Sunday, February 08, 2015

Legal Scholarship: Is It a Public Good When You Can't Give it Away?

I have read some defenses of the massive investment in legal scholarship based on the public good rational. I addressed this to some extent a couple of posts ago but at that time did not realize how much defenders of legal scholarship misunderstood the notion of public goods.

At at superficial level legal scholarship is like a public good in that the producers cannot keep others from using it without payment. Of course, not all of it is because as long as producers can internalize just enough of he benefits to exceed the costs, they will produce it. They do not have to internalize all of the benefits. When the is money on the line -- like in antitrust and other areas -- this is likely to be the case.

The other problem is that discussion of public goods assumes there is a demand for what ever is produced but that demand is not expressed in the market.  In effect, everyone hopes someone else will produce and he or she can free ride and no one produces. If, however, preferences could be revealed, discovered, or forced into the open somehow, out would pop this demand for the public good. So, no one hires private security firms but when there is a police force they are quite happy about it. And no one stops polluting but they really want pollution to stop.

You can see where I am going. We cannot determine the demand for legal scholarship but we can assess how much people would have demanded of it by looking at its use after the fact. And, what we find is that there is a very small  hidden demand. How do we know that? Because you cannot even give it away once produced. (The "it" here is not paper and ink but the ideas, theories, and arguments made) In fact, we try to give it away -- westlaw, ssrn, reprints etc., but where is evidence that anyone cares about most of it. Do you really think someone somewhere is waiting with  bated breath just wishing someone would write an article about the efficient breach, antitrust standing, or the ADR in the Netherlands?

The talk of legal scholarship sounds all high minded but let's get serious and stop pissing away hundreds of millions of dollars. The public good rationale for legal scholarship holds true for a very small percentage of it and that scholarship is generally not in the top ranked journals.  Instead, the rationale is something law professors made up to justify fewer  teaching hours and as a way to raise the qualifications to become law professors -- professional birth control you might say.

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