Part 5, Is There Too Much Legal Scholarship: What Accounts For Too Much of the Wrong Type of Scholarship

 

Part 5  Is There Too Much Legal Scholarship:  What Accounts for Too Much of the Wrong Type of Scholarship?

              A perfect academic storm has created this trouble state. Each facet is a necessary part. They are 1) the self-interest of administrators and professors, 2) the goals of law schools and law professors, 3) the narrow socioeconomic background of law professors and 4) the need to find some indicia of success. First, law professors are as self-interested as anyone else.  Many are ambitious and have the goal of being recognized, praised, and rising through the ranks of law schools. In terms of legal scholarship that means being published as much as possible in the highest ranked law review or by the most prestigious academic presses. It also requires picking the “right” kind of topic which nearly always means something theoretical or empirical. This is not only the way to “get ahead” for the professor,  it advances the reputation of the law school as well.

              Law school reputation is important not just to professors but perhaps more importantly to law school deans who are also self-interested and may define success as moving up through administrative ranks. This impact will be exacerbated by the inclusion of citation counts in U.S. News rankings.  The ranking of a law school is likely to be important to both University officials and law school students and graduates. Possibly the easiest to understand in this group are students and graduates. Employment opportunities and the value of a law degree in terms of earning power are likely to increase as a school moves up in the rankings. Finally, the students who select law review articles are likely to be interested in the ranking of the review which also influences article selection.

              It is interesting to focus for a moment on the role of institutions in encouraging (demanding) writing regardless of the topic or usefulness. This is actually rent-seeking behavior by institutions.  Rent is a term economists use to denote the payment for a resources above the least necessary to draw the resource into a specific type of production. In the case of monopolies. it can be profit. In fact, one of the costs of monopoly is the resources spent by parties vying to become the monopolist. This is rent seeking behavior. The defining characteristic of rent seeking is that welfare, profits, or some other benefit may change hands but the total does not increase. In legal education the competition is not for profits but for rankings. One school’s increase in the rankings means another school’s decline. In short, this competition between schools of which legal scholarship is a critical feature does not increase of overall welfare. Instead, the objective is recognition and any actual benefits are a fortunate coincidence.

There are two more elements of this perfect storm. The first is the socioeconomic background of those who become law professors. The second is a need for a method of comparison or ranking.  People who become law professors come disproportionately from a higher socioeconomic class than most others. They attended elite schools, clerked for judges and sometimes engaged in high level practice where clients are likely to be drawn from the wealthiest segments of society.   Unintentionally they are sheltered.  In simple terms, the universe of topics they are equipped to write about is a narrow one. This is further narrowed by lack of training in empirical analysis.  In one sense they are not well educated.  Articles on constitutional law or obscure contracts issues are far more in their wheel-house than articles on issues of poverty, class, prison conditions, and barriers to the poor.

The  final factor is that any meritocracy or pseudo meritocracy needs a way to determine merit.  The standard has to be something that those ranking can assess and which is viewed as difficult.  I am sure there is disagreement with this but I think it is safe to assume that law professors view theoretical work as more difficult or challenging than work with practical applications or even empirical work. Perhaps this is because of the unfortunate view of law school as comparable to graduate school and the perceived pressure to write at the lofty levels of those in conventional graduate programs.  In fact, a  more rational placement of what is now taught in law schools would be in the form of a jurisprudence department within a college of arts and sciences and a completely separate program dedicated to training those who want to practice law.