Wednesday, March 11, 2015

Legal Scholarship, Suspending Disbelief, and Existential Questions

[I want to draw reader's attention to a thoughtful comment that you must click on to read.]

When Amy Mashburn and I wrote our article (more on this at the very bottom) about legal scholarship we anticipated some of the criticism and addressed it up front.  We wrote about arguments based on academic freedom, comparisons with other disciplines, some kind of instinctive "I just know they are wrong,"  and  the "you must be wrong because I can think of an exception."

I resisted all of that. Who, I thought, would try to justify the state of legal scholarship by saying other departments are just as bad or that he or she just "knows,"  it is influential or that we must be wrong because some articles are influential.Boy, was I wrong. Those types of arguments only magnify my concerns about legal scholarship.

As I understand it, the arguments would go like this:

1. If the history department is wasting money we should too.
2. I just know legal scholarship is influential (as long as someone else is paying 200-300 million a year for it).
3. If there are some influential articles, all  should  have been subsidized. (This actually is very much like an argument Richard Posner makes and which we deal with in our article.)
4. I don't think you should say this because it is really scaring me.

So what is behind this squirming and the use of reasoning that would not pass a high school logic test? I  think it is fundamentally the fear of an existential question. To avoid facing the question, all kinds of contrivances are employed. The most important one is suspending one's disbelief. To even entertain the possibility that most legal scholarship -- especially their own legal scholarship -- is not of much use is like looking into an abyss. The self-esteem of so many  is wrapped up in believing they are special and that specialness is captured by how many second and third year law students say they are by publishing their articles and by how many other people in the very, very small law professor terrarium then download then or mention them in a footnote.

There is something almost sad about this (or maybe I am just falling in love). Suppose a law professor spent 40 years of his or her live teaching four classes a year and did not write a word of scholarship. If worth or value is measured by actually making a difference in someone's life, I think that law professor has made a bigger impression than 80% of those teaching two or three classes and churning out an article or two each year that very few people will read and no one will pay attention to. Sure, it is not as fun as research and writing but truly intellectually engaged people will do it anyway. And, it's a dilemma: Do you really want to make a difference or pretended that you do?  I wonder when actually being effective and more valuable became a sign of failure?

Oh, one more thing. See that link up there where it says article. Please, please, please  do not download it. Do you promise? Get a copy from someone else or I can email you one. That way we are free to say we just know we would have had 10,000 downloads -- instead of 12 --  and influenced thousands  because, in the world of law profs, a lack of evidence proves something exists.


Scott Bauries said...

Hi Jeffrey,

I'm a former UF Law student who is now a law professor at the University of Kentucky (regrettably, I did not have the chance to meet you while I was there, but I do follow your blog). None of our faculty at UK have reduced teaching loads, though we are entitled to apply for a sabbatical releasing us from half of our teaching obligation once every 7 years, and new faculty do receive a light load in their first semester.

I only have my own observations and anecdotes to back this up, but my understanding is that this "4-course-load/7th-year-sabbatical" arrangement is pretty common in legal academia, and that 3-course loads to allow for scholarship and frequent sabbatical semesters are only common among the more elite schools and some of the wealthier non-elites. If this observation is accurate for most law schools, then I think it calls into question your claim that the estimate of cost in the paper is conservative--in fact, it might be a significant over-estimate, but this would depend on whether your assumption is correct that a 12-course load is a natural baseline for teaching without doing scholarship.

I personally am in favor of law professors teaching more. In fact, I requested a 5-course load next year so a course I care about could be taught, so I'm not protecting my cushy turf by expressing this challenge. But, if I teach my four courses a year (five beginning next year) and still conduct scholarship, am I doing my scholarship for free? That seems implausible to me, especially since I am required by my employment contract to engage in scholarly efforts for roughly half of my working time.

Perhaps that means that your 12-credit-baseline assumption is too low, and that the real baseline of teaching with no scholarship should be something like 18 credits? If so, then your aggregate cost estimate might be way, way TOO conservative. I would want to survey the non-law units at each university (or a representative sample thereof) to figure out what a typical teaching load is university-wide before making an estimate of the aggregate costs of scholarship. If your baseline assumption is correct, then the costs might be negligible outside the elite and wealthier schools. If it is off, then your estimate might be way understating your case.

Either way, interesting paper, and one that I think will garner lots of attention.

Jeffrey Harrison said...

Thanks Scott, Interesting. It's a hard call. In the footnotes we cite people who say we are way low and I think they are right. Most of us are expected to write in the summer even if teaching 12 hours. In a sense that is 25% right there. But who knows. We do have it very easy here. In fact, as part of a strategic plan, it was proposed that we teach 12 hours every 5th year. Or, an extra course every 10th semester. It appears much of the faculty was "very concerned" about such an onerous task and the proposal was withdrawn.