Part 2: Is There Too Much Legal “Scholarship”?: A Quasi Economic Perspective
The Author and the Audience: Supply, Demand, and Public Goods
One methodology for determining whether too much or too little is
produced is to rely on supply and demand. For a number of reasons, a
traditional economic approach is not appropriate for legal scholarship. Still, there is a central aspect of supply
and demand that is directly applicable. In a market in which supply and demand
are operative, there is an interdependence. Suppliers are responsive to demand.
In the context of legal scholarship, this leads to the question of to what
legal scholars are responding.
For the
most part, legal scholars write (supply) because they want to be noticed, they
have tenure requirements, they have a
sense of obligation to continue being productive, or they love the process and
have a desire to express themselves. Legal scholarship may be a reaction to all
of these factors at various times. What is remarkable is that none of them are
driven by demand in the sense of the benefit to others. The notion of
interdependence is lacking. If fact, the “demand” for legal scholarship is
based on the needs of suppliers –
like General Motors demanding more Chevrolets.
This does not necessarily mean that there is a
surplus of legal scholarship. It does indicate that supply is disconnected from
any meaningful measure of the value or usefulness of what is produced. In fact,
legal scholarship largely exists to satisfy the needs of the writers,
regardless of the external impact. In
this sense law professors are both the audience and the actors similar to a
company of actors that only perform plays for others in the company.
There is
an economically-based argument that may seem to respond to this analysis. It is
based on the idea that legal scholarship is a public good. Consequently, it will be undersupplied unless
subsidized. Public goods are ones that can be used by others without payment to
the producer. In addition, they can be
used without interfering with the use of others. The argument for subsidization is based on
the idea that producers of public goods are unable to internalize the benefits
of their efforts and, even though there are benefits, suppliers will not have incentives to produce. There is,
however, an implicit interdependency. Public goods are produced because of a
demand that does not manifest itself in the market.
When it comes to legal scholarship, arguments
based on a public good rationale are weak and fall victim to faulty logic. There is nothing about the classification of
something as a public good that also means production must or should be
subsidized. To understand this, consider that public goods include everything
from a kindergartener’s sketch to a
poorly written screenplay and a truly evocative oil painting. The critical
question before subsidization occurs is whether there is a latent demand for
the good. One has to reach outside the
technical public good classification to justify the subsidization of legal
scholarship at current levels. If the public good rationale were enough, we
would, in fact, build highways for a handful of drivers.
Reliance on the public good rationale
may be inapt for another reason. The
fact that producers cannot internalize all
the gains from their efforts does not mean a good will not be produced if enough
of the benefits can be internalized to make the effort worthwhile. The question, then, is whether some or even a
great deal of research would take place even if not subsidized. For example, in a billion dollar antitrust
case or securities case, a law firm is not going to stand idly by in hopes a
law professor will do the necessary research. In fact, the most useful legal
research likely involves issues in which benefits cannot be monetized and the
market is unlikely to produce the necessary research.
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