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Saturday, September 10, 2022

The Other "Other Legal Academy" - Scholarship

Jeremy-Telman-scaled-e1598277351203My friend Jeremy Telman (Oklahoma City University, left) has a series of three posts at ContractsProf Blog on his experience as a teacher and scholar in what he refers to as the "Other Legal Academy" or OLA.  His thesis is that there are at least two legal academies, one elite ("The Legal Academy") and one consisting of unranked law schools (the OLA) and they "meet fleetingly." (Full disclosure: Jeremy's post on scholarship has a picture without link to his edited volume Hans Kelsen in America - Selective Affinities and the Mysteries of Academic Influence (Springer, 2016).  I contributed a chapter.)

The posts deal, respectively, with hiring, scholarship, and teaching.  They are provocative, overly modest about Jeremy's own accomplishments, and fodder for my own promised reflections toward the end of a career in what Jeremy might think of as part of the OLA.

This sentence triggered my initial and visceral response to his distinction between The Legal Academy and the OLA:

But unless you are one of the few who can make the leap from the Other Legal Academy to The Legal Academy, do not expect that your scholarship will have an impact or even be read beyond a small circle.

I asked Jeremy how many OCU faculty had moved laterally since 2007 (when I started teaching), because my experience at Suffolk was that a substantial number of my colleagues who got tenure at Suffolk moved on to schools up the food chain - for example, Jessica Silbey to Northeastern and then to Boston University, Hilary Allen to American, Frank Rudy Cooper and Leah Chan Grinvald to UNLV (the latter as dean).  His answer was very few.  I have had colleagues whose scholarly work I know is widely read and influential, including David Yamada on workplace issues (such as bullying), Michael Rustad on tort law, John Infranca on housing communities, Marc Rodwin on health care, and most recently, Sarah Burstein on design patent law.  (There are others as well.)  

Yet for reasons best explained by the US News ranking algorithm, Suffolk currently sits in the #122 bracket along with Albany, Mercer, Baltimore, and Dayton, just behind the #118 group (Chapman, Hofstra, Tulsa, West Virginia) and just ahead of the #127 group (Cleveland State and St. Thomas (MN)).  Indeed, the impact of that algorithm (LSAT scores and bar passage rates) combined with past decisions on class size have caused Suffolk to flirt with over the last ten years, but never succumb to, the unranked list at the bottom where you find OCU and others.

There's no question that it's different being at Suffolk is different than being at Harvard, Yale, Stanford, or even BU. Nevertheless, and despite my unusual path to a faculty and perhaps even to tenure, I never felt like I was on the outside of The Legal Academy looking in as a scholar.  Below the break, I'll reflect on that. (And perhaps touch on Jeremy's reactions to hiring and teaching in later posts.)

1.  In 2004, I was the general counsel of a chemical company in Indianapolis.  For reasons too lengthy and, perhaps, sensitive, I had time on my hands and contacted the then-dean at the IU-Indianapolis law school (now McKinney) about teaching a course on entrepreneurship and venture capital as an adjunct.  I was shocked to find him recruiting me as a potential director of the school's nascent center on entrepreneurship and technology.  Even then, I could see that being a center director but merely as an adjunct faculty member was a losing proposition.  I said, "I'd have to be on the faculty."  He said, "That would be almost impossible; you've never published any scholarly work."  I had no idea what that meant, having been a lawyer in the real world for 25 years at that point.  I went home, and looked into what legal scholarship was.  I consulted a couple of law school classmates who were on "elite" faculties.  I had an idea for an article arising out of one of our board members' concern about being named as the Audit Committee Financial Expert under Sarbanes-Oxley.  I called the dean.  "Okay, fine, if I need a publication, I will write and publish one." I started writing it on Memorial Day, 2004 and finished it by July 4, 2004.  

I cannot now recall if I used ExpressO.  I have a vague recollection either of making hard copies and mailing them, or emailing them separately, in a fit of self-delusion, to law reviews at Harvard, Yale, Stanford, Columbia, Michigan, and for some reason I don't now recall, Wayne State.  Within a week or two, an editor at Wayne State emailed me to say that it had accepted the piece, and I went bouncing up and down around the house like I had just won the U.S. Open.  

One of those law school classmates (Douglas Baird) said to me, "You need to post it on SSRN."  I replied, "What is SSRN?"  I posted it.  Later, Avery Katz (who had summer clerked at my law firm in Detroit and knew my wife from when they were kids) sent me a note to the effect that Larry Solum had posted the article on his "influential blog." To which I believe I responded, "who is Larry Solum and what is a blog?" (NB: while there are portions of that piece I still like, I cringe every time I look at it or think about its puerile naïveté, notwithstanding the fact that it has been downloaded more than 1,000 times on SSRN, no doubt as a result of its truly bizarre and suggestively interdisciplinary title.)

At some point, one of the faculty members at IU-Indianapolis sent me a video file of a talk Ron Krotoszynski (now at Alabama) gave on how to play the law review placement game. The upshot of all this was my reaction to the process: "Damn, this is fun."  So, over the next six months or so, I wrote and placed two more pieces, one in the DePaul Law Review and one in the Temple Law Review.  (Those two pieces involved an email exchange I initiated with Richard Posner, who, to my complete shock, graciously responded, but that story will have to wait for another post.)

My point is that, while my initial forays weren't the elites, they weren't chopped liver either, and I felt like I had entered the mainstream of legal scholarship, whatever it was, even before I had a full time academic position.  

2.   A theme of Jeremy's post is his despair over the quality and the fate of his own scholarship: "very few people care about what I write as a scholar...." "I sent my babies off into the world and watched as they were neither nurtured nor savaged but left to waste away until totgeschwiegen.  Now I am resigned...." "I do regret that I don't think I will ever know if my scholarship is any good...."  First, I think his despair about being unread is unwarranted.  I speak from experience when I say that, if you decide to spend a lot of time writing about the work of Hans Kelsen, you are already speaking to a relatively limited audience.  Nevertheless, I went to his SSRN page expecting to see a mere dribble of downloads.  Instead I found thirty-four papers, twenty of which had in excess of 100 downloads, twelve in excess of 200, four in excess of 300, and one just about to reach 500.  [I have a question in at SSRN about the percentage of posted papers that achieve those benchmarks, so I won't guess, but I know I would be happy with that kind of reception for my own work!]

But, second, is it any good?  That is such an interesting and complex question, particularly in academia, because the criteria are not solely objective.  Another well-known blogger is currently posting the h-index of law professors.  The h-index measures a professor's productivity (at least on Google Scholar) as well as the citation impact - your h-index is the highest number h of your papers that have been cited h times.  As of right now, Cass Sunstein (there's a shocker) leads the pack with 172.  Understand what that means.  He has written 172 pieces that have been cited at least 172 times.   My h-index is 12.  I believe the highest h-index at Suffolk is Michael Rustad's 34.  Marc Rodwin's is 29. David Yamada's is 18.  John Infranca's is also 12 (and he's been at it not nearly as long as I) and Sarah Burstein's is 8, but they are both youngsters.  Google also uses something called the i10 index, which is simply the number of your pieces that have been cited ten times.  Cass Sunstein's is 692.  For that, there are simply no words.  My i10 index is 19, which I've justified with the notion that I've been writing academic articles since 2004, making it eighteen years, that I consider one significant piece a year to be on par for a productive law professor, and thus I have at least one ten-citation piece for every year I've been doing this.  That's my story and I'm sticking to it.

But, of course, we all know that you can write good stuff without having astronomical h-index numbers.  The subject matter makes a big difference.  And you can be widely cited as an example of getting something totally wrong!  

The far more fascinating subject (to me, at least) is the subjective assessment of scholarly legal work as "good," particularly in light of disciplinary boundaries.  Before I was a law professor, I was the chief legal officer for a couple big organizations, which meant that, in making my own decisions in hard cases, I often had to rely on the judgments of experts in fields I knew little about, and whose views either conflicted or were inconsistent with each other.  I have written about that.  Louis Menand and Michele Lamont have each written about the benefits and costs of disciplinary boundaries in academia.  Menand described interdisciplinary anxiety as being "about the formalism and methodological fetishism of the disciplines and about the danger of sliding into an aimless subjectivism or eclecticism." Lamont studied how judgments got made for interdisciplinary grant approvals, concluding that there is no canon for judging interdisciplinary work, and it "struggles with the concurrent polarities of “expert and generalist criteria (what one respondent [in Lamont’s study] defines as ‘virtuosity and significance’).” Indeed, Lamont wrote: "given the emergent quality of the standards of evaluation for interdisciplinary genres, panelists readily fall back on existing disciplinary standards to determine what should and should not be funded."

Which brings me back to my experience.  In his post on hiring in The Other Legal Academy, Jeremy quotes Orin Kerr: "To have a realistic chance, a candidate usually needs either a VAP/fellowship or a PhD. — and everyone knows it."  (Jeremy's point is that may be true for Orin's Legal Academy, but not for Jeremy's.) Credentials are simply easier heuristics for expertise and what is good.  Historically, law professors, even those doing "law and ..." have been autodidacts with JDs, the prime example being Cass Sunstein himself, whose degrees (and their dates) look a lot like mine!  (Obviously, that is where the comparison rightly ends; see above h- and i10 indices.)  What I found from 2004 to 2007, while I was considering that odd late-career jump to academia, was that the world of legal academic split into two categories, one in which my lack of credential was the basis for ignoring me (or at least not returning emails), and a larger one that invited me into the conversations about which I was interested.  That has been no different at Suffolk.

3.  In 2007, we moved to Cambridge and were fortunate enough to buy a house next door to, and connected by a gate with, a wonderful family one of whom was and is a pretty renowned Harvard evolutionary biologist.  We have spent many a Saturday or Sunday late afternoon, going through the gate and sharing a bottle of good or not-so-good wine, comparing notes about research, peer-review and getting published, teaching, faculty dynamics, and our shared interest in ultimate questions (telos being a particular interest of mine, and telos or "purpose" being a fascinating aspect of adaptation).  Honestly, despite the gap in the relevant prestige of our institutions (and our respective careers), the worlds seem remarkably similar.

4.  In short (and this has been anything but), I think Jeremy has overstated the case by focusing on law schools at the extremes of the rankings.  I don't know whether Orin is right about the required credentials to be hired in today's market - it looks to me that the market favors applicants for the first time in years - but I suspect there is still a substantial job market where  you still have a good chance of being hired as a JD-autodidact.  A wise mentor back in 2005 or so told me that I was going to have a hard time getting hired because I wrote to please (or teach) myself rather than inserting myself into existing and ongoing debates.  That was simply a realistic assessment of credentialism back then and it's probably still true.

I agree with Jeremy completely about this: if you can get it, it's a great job, paying significantly more than entry level positions in most other disciplines. More importantly, as the explosion of journals has demonstrated over the last twenty-five or thirty years, unlike philosophy or history professors, the overwhelming majority of our students have no interest whatsoever in following in our academic footsteps, and unwittingly subsidize our ability to write about whatever we damn please and usually publish it somewhere.  Carpe diem.

Posted by Jeff Lipshaw on September 10, 2022 at 08:19 AM in Getting a Job on the Law Teaching Market, Life of Law Schools, Lipshaw, Teaching Law | Permalink


“Now I rejoice in having impact through my teaching. Perhaps I should have lead with that.”

Yes, you should begin and end with that.

“For where your treasure is there will your heart be also.”

What a Blessing a dedicated teacher is, and what a difference this Blessing makes in the lives of that teacher’s students, wherever they may be.


Posted by: N.D. | Sep 19, 2022 4:32:57 PM

Some thoughts on the last two comments. Before I went to law school, I was a history professor. I did European intellectual history. Back then, I hoped to be in conversation with leading intellectual historians. That would have been impact enough for me. I'm glad to be in the legal academy, where there is a real possibility of effecting practical political change, but such work has never been at the core of my professional aspirations.

Professor Bahnzaf notes that most academics at top law schools also don't have that much impact through their scholarship. But everything is relative. I spent the weekend reconnecting with old friends at a German Studies Association conference. This morning I chaired a panel featuring two papers on Hannah Arendt and one on an obscure early-20th-century theosophist illustrator named Max Thalmann. All three papers were fascinating, and I was engrossed and engaged. On Friday, I gave a paper s part of a panel on legal issues in the Weimar Republic, Nazi Germany, and West Germany. My paper was on Weimar constitutional theory. The other papers were on murder trials and what they reveal about reveal about social and political struggles in the various iterations of the German state. I attended other panels, but you get the idea.

This is me living my best life. Does it have a "real world impact?" Well, ultimately, the hope is always that the slow accretion of ideas will steer us towards a better way of thinking about deep questions. But I think Professor Bahnzaf will be satisfied with the short answer, which is "probably not." And yet, this weekend embodies the life I hoped to have, and it is a life that is very hard to have (not impossible, mind you) in the OLA.

But as I explained over on the ContractsProf Blog, I have resigned myself that I only rarely get to live the best life that I imagined for myself when I thought I would get to think about intellectual movements in Central Europe for a living. But I look for professional fulfillment elsewhere. Now I rejoice in having impact through my teaching. Perhaps I should have lead with that, but I put that post third. By that time, people had lost interest, but that was my main message. In addition to the kind of work that you did in the OLA; in addition to the solid scholarship and law reform work, especially working with local and state governments, that goes on the OLA, there is the highly important and "real world" work of teaching.

Posted by: Jeremy Telman | Sep 18, 2022 3:03:11 PM

I'd like to respond to John Banzhof's comment, which aptly captures one of the dominant criticisms of law review scholarship, i.e., its sometimes limited impact in the realms of scholarly discourse or law reform. I agree that there's a lot of traditional law review scholarship that doesn't move the needle inside or outside of the academy. But that doesn't invalidate the format, in my opinion -- and I come from an original place of assuming that I'd do conventional scholarship sufficient to get tenure and then do whatever I damn well wanted to do besides teaching.

My revised position -- based on personal practice -- is that a sufficiently researched, developed, and well-written law review article can serve as the intellectual and scholarly foundation for law reform. I use the term "intellectual activism" to describe it, and I have experienced this in two realms: (1) workplace bullying and abuse; and (2) legal rights of unpaid interns. In both cases, I wrote what are regarded as foundational pieces that have helped to frame subsequent law reform efforts, and I've been integrally involved in the latter as well. I've also been closely involved in an effort to incorporate psychological perspectives into legal scholarship and practice -- a field called therapeutic jurisprudence -- and have used law review scholarship to advance that objective.

With apologies for being one of Those Guys who then cites his own work, I offer a blog post -- "Using scholarship to make a difference" -- that captures my core views on this and discusses some of my longer writings on the topic:

By the way, looking back at my own scholarly choices, I now understand that my appointment at a regional law school freed me to write about whatever grabbed my interest, regardless of whether others were writing about it or had even given it much thought. In my judgment, the whole prestige/rankings obsession has also made folks very cautious in their writing, lest they be seen as being too out there or raise questions/proposals that others might scoff at or even ridicule. Few, if any, academics had high expectations for me as a scholar, and that ironically became very liberating in terms of developing my own scholarly voice.

David Yamada

Posted by: David Yamada | Sep 12, 2022 4:24:02 PM

The following sentence was singled out:

“But unless you are one of the few who can make the leap from the Other Legal Academy to The Legal Academy, do not expect that your scholarship will have an impact or even be read beyond a small circle.”

But as one who has taught at both the elite “The Legal Academy” and at the “Other Legal Academy” of unranked law schools, it appears that many if not most law professors at either have not made a significant impact in the real world beyond the ivy covered walls of academia.

By this I simply mean an major piece of legislation, a precedent-setting judicial decision, or an important regulatory agency ruling which largely resulted from the efforts of a law professor.

Yes, there are many, but they seem to be few and far between.

Sorry!, but being cited by others who are likewise behind the ivy covered wall, or having a piece including in a string cite in a judicial opinion which hardly depended on that scholarship, doesn’t really count as having “an impact” in the real world.

I had my first major impact shortly after graduating, and before I had even begun teaching or legal practice.

Subsequently, both I am my law students have been privileged to have several addition ones by using law as a powerful but largely underutilized tool for attacking social wrongs - NOT by writing law review and similar pieces.

This proves that those from OLA law schools can do the same, and even have more of an “impact” than those at TLA schools.

Posted by: LawProf John Banzhaf | Sep 12, 2022 3:28:27 PM

Very interesting post, Jeff.

FWIW, when I wrote that "to have a realistic chance" at a tenure-track lawprof job, "a candidate usually needs either a VAP/fellowship or a PhD," I was thinking of Sarah Lawsky's annual posts here at Prawfs about entry-level lawprof credentials. In a typical year, about 90% of hires on her list have those credentials. I wasn't trying to give an assessment based on hiring at any particular school, or based on my experience on appointments committees at any particular school; it was just a reference to Lawsky's annual posts here at Prawfs.

Posted by: Orin Kerr | Sep 11, 2022 3:09:10 AM

All contributors to this debate offer great points. As the above poster notes, I do think location matters; schools like Suffolk are able to attract many very talented professors who can make lateral moves and they have to create a different scholarly atmosphere to retain people. But I agree with Jeremy's point that the many schools in the OLA, particularly those in regional markets or in the midwest, often a much different experience.

Many of these differences are not necessarily intentional; many are simply due to the fact that professors in the OLA have greater teaching obligations (some have 4 courses a year compared to 3) combined possibly with teaching a greater variety of courses (thus more new course preps). There may also be greater expectations regarding reaching out to the local bar assn and engaging with the community (attending dinners and such) than those at elite schools. First year professors often do not get a course reduction and some don't even get pre-tenure leave. All of this means there is both less time and mental energy to write. There are also less resources. Many of the students at OLA schools are not seeking to clerk and have less incentive to forge faculty connections; they need to work part time jobs and an RA job paying minimum wage is not that attractive to them, so it makes it hard to find quality RAs. And if said professors are happy where they are and are not seeking to lateral, there is neither the time nor incentive to go out of their way writing law review articles or even going to conferences, especially given lack of resources.

Compared to social sciences and humanities where there is much more a hierarchy, I have found the legal community as a whole very welcoming and not elitist in excluding members of the OLA who want to be there. I am at a school that would be the OLA, and am given some of the support of a LA person though it is harder on me because I do lack resources as mentioned above. But many members of the faculty who I expect will spend the rest of the career at my institution are not that engaged in scholarly debates, don't write much, don't attend conferences because there is really no incentive to do so if they have no intention to lateral.

So in some sense the dividing line is not necessarily between OLA and LA, but between those who want to be engaged and those who don't. If one is at an OLA school and does not seek to lateral, other than personal fulfillment, there is little incentive to do all the things that are almost expected of tenured professors at LA schools. This does create two or even three types of law professors - those who are tenured who don't write much and those who go to conferences and are active in scholarly debates. This might roughly match up with OLA v. LA but more properly might be between those who are at OLA and don't seek to lateral versus those who seek to lateral or are at LA schools.

Posted by: anon | Sep 10, 2022 7:22:11 PM

As a Suffolk colleague of Jeff Lipshaw, I want to thank Jeff for thoughtfully prompting a conversation about scholarship and prestige issues.

I would add a note that location matters. What I refer to as regional metropolitan law schools -- law schools with both day and evening divisions located in major cities, ranked outside of the elite circle -- can more readily attract faculty who are oriented towards scholarship, and draw speakers for events. But at each of these schools, the attitudes towards scholarship needed a culture shift. This has certainly been the case at Suffolk. When I arrived here (1994), the role of scholarship in institutional life and promotion/tenure was changing -- sometimes very stubbornly so -- to reflect a greater appreciation for it.

Personally, I think that the inevitable linking of these discussions to the US News rankings reflects one of the saddest dynamics in the academy. I do not criticize Jeff for doing so, because I agree that these rankings have become a coin of the realm that we must acknowledge. But they wreak havoc on self-esteem, play on the insecurities of a pretty insecure group to begin with, and promote a sort of "rankism" (a term coined by former Oberlin College president Robert Fuller that I've borrowed for some of my scholarship) that can unjustly exclude.

I have long observed that those of us who must negotiate these prestige and reputation measures are spending our careers in the "Valley of Tiers," that figurative space in higher ed where virtually everything that moves is ranked in some reductionist manner. That said, I'm happy -- even grateful -- to be part of the "Other 'Other Legal Academy'" as Jeff phrased it. It offers a helluva lot of flexibility to stake out one's own teaching/scholarship/service territory, so long as we do good work overall and we're not looking to use our current venues as mere steppingstones up that rankings ladder. In fact, it's actually quite freeing, which is about as good as working without a monster trust fund can get.

Posted by: David Yamada | Sep 10, 2022 3:24:26 PM

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