Part 3: Is There Too Much Legal Scholarship: The Costs and Qualities of Legal Research

 Part 3: Is There Too Much Legal Scholarship: The Costs and Qualities of Legal Research

              Before examining arguments in support of legal research at current levels, it is important to be specific about what is being defended both in terms of costs and quality.

1. The Cost of Legal Scholarship

Legal research is expensive. One, probably conservative, estimate is that each article produced costs $30,000.  This figure is based on a series of assumptions. Readers are invited to alter these assumptions and determine their own average cost figure. Thirty thousand dollars is likely to be low because this estimate does not include law review publication costs, submission fees, secretarial expenses, or any allocation of fixed costs. In addition, it is based on the assumption that the 8000 law review articles published each year are the result of the efforts of law professors. If some of the 8000 are published by researchers who are not supported by law schools then the average cost for law professor produced articles increases. On the other hand, it could be lower. The 8000 articles does not account for books, casebooks, and refereed journals.

Costs may be better understood in terms of opportunity costs, real or hypothetical. For example, the average Habitat for Humanity house costs $85,000. In effect, three law review articles are more expensive to produce than a home for a low income family. Obviously there are commensurability issues with this idea – both in theory and in practice.   First, there is no way, as far as I know, to actually compare the value of housing with the value of law review articles. Second, even if we stopped funding legal scholarship today, housing may not be a realistic opportunity cost since funds, at least in the short run, would not be automatically shifted to increased housing for the poor. 

There is, perhaps, a comparison that we can relate to a little better.  The average law student graduates with about $140,000 in debt or, in scholarship currency, about 4.5 articles.   Based on that number, the investment in legal scholarship is the equivalent to 1700 students per year graduating without debt. So, is it worth it for a student be saddled a modest mortgage-sized debt so 4.5 more articles can be written?  That depends on the articles lost but as suggested below, the loss would not be noticeable.

Student debt is not disconnected from other issues. The need to pay student loans means that students are less likely to be able to afford the salaries of public interest work and low paying jobs that may serve the less affluent. Perhaps it is a leap, but the high cost of legal education, part of which is attributable to the scholarship requirement, may actually have an impact on those who need but cannot afford legal services. To some this may be strained reasoning but clearly it is no more strained than a topic discussed below that runs along the lines  of “we just know the investment in legal scholarship is worth it” or “we know it is worth it because Kingsley’s article on retribution had a major impact on punishment theories.”

2. The Character of Legal Research

The high cost of legal research would make sense if there were clear evidence that the level of investment was offset by the importance of what is written. The key notion is “importance,” which, for this analysis, is independent of the care or quality of effort that went into the production of the scholarship. Although this is impossible to determine with any level of certainty, there are general and empirically verified characteristics of legal scholarship that cut against its relevance, at least at current levels. Without conceding that citations are a measure of usefulness, it is not unreasonable to surmise that citations are at least a rough measure of exposure. What we know is that citations are correlated with the ranking of the law review in which the scholarship appears, the ranking of the school at which the author teaches, and the ranking of the school from which the author graduated. Unless one equates these indicators of institutional authority with the usefulness of a work and then equates usefulness with frequency of citation, there is little evidence that the current investment in legal research is warranted or that citation counts should have any bearing on law school rankings. In fact, it suggests that even the most important and useful articles may not be found and relied upon because they are buried in very low ranked reviews or secondary journals.

Even if one were willing to take these leaps of faith, there is another possibly more disconcerting problem: It does not appear that authors citing other authors are really responding to or elaborating on the ideas of the original author. In fact, the most frequent type of citation is one that cites a prior author for a factual assertion. This may be driven by the requirements of law review editors but still there are remarkably few citations in which one author considers, debates, or builds on the ideas of another.