't seen any law professor even attempt to make a case for the former, but perhaps you can be the first. The argument about whether scholarship is or should be "worth" anything to the practicing bar long predates the scamblog movement. I doubt Chief Justice Roberts, for example, formed his opinions on the value of legal scholarship only after reading FLS or ITLSS.

And let's be clear: you're not advocating the subsidy of "scholarship." You're advocating the subsidy of the lifestyles of law professors, who presumably (but no guarantee) will produce at least some scholarship. I doubt you could make any kind of defense of legal academic jobs as an essential public good that could get Congress to directly fund your work, and that's why you need indirect government funding from broke kids.

Posted by: BoredJD | Feb 25, 2014 4:07:52 PM

Dan,

There is little value in setting up the discussion as a response to angry "scholarship is worthless" statements made on anonymous blogs. They won't be convinced no matter what you say. You are the President of AALS and dean of one of our most respected law schools--and what I am saying is that it makes more sense to frame the issue with greater nuance.

As for my book, I wrote: "Academic institutions are dedicated to the development of knowledge and have an essential place in society....Knowledge is a valuable public good that our society must encourage. Nothing I say here questions that." p 61.

You apparently feel that I bear substantial responsibility for the current backlash against legal scholarship (insisting that I "must acknowledge" this), but this ignores high profile criticisms of legal scholarship by prominent judges (Justice Roberts, etc.) and in the New York Time series on law schools, not to mention concerns about the law reviews being run by students, and so on. All of this was out there before I wrote my book. Frankly, I don't know why blaming the backlash on someone (me or anyone else) is relevant to the substance of the issues you raise. Like it or not, we must acknowledge that serious observers--including the ABA task force--have raised legitimate questions about the extent to which we have prioritized scholarship.

You ask: "What is the empirical basis of the claim that a significant expansion of teaching loads (especially significant at the elites, where this range would more or less double the loads) would leave the same quantity and calibre of scholarship?"

I do not make these claims. If teaching loads increase, the quantity of scholarship will go down. Nor do I propose that the teaching load at top law schools should double. My proposal was for differentiation. The most elite law schools (top 10 or so) have always had lower teaching loads, and that will likely continue.

Teaching loads used to range from about 12 credits at elite law schools, to 14 to 16 at most schools, up to 18 at a few schools. (By comparison, it is not unusual for professors at teaching colleges today to teach 3-5 classes per semester, which comes to well over 20 credits a year.) Teaching loads are lower today across the board at law schools following decades of urging by law professors and AALS (in conjunction with hiring market dynamics for professors)--which we explicitly justified in terms of freeing up time to do more research.

The reduction of time and money allocated toward scholarship will undoubtedly have consequences. What those might be we cannot know, but we have no basis to assume that the current level of scholarship is "optimal" in terms of social value. And lamenting lost scholarship is only one aspect of what must be considered. We must also ask: at what cost, who should pay, and how much.

Brian

Posted by: Brian Tamanaha | Feb 25, 2014 4:40:58 PM

BoredJD: I do in fact believe that law schools can -- and ought to -- deal with their cost and size structure (including, where feasible, lowering tuition and class size) while maintaining support of legal scholarship as a public good. Indeed, we don't have the luxury these days of doing otherwise. And I do acknowledge that the principal parts of such subsidies will come from law students -- which is why it imperative that such work be explained and defended as, in fact, a public good. I will readily give you that law professors have only rarely undertaken this necessary task.

Brian: Nuance is the right approach; ad hominem on both ends is not. So, let's get past your responsibilities and objectives and my august positions and have a more nuanced conversation: "Failing law schools" because the cost structure leaves (many) students in distress; reducing costs = reducing scholarship, in quantity and in range (unless your point is that it is only among the top 10ish law schools that good scholarship is being produced); and this is a cost worth bearing in order to ease burdens on students, this despite the impact on the quantity of scholarship. Do I have this about right?

So, the core question of at least this thread is this: Is it a social cost to have less scholarship and a differentiated supply depending upon the law school and its place in the pecking order? Is it a cost worth bearing, given other exigencies and goals?

Despite references to "serious observers," this is not the framework within which the ABA Task Force views this issue, nor is it David Segal's. I wouldn't characterize the Chief Justice's underlying concerns, as all we have is a broadside against highly-academic scholarship.

Posted by: dan rodriguez | Feb 25, 2014 4:59:59 PM

Aren't most public goods provisioned by governments? Is there any justification beyond status quo bias for law students in particular to be taxed to pay for scholarship that benefits society at large?

Posted by: Brad | Feb 25, 2014 5:23:27 PM

@Brad:

We have been told that a JD is worth a million dollars. With such a boost to lifetime income, why would law students possibly mind?

Posted by: Morse Code for J | Feb 25, 2014 9:17:57 PM

I don't see how you can analyze the value of legal scholarship without confronting the failure of judges and legal practitioners to cite to it on a regular basis.

Posted by: TWBB | Feb 25, 2014 9:53:49 PM

"I do in fact believe that law schools can -- and ought to -- deal with their cost and size structure (including, where feasible, lowering tuition and class size) while maintaining support of legal scholarship as a public good...it imperative that such work be explained and defended as, in fact, a public good."

Therein lies the rub. Unless I am misreading you, the maintenance of subsidies for law professors are the primary consideration, to which the tuition/cost debate follows only after the scholarship is preserved. That's just not the purpose of the "subsidy" you're referring to, which is the federal student loan system. Those programs were started (and are intended to be) ways for poor and middle-class kids to get an education, not as a jobs program for university employees.

I have serious doubts that many members of this fall's incoming class (or classes at much lower ranked Chicago schools) are going to be comforted when you explain to them that even if their 200K investment doesn't work out, they should be thankful it went to buy some absolutely great scholarship. I think you know that would be terrible PR, and is why the law schools focus so intently on the value of the JD degree in the job market rather than the inherent value of the education.

Posted by: BoredJD | Feb 25, 2014 10:24:37 PM

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