May 1, 2013 by Tamara Piety
This is part two of what will be at least a 3-part series. Its connection to the commercialism and commercial speech questions which are the focus of this blog are complicate. First, the value proposition of law school is being questioned in a number of quarter – some discussions are more civil than others – but the bottom line is that legal education, like much else in our society is being view through a consumerist lens. Students are often treated as if they were consumers or customers whose expectations must be met. A number of for-profit law schools have opened, increasing the pressure on all institutions of higher learning to behave in some ways more like businesses. And it appears that there was a bubble in “the market” for legal education, a bubble which has burst in the face of the high cost and fewer jobs, many at lower pay.
These are all very complicated issues and I can’t address all of them. However, one aspect of the concern about the value proposition has been whether tuition increases are attributable to law professors engaging in scholarship and, relatedly, whether legal scholarship, at least that published in law reviews is worth anything. Many people would say not.
My first post in this trilogy (and it may end up being longer than that) was meant to raise some very modest objections in defense of both the practice of scholarship and it value pointing out that actually it may be very, very difficult to get good numbers on its worth both because it often is not cited, despite being influential and because there is often an extremely long time horizon for its influence to play out. It seemed to me some skepticism was warranted about whether the rather large figures being bandied about concerning how much it “cost” to produce a law review article which no one read, had any foundation. What follows is the second installment in that discussion which first appear on The Faculty Lounge.
A good debate is always worth having, but the majority of the comments responding to my last post on this subject appear to have been responding to arguments I did not make. I appreciate that other people think the question I ought to have discussed is “What is the cost of producing legal scholarship?” or “What is the proper balance of scholarship to teaching?” However, those were not questions I was attempting to raise.
Nor was I attempting to suggest, in Panglossian fashion, that we currently enjoy the best of all possible worlds in legal education or that I was indifferent or unsympathetic to the problems so many law school grads have finding jobs. On that matter, see this great post from Adam Levitin The Legal Employment Market (As an aside, with respect to many of the suggestions commonly made, both in the comments to my post and elsewhere, about what law schools ought to do, Tulsa has been doing many of them for several years. These include: reduction of class size, holding down tuition costs, introducing experiential learning opportunities, etc. And our employment numbers have been comparatively good for what is without a doubt a terrible market. Again, I do not say that to suggest that everything is great or that there are other reforms that we or other law schools might undertake. But that is not this post.)
Instead, I was actually trying to make a relatively narrow and I think pretty unassailable point: It is very difficult to measure the “utility” (or cost) of scholarship where (a) the time horizons for its effects to be fully felt can potentially stretch out so far, and (b) where citations are not a reliable metric for assessing the impact of a piece of scholarly work.
Some readers clearly don’t agree with this proposition. However, I invite those in doubt to read the Redish article I cited and compare it to the Virginia Pharmacy decision and decide for themselves whether it appears that the Redish article influenced the Court’s decision. I think it did. Most knowledgable observers think it did. It was not cited by the Court [point (b) above] and yet it clearly had an influence on the Court and everyone who knows anything about the commercial speech doctrine knows that the theory advanced in this article, which was so outside the mainstream at the time that the late, great Thomas Emerson devoted only a few paragraphs to commercial speech in his book “Toward A General Theory of the First Amendment” the year before, now represents, some 30 years later, the dominant view of commercial speech as reflected in recent judicial opinions [point (a)].
Of course this is but one example. I offered other examples gleaned from my experience and from suggestions which came from others. Those examples lead me to suspect there are more and that at the very least this phenomenon ought to give one pause before making snap judgments about scholarship’s “worth” as a global matter or about how much is the right amount to invest in it.
Since I wrote that initial post I have recieved several new examples from others – some relating to influential student pieces; and since at some reviews student authors are anonymous, this adds an additional complicating factor for tracking influence. No less an authority than Judge Kozinski has observed, “Published student papers can also be quite useful and influential in the development of the law. A few law review notes and comments become classics cited widely by lawyers, courts and academics.” (This quote is from the foreward to Eugene Volokh’s Academic Legal Writing which is an invaluable resource btw, for writing law review article – for students and faculty alike – and no, I’m am not being paid to say this).
Judge Kozinski goes on to note that (in his opinion) “most” student articles are not influential. And who can argue with this? Whether it is “most” though an empirical question. I rather hope that professor’s articles have a better track record for influence than student pieces, but I don’t know that this is true. I’ve given examples and reasons for thinking that it might be difficult ex ante, or even at publication, to determine what proportion of legal scholarship – from whatever source – is “useful.”
Notice, my claim is not that all scholarship is inherently valuable, nor that some “x” quantum of work needs to be produced in order to generate such useful scholarship. It is a claim that one ought to perhaps be cautious before concluding that “most” scholarship is worthless or that its worth pales beside the cost to students of producing it. Maybe. But maybe not.
I have no idea how much subsidy we ought to give scholarship to produce good work or whether the current amount is enough or too much. But I think is far from proven that the cost of producing these articles is “immense” as Ralph Brill suggests. I don’t think reduced teaching loads are that common outside of the top twenty law schools. And I have no idea how many people you need working, for how many hours, to get good work. (I know my own knowledge about the commercial speech doctrine has taken years to acquire and involved a lot of help from a great many research assistants.) And while it is true that many of the examples I listed involve famous legal scholars, they didn’t all start out famous. And not all influential articles have been published in top 20 law reviews. If you don’t believe me, check it out for yourself. You don’t have to find very many counter-examples before you have reason to doubt whether the metrics being proposed for how to identify what constitutes useful or worthwhile scholarship, or whether scholarship has any value at all, pose problems because worth is a difficult thing to measure.
Again, I make no claim about the proportions, although I notice most critics have no hesitation about tossing off empirical claims about how “most” legal scholarship is not influential. I am willing to assume for purposes of argument that this is true. Still, since we don’t know ex ante how much scholarship needs to be produced in order to generate “the good stuff”; and we know that relying on the status of the institution or the scholar to determine who ought to get support would be a form of hindsight bias and would rely on the signaling function of the prestige of the law review or the author to substitute as a measure of quality, we have a problem calculating that figure. We know that status already matters a lot, but I daresay some of the articles which caught the negative attention of the critics like the Chief Justice appeared in these very prestigious publications or from well known authors. So prestige, like citation counts, may be a blunt and unreliable instrument for judging worth or quality.
But here we come to another hot button. And this too comes out in some of the comments. One gets the sense that what bothers some critics is the subject matter. (Some of the commenters seemed determined to confirm this suspicion). The usual suspects are anything having to do with feminism or critical race, or perhaps critical approaches generally. Whatever one’s feelings about feminism or sexual harassment as a cause of action, Catharine MacKinnon’s “Sexual Harassment of Working Women” has been cited by at least 40 courts. Litigants can now sue for an injury that didn’t have a name before. And of course those litigants have lawyers.
Like it or hate it, no one can deny that works like these and many more influenced the law, gave work to lawyers and therefore had “utility” if by “utility” we mean that it was relevant for litigants. I suspect that was not how much of this work was viewed when it was first published.
Similarly, Charles Lawrence’s “The Id, The Ego & Equal Protection: Reckoning With Unconscious Racism,” 39 Stan. L. Rev. 317 (1987) has 16 judicial citing references on Westlaw. (It has been cited hundreds of times in treatises and other law reviews). Some courts found his work very persuasive indeed, even if not all others have agreed. So the claim that CRT or feminism is somehow inherently lacking in merit simply betrays the normative commitments of the critic. If “merit” = “influence” both theories have had a great deal of influence in the courts and in society at large.
If you want to argue about whether these offerings have made net positive contributions to law (and I think they have), that is a different point than the one I am offering here.
Coming up in future posts: Is the dollar cost of producing scholarship really so great as some propose? And, if scholarship is so despised and useless, why does it appear that law firms and interest groups are paying to produce it? Do we really want to go to a system where the only funding for scholarship comes from those who want to use it promote a particular agenda?