Tuesday, October 21, 2014

Highest Priced Research Assistants in the World? More on the Scam

I have already written about the huge investment in legal research. I estimated it to be close to $3 million  a year at my school alone and probably around $350 to $400 million nation wide. This could go down if schools concentrate more on teaching and on line publication becomes the norm.

A colleague of mine and I have launched a study attempting to determine what the pay off is from the enormous sums spent on legal research and writing. We've started looking at law review and judicial citations and are as aware as anyone else that this is incomplete in terms of determining the impact of scholarship. (I mention this so no one will reply as have a dozen of our colleagues, "but there are other impacts.")

Citation counts are not necessarily consistent with impact. From that one might infer that scholarly works have a much greater impact that citation counts would suggest. That may be true and it may not be true. What if citation counts actually overstated impact? In fact, this may be the case.

To understand why, think about why most law professor write. As I have noted, they usually write with a lawyer's mentality -- advocating an idea. To do this these they offer facts (often selectively gathered), reasoning, or both that, like a well-written legal opinion, lead the reader to agree that the proposal of the author was the only logical outcome. And, in a law professor's dream world, those conclusions, proposals, suggestions, whatever will be adopted by a court or agency.

So when a court cites legal scholarship, is that what it is about? Actually no. In fact,  in the vast majority of instances in which legal scholarship is cited, the citation has nothing to do with the author's proposal, reasoning, or logic. Instead, except for very few instances the citation is to some fact found in the work. For example, it might be to "The UN Act of 2015 contains 5 sections." or "Twenty three states have laws prohibiting pit bull sainthood."

In short, the 400 or so million may result in high level thinking and important insights but, for the most part, what courts are after is not that. Courts are looking to the factual underbrush or what any decent research assistant could find for $10 and hour.

It is completely fair to ask whether this is also true of all the others ways in which people claim legal scholarship is of value. Do those impossible-to-count uses rely on the theories and reasoning of fancy articles? We have not looked at that yet but my hunch, and it is only that, is that all those other users to which law professors are fond of pointing are equally uninterested in anything other than cherry picking from the hard research -- not the ideas. We will see.


Fred said...

Does that $3 million include professor salaries? I would think the number is much higher.

Maybe one benefit of law review articles, and having professors write them, is that professors stay educated. That is, it motivates professors to keep up to date with modern trends in the law and to read other people's research and digest it, summarize it etc. So even if law review articles are not visibly or directly leading to any firm changes in the law, they might be useful in that they are shaping legal academics' opinions all over the country, and perhaps inspiring them to think about the law differently or to expand on these ideas and develop further studies.

Jeffrey Harrison said...

Could be conservative Fred. I explained a few blogs ago where the number came from. Law profs do learn from each other but do you think it take 8000 articles a year to serve that purpose?

Fred said...

8000 is probably more than it takes. I think the way to find out is to ask whether the ultimate goal (producing the best students possible) is being served. I.e. consider whether professors are sacrificing work time that could be better spent otherwise.

Former Editor said...

I would add that citations in the law review articles citing other law review articles context is frequently also to cherry pick some data. Law reviews frequently add citations to manuscripts to provide support for various factual propositions advanced, but not backed up, by the author. I'd be surprised if half of all citations in law review articles aren't on this basis.

Jeffrey Harrison said...

What a coincidence, Former Editor, I have just started looking at works one by one and you are exactly right except so far it is way more than half.

Former Editor said...

I was being conservative in my estimate.

When considering value and expense, you might also want to take into consideration the ratio of court cites to journal cites as well as what percentage of each are cited for legal theory rather than data. I think there was a paper shared on TaxProf. a week or two ago that had some numbers on the overall ratio (if you want to cherry pick some data yourself, that is).