Saturday, May 18, 2024

Part 6: Is There Too Much Legal Scholarship: The Research Impact Statement


 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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