Is There a Way Out
of Here? The Research Impact Statement
The short answer is that without of a
complete restructuring of legal education along the lines discussed above, I
doubt it. This is especially true since
law schools and law professors seem resistant to anything that smacks of cost
benefit analysis and the concept of opportunity costs. These ideas are likely
to be threatening because following their logic may mean upsetting the status
quo. Whether or not these concepts are
employed, the reality is that though decisions about funding scholarship are
made, the method of making those decisions seems untethered to any systematic
analysis or specific goals. Perhaps all we can hope for is baby steps toward a
more rational system.
Even baby steps need an objective and
my choice would be to fund legal scholarship that has an actual, articulable,
and rational relationship to benefits of
clients and consumers, broadly defined. Put in terms discussed above, there
should be a justification based on attention to the demand side of the
“market.” Its impact can be indirect but an article that does not start
with an introduction that says, in effect, “clients and others who rely on legal
education or a system of laws will benefit by this effort because” is not worth
the investment.
So what steps could be taken? The
first is to eliminate the assumption that all law professors are entitled to
funding for research. The burden should be shifted to the professors themselves
to make a case for funding. Thus, general rules that everyone receives a summer
grant or has a lower teaching load to recognize their research obligations
should be reversed. To use a common phrase --
research support should be a privilege
not a right that automatically follows from being employed by a law school.
Each professor desiring to do legal
research should submit a “research
impact statement” which notes the benefits, the research methodology,
hypotheses to be tested, time schedule. The decision makers should view the
process as a competitive one. This is not only competition with other
professors but with other uses of the desired funding. The most obvious
possibility is additional teaching obligations.
Clearly
this leads to the issue of how the decision to fund is made. Ideally it would
be a committee composed of a law school dean or associate dean, a high ranking
student, a member of the bar, and the faculty. Proposals would be made to this group and
viewed in the context of other possible uses of the professor’s time or other resources
used to support his or her efforts. Returning to the market analogy noted
above, professors should be required to
identify the demand (or need) even though it is not one actually expressed in
the market.
In closing I concede that a
limitation on this analysis is that I
have not addressed the problem of law reviews themselves. After all, law
reviews are the most direct demanders of legal scholarship and the
proliferation of reviews has just intensified demand. In theory, they should be
viewed as and act as middle men. Their demand should be what economists call
derived demand – it should be based on the demand by consumers and users of
scholarship. There is little sign that this is the case.
In fact, as demanders of legal
scholarship, law reviews exhibit a bias for institutional authority as opposed
to reflecting the needs of readers and society more generally. Greater selectivity
based on the actual needs of readers as opposed to what well credentialed
authors choose to supply would be a more than a baby step. This does not,
however, solve the problem of too great an investment in legal scholarship. In
fact, the existing level of scholarship would likely redistributed from one
review to another. On the other hand, knowledge that reviews are attentive to
actual need could redirect resources for scholarship, much of which is just
self-indulgent, into paths with greater value to readers.
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