Scholar or Producer: The Pi spot

Tomorrow I  am scheduled to be on a panel discussing the future of legal scholarship. This led me to think about scholarship. There are two distinction that can be made. One is between scholarship and advocacy. Many law professors write advocacy. The difference is this. You are an advocate if you start out to prove something. In effect, you know the outcome of your research before you start and you gather support and use many "for example," cites.

You are a scholar if you do not know the answer. Your research is designed to learn, discover or test a hypothesis and you report the outcome no matter how disappointing it may be to you personally.

Another division is between scholars and scholarship meaning actual printed pages. (Since so many law profs do mainly advocacy this is not about them.)  Some of the most interesting people I  know are simply scholars. The are  thinking and searching but do not write very much.  In fact, for those people the actual time spent gathering 200 footnotes, ratcheting up the article and going back and forth with law review editors is just too boring and detracts from the process of being a scholar. They live in a world of ideas. And some people are so "productive" that they write plenty but really have few insights that engage others.  The system rewards these pseudo scholars. On the other hand the true scholars who do not communicate their ideas are neglecting what they are paid to do.

I have know a few people who have hit the sweet spot of being a scholar and also writing when they actually had something to say as opposed to keep the dean off his or her back or to be noticed. Those folks are the best. My last count is that there are 56.314 law professors who have found that spot. Let's call it the Pi spot

Law Review Pie: Articles in Real Life

The whole idea of a law review exchange rate which was explored two posts ago got me to thinking about how law review articles might fare in different circumstances. For example:

Tom brings a law review article to the Antiques Road Show. The expert examines it carefully and notes that it was written in 1976 by an assistant professor. It has 230 footnotes and 56 pages. The author went on to write 6 more articles before retiring. Based on comparable sales the expert says the article is work 10 Peeps and in an auction with highly motivated bidders, it could go as high as 11 Peeps.

A law review article is on Survivor. It has a very sexy title which leads to thousands of downloads. It has been cited 12 times by scholars and never by a court. It is voted out at the first tribal council because it insists it is important although it is only good for kindling in a fire.

A law review article is on Better Call Saul. It plays the role of a small time con man -- claiming to be something it isn't. Jimmy befriends it but it is too shallow even for Jimmy so he hands it over to Mike to "take care of."

A law review article is on that show where people try to get successful people to invest in their ideas. Actually, not really, the article never makes it through auditions because the experts, for the life of them, cannot understand why anyone would spend money to make sure the articles exist.

A law review article appears as a new footman in Downton Abby. The cook, Mrs. Patmore, thinks it is a ghost since nothing is there. Nevertheless, she gives in to Daisy and along with some other articles makes it into a law review pie. It is served at the next dinner. The guests all become sick and she is fired.

Every Decision is Made: P.S. on Peeps

My last blog on the costs of legal scholarship caused widespread discomfort if widespread could, in some world, mean two people. Their comments seemed to boil down to two issues. One is the estimate of total cost of $240 million is too high. No one offers an alternative but it's just too high. Why? Well it's just too high. Actually it may be too low since, as I was reminded, some of the 8000 articles are published by non law profs and thus the number divided into the 240 mill is lower and the cost per article goes up. I was also reminded that some of the release time for profs is for committee meetings, etc. That may be true but, at least at my school, you are expected to do all those things no matter how many hours you teach. You get released from courses if you write. [On this I want to offer one caveat. There is a difference between being a scholar and producing scholarship. I know some great scholars who do not actually publish much.]

But aside from quibbling about the numbers and a line of argument I did not follow about how I had not distinguished between difference schools and professors at different points in their career, I would say there is one underlying theme. Law professors are terrified of cost/benefit analysis when it comes to scholarship. I am too unless I am doing it. Actually, they want no part of cost benefit analysis, no matter how broadly defined, whether it comes to scholarship, LLM programs, certificates, or courses.

The problem is that all of these decisions are ultimately made one way or another. Someone decides how many hours faculty teach as opposed to doing research. what course to offer, when a course is too small to offer, etc. There are some alternatives to cost benefit analysis in making these decisions. For example, release time from teaching could be based on seniority or juniority. It could be based on the number of students taught. It could be based on a faculty member's persistence in lobbying the Dean or the strength of a threat to file a grievance. This last one is probably the leading system for allocating law school resources.

I cannot put a dollar value on every article so I can compare it with 30K. That would be silly because not every article costs 30K to produce.  On the other hand, I can hear a topic or read a title and know in many cases that the topic means the article will not be read and will not have a positive impact on anyone.  All Law professors can do this.

Every decision is made. Why not be responsible and accountable and face the fact that some of it cannot satisfy any form of cost benefit analysis. It's what we do when we spend our own money. Seems like a good idea when spending the money of others. Or, we can just continue with a system of making decisions that has no name, cannot be written down, and which has only one advantage -- it is scrutiny proof.

The Cost of Scholarship (and Peeps)

In an article I wrote with Dean Amy Mashburn we estimated that $240 million a year is spent on legal scholarship. I am not sure if advocacy (which many articles are) is scholarship but let's say it is. There are about 8000 law review articles published every year. That means about $30,000 per article on average. Some cost more if the prof is an underachieving senior and some may be less. The assumptions underlying that figure can be found here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2569499 The 30K may be too high since in addition to 8000 articles law professors produce case books, books of readings and so on.  On the other hand, it could be very low since it does not include sabbaticals, summer research grants, secretarial time, costs of law reviews, copying costs, and submission fees. And some of those 8000 are published by people other than law professors and this too raises the average cost.  On balance it is probably a bit low but regardless of your own assumption it's a lot of money per article. Plus, all of this begs the question of whether income producing materials should be supported as scholarship. This is a thorny question since all the efforts are work for hire and if the universities cared to they could claim the royalties.


But let's play with the 240 million and 8000 and 30,000 per article. I read the other day that the  average Habitat for Humanity House costs $85K. So the tab for legal scholarship is equal to 2800 houses per year for the less affluent. Yes, that would be just less that three law review articles. There may be three law review articles out there that are worth a house for a relatively poor person. In fact, I bet there are. None of mine are and I have a hunch that goes for about 80% or more of the articles written.


Or we could put it this way. I read that the average student graduates with $140k in debt. That is about 4.5 articles or, if all scholarship money were devoted to reducing student debt, 1700 students a year could graduate without debt. Personally, I am not that comfortable writing 4.5 articles and making the case that they are worth the same as asking a 24 year old to start his or her life with 140K in debt.

In fact, since we are all bleeding hearts, you could extend this and say starting out with that much debt means a student is less likely to take a public interest job or a job as a public defender in which case, your scholarship may be actually be making some people worse off.

I know if we stopped all scholarship today it would not mean instant houses or debt relief. Moreover, some of it is likely to be worth every penny. The point is that the cost of legal scholarship is massive and law professors often pick topics on the bases of what will appeal to 24 year old law students, or on a whim, or because they want to once again preach to choir.

I don't post many blogs in which I don't try to be funny a little bit so let me close with this. Easter Peeps are much better than  any other Peeps. I am so glad the Easter Peep season is here. Cost of legal scholarship: 750,000,000 Peeps.

The Mayflower and Modern Contract Law

Here is the abstract for my latest yet to  be written article, the title of which is the title of this post.


Clearly all we now know about third party beneficiaries can be directly connected to one particular incident on the Mayflower. The same is true of the Statute of Consequence and the Contractual Contraction. This article explores the concepts and the evolution of events that led to their widespread adoption. This  effort is challenging because not that many people who travel on the Mayflower left a record of exactly what went on aboard. In fact most, if not all, of those aboard have now passed away. One thing that as become clear, though, is how much American contract law owes to the 102 brave souls aboard the Mayflower.

This is a new direction in my legal research and, with all due humility, legal research generally. First, no theory. When you are at a mid level school and went to a School that is rapidly becoming mid level no one will published your article that includes theory. I have heard this directly from editors. This is both good and bad. The good part is review editors are risk averse and have a chance of correctly assuming that people who went to so so state law schools know anything about theory. The bad part is that they assume a professor who attended and teaches at a  top level law school does know anything about theory. They do not understand that name brand schools to do not guarantee that the author is going to say anything anyone will remember even for a day or even  minute or read at all.

OK, so no theory. Just as important, almost no footnotes. Where are you going to find sources that provide information about contract law aboard the Mayflower. Oh, I know there is a fair amount of information in the Kingly piece, Tibor Kingsly, "The Mayflower's Lifeboat," 12 North Suffolk L. Rev. 211 (1875), but beyond that not very much. No footnotes is both good and bad. The good part is that there will be no footnotes that exist just to be footnotes. Also, no "see also," see i.e,", or whatevers that were merely lifted from other articles. The bad part is that most of the article will be made up. But when you think about it, that is actually good or at least no worse than what is published in law reviews already.

Yes, I am talking about the totally made up fantasy article that exists because it just might be true. Maybe Miles Standish and his wife did make a deal with John Alden to benefit John Langmore. And maybe not. The thing is that that is the way all law review articles should be read.  Maybe right and, if so, by coincidence or maybe dead wrong. This is because  most law review articles advocate a position and the sources are carefully selected to appear to  support what is said.  In short, most are just made up with the author blind to opposing views.

In the case of my careful Mayflower work, I am not blind to opposing views. I am open to them and will report them as soon as I make them up.