Monday, November 21, 2011

New York Times is Shocked to Discover that its Reporters Cannot Understand Law Review Articles They Haven't Read

By Mike Dorf

My latest Verdict column addresses the question why amicus curiae briefs by scholars speaking on their own behalf have proliferated in recent years.  The column was occasioned by a recent NY Times piece that discusses a new article draft by Harvard's Dick Fallon, in which Fallon complains about such briefs and sets out his own criteria for signing on.  I figure somewhat uncomfortably prominently in both the Times story and the Fallon article, and so I thought it was worth acknowledging that I believe I am treated fairly in both.  I use the column as the occasion to pivot to a somewhat different question: Why have scholars' briefs proliferated?  My answer, in part, is that legal scholars have been getting the message from judges and Justices that they don't read our scholarship, and so we've tried to repackage it in briefs.

I said all I want to say right now on that topic in the column, so here I'll pivot again to another issue I raise in the column: Is the current model of legal education unsustainable?  That issue is more or less raised in another recent NY Times story, this one appearing on the front page of the Sunday, Nov. 20, 2011 edition and written by David Segal.  Segal gives voice to a common complaint, one that has been aired by the profession and considered by the legal academy itself for the last couple of decades: that law school does not in fact prepare students for the practice of law.  As we approach the 20th anniversary of the ABA's MacCrate Report, one might ask why this particular concern warrants raising now.  (On Prawflsblawg, Matt Bodie has a nice critique of the Segal story, including comments that show just how old this meme is.)

The answer may be obvious: It's the economy stupid.  In this view, law school affects a transfer from law students to legal academia, which, in turn, is subsidized by the law firms that pay the salaries of the law school graduates.  The system worked well enough when BigLaw was a booming business and so could write off the costs of subsidizing legal scholarship as more or less a rounding error, but with clients now pinching pennies and thus law firms strapped for cash, students can't assume that they'll be able to recoup the full cost of their legal education.  And, this story goes, law schools should therefore start delivering a cheaper product, one that does not include a subsidy for legal research.

That's the story, anyway, but it only makes sense as a normative tale if one assumes -- as the Segal article pretty clearly does -- that legal scholarship is basically a waste of time.  Otherwise, one would want to lament the possible impending loss of the subsidy for legal scholarship in the same way that we might worry about the loss of a subsidy for useful research in other fields.

I'll return to the utility of legal scholarship in a moment, but first it's worth asking how university research, in any field, can be funded.  The chief sources are: government grants; foundation grants; industry grants; endowment, which is mostly the product of alumni donations; and tuition.  Government grants and foundation grants are vulnerable in tough economic times.  Industry grants are too, and even in flush economic times, industry-funded research can be problematic because of the (understandable) tendency of industry to fund one-sided research.  Endowment sources are also vulnerable in an economic downturn because conservatively invested endowments earn less (as interest rates fall) while aggressively invested endowments actually lose value.  Meanwhile, alumni earning less money donate less money.  Accordingly, if the contribution that tuition makes to university research were to diminish because of tough economic conditions, those same tough conditions would likely prevent other sources from picking up the slack.

So is that a loss?  I certainly would not want to defend all university research or all law school research as contributing to the store of human knowledge, but as I have said before, I think that research universities are, on the whole, a nearly-miraculous set of institutions.  And I think that's broadly true for law schools too.  Consider that for a little over a century, the signal contribution of American legal academia has been various incarnations of legal realism -- which shows how the formal materials and arguments invoked by courts and other legal decision makers play a substantially less central role in their decisions than they profess.  Such scholarship promotes democratic deliberation by exposing judicial and other decisions to critical scrutiny.  Legal scholarship also points out where legislatures, agencies, and courts have erred or could do better.  Even the theoretical work so readily dismissed by Segal and others can, over the long run, be enormously influential.

I suspect that were Holmes writing The Common Law or The Path of the Law today, his deep observations would be discounted by the know-nothings as trafficking in useless generalities.  Most academics are not Holmesian paradigm shifters, of course, but even the "normal science" produced by the rest of us can, over the long run, advance our collective understanding.

None of this is to say that Segal and others are entirely wrong as a descriptive matter.  The revenue models of law schools may indeed have to change if the changes we have seen in legal practice turn out to be permanent.  But one can recognize that possibility and note that the resulting loss of scholarship would be a real loss to the law and to society, not just to rent-seeking law professors.

The late Wisconsin Senator William Proxmire used to denominate annual "Golden Fleece" awards to what he regarded as wasteful government spending.  Some of the budget items he identified were indeed wasteful, but over the years Proxmire also had a tendency to trash legitimate science simply because he didn't understand what the government-funded projects aimed to discover.  One expects that sort of grandstanding from politicians.  What is most distressing about the last several decades of attacks on legal scholarship, including their recent intensification, is that so much of the hyperbole comes from people who ought to know better.