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.