The Other "Other Legal Academy" - Scholarship

My 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.