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.