Saturday, March 19, 2016

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.

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