Part 4: Is There Too Much Legal Scholarship? Justifications for Legal Scholarship

 Part 4: Is There Too Much Legal Scholarship?

 Justifications for Legal Scholarship

There are many arguments in response to the position that there is too much legal scholarship.  As noted above, one of those justifications is based on the public good character of legal scholarship. That argument falls short for the reasons discussed above. Other justifications are addressed here.   I think it is not controversial to say that any justification must, at its core, be an argument that the investment in legal scholarship creates more benefits (however measured or defined) than costs. None of the arguments addressed here seem to come close to that standard.

1. Faith Based

One argument  is what I would call “faith based.” It goes something like this. “Law review articles are important as a way of communicating with other professors and people outside the profession.”  (Robin West) A recent version of this plea is, “If we forgo this work, our worlds, not only the legal world, but our social and cultural and political worlds, will be the worse for it.” (Robin West)   Both arguments are hard to refute since both are non falsifiable.  They are also ironic.  The norm in legal scholarship is to cite authority for every declarative statement . These assertions, however, evidently need no support because they are just “truths.” No rational – a term I understand is disfavored by the “normative scholars” -- system of resource allocation would permit an expenditure as large as that devoted to legal scholarship without some requirement that the proponents produce proof of results.

2. Cherry Picking

Many people, when they hear an objection to the level of investment in legal scholarship, reel off the titles of five or six classic articles. I suppose the logic is that if  some articles are worth  $30,000 or more then all articles are worth $30,000. Of course, those who make this argument, and who should know better, fall into the fallacy of composition. There is no reason to suppose that because some of the articles are successful then they all must be. This is probably best known by all those who do laboratory research or prospect for minerals or energy sources. One successful experiment is unrelated to the success of others and one productive oil well does not mean all others are equally productive.

3. The Posner Argument

Citing a handful of articles for the proposition that the current level of investment in legal scholarship can make sense if there is a connectedness between those articles and total expenditures. Returning to the laboratory idea, the argument could be that each article is itself an experiment. We know ahead of time that they cannot all produce useful outcomes but we must do all of them in order to discover the important ones. This is essentially an argument made by Richard Posner who likens law review articles to salmon swimming upstream. Since we do not know ahead of time which ones are going to achieve their goals, we must let all of them try in order to ensure the strong ones do make it.

This is an appealing argument for salmon but not for law review articles. First, salmon swimming upstream do not ask to be subsidized by others.  The cost of their effort is entirely internalized by each one attempting the trip. This is hardly the case of any law professor. Second, there are few, if any, opportunity costs of allowing salmon to give it a try.  In the case of law review articles, something that constitutes a better use of the funding may be neglected.  Plus, the law review salmon are hardly trying to make it up the same stream. We know that, no matter how powerful their swimming is, professors at lower ranked schools with non elite credentials are unlikely to be cited in a meaningful way.  In fact, there are likely to be other indicia of articles that are unlikely to enhance social welfare. Unlike salmon, we can examine the project before it sets out on its journey and, in light of opportunity costs, we can determine that the expected value of some is not worth the sacrifice. Yes, it is true that this amounts to playing the probabilities and risking what might be called false negatives – published works that are not beneficial. Given the huge opportunity costs, not to weigh this possibility against the demonstrable instances of false positives seems irresponsible and quite different from allowing all salmon, who have nothing to lose, to attempt to make it upstream.

4. Academic Freedom

The argument can be made that limiting the support for legal scholarship interferes with academic freedom. Funding one project or even limiting funding limits a law professor’s “right” to express him or herself.  This confuses freedom of expression with funding. Law professors, especially those with tenure, generally have freedom to express themselves without fear of reprisal. This does not equal a right to have that speech subsidized. If that were the case, then it would be an attack on academic freedom not to excuse professors from meeting class, attending faculty meetings, and all other activities that limit the time available for “expression.”

This particular concern should not be completely discounted. Suppose there is limited funding available for summer grants. Grants are made on a competitive basis by a committee whose job it is to prioritize the proposed projects. They are prioritized based on “importance to society.” Many areas in which law professors write are controversial and political in nature. Thus, in the hypothetical, suppose the following proposals receive support: Up With Whales, Affirmative Action for All; Higher Wages for Women; Protecting our Children from Abuse. The project denied support is “Reviving Ojus.” (Ojus is a tiny town north of Miami.) Surely, the professor proposing the last project will feel he was discriminated against based on his topic.  In a sense, the argument could be made that there was a reprisal by virtue of unequal funding. This may or may not raise issues of academic freedom, but the notion that everything a law professor desires to write at a cost of $30,000 per article will be permitted hardly seems like a necessary cure. Just as schools have no obligation to offer courses for which few enroll, universities are similarly unlikely to be required to fund projects with little or no promise in terms of readership or usefulness. Even if the academic freedom argument has some purchase, a response superior to unlimited writing may be to redefine the contours of academic freedom.  

5. The Law Review Experience

              One explanation that has a cart before the horse or tail wagging the dog character is that legal scholarship exists so that students will have the valuable experience of operating a journal. They surely do get research and writing experience. Aside from ignoring opportunity costs, the argument falls short for other reasons. Precisely why is this experience reserved for students who have made high grades or survived a writing competition? In effect, it appears the experience is reserved for the student least likely to benefit from it. In fact, a sincere effort to improve research and writing skills would hardly involve producing a legal publication that entails many activities that are menial and hardly enriching.