Friday, February 10, 2012

Do Legal Scholars Do Anything Important?

-- Posted by Neil H. Buchanan

Last month, I posted some thoughts defending legal scholars who do not write articles that are useful to judges. Apparently, up until about the 70's or 80's, judges could look to law reviews to find analyses of pressing doctrinal issues, using the work of law professors to advance the work of the judicial system in developing the law. Over the last generation or so, however, legal scholarship has become mostly non-doctrinal, developing into a much more classically academic enterprise that is more theoretical and less useful for (and generally not even addressed to) judges.

As part of my analysis, I noted that my own scholarly writings have been focused on suggested statutory changes, making it potentially helpful not to judges but to legislatures. A tax professor at another law school pointed out on the comments board -- quite correctly -- that it is nearly impossible to argue that members of Congress or their staffs are reading law review articles (and, I readily add, certainly not my articles) to find good legislative proposals. Because that is true, my defense of legal scholarship might have been incomplete. With thanks to my colleague, I will use this opportunity to extend my analysis in two ways.

First, I readily agree that law review articles are not the primary transmission mechanism for communicating academic ideas to sitting legislators. It is possible, I suppose, to imagine the VERY occasional law review article that happens to catch the attention of a key congressman or staffer, but I know of no such examples. The lines of communication between law professors and Congress, if they exist at all, will likely be based on shorter policy pieces (especially op-eds) and Congressional testimony.

The question, then, is whether this means that law review articles serve no purpose, or are of sufficiently low value that we are wasting our time. My sense is that the process of thinking through issues carefully and in depth, in the way that is necessary to write a good law review article, leads to ideas that ultimately show up in op-eds and Congressional testimony. Sometimes, the process is iterative. For example, my on-line writing about the debt ceiling last summer induced me to think through a pressing policy issue, which then led me to co-author a law review article with Professor Dorf. After that article is completed (soon!), we will surely engage in further debate here on Dorf on Law and elsewhere, in a way that might (but is surely not guaranteed to) have an impact on the policy debate.

One never knows how much impact one particular blog post, law review article, or other individual piece of work has had, which means that the better way to think about the value of academic discourse is as a collection of high-risk/high-return bets. Even if a huge amount of writing cannot be tied directly to policy innovations, we might not have developed some important ideas without having gone through all of the ideas that did not catch on.

I do not know how to quantify this. Surely, there is a point beyond which even high-return outcomes are outweighed by too many clunkers, but I am at least willing to argue that the American legal academy is currently pulling its weight as an institution for generating ideas that can lead to policy improvements.

Second, I acknowledge that my first argument does not defend the most theoretical work being produced by law professors. Even though many law review editors view my work on budget deficits as highly theoretical, in fact my work is not designed to push theoretical boundaries. Generally, I rely on well-established (among economists) macroeconomic ideas in developing proposals for very real-world policy options. If my work is extremely practical in this way -- even if it is not being read in the original by any member of Congress -- then what can we say about the work of law professors who are not writing about specific legislative or administrative proposals?

One recent strand of theoretical literature in the tax area involved a debate over whether an "ideal" consumption tax would be better than an "ideal" income tax. The debate, carried out in law reviews over the space of a year or so, was explicitly acknowledged to be ignoring real-world implications. Even so, the stakes in the debate were quite high. If the pro-consumption tax argument won the theoretical debate, then it would be necessary to discuss whether real-world concerns might nonetheless make it unwise to try to replace our current hybrid income/consumption tax system with a system that only taxed consumption. If the anti-consumption tax argument won on the theoretical level, on the other hand, then there would be no need to move to the practical level.

As it happens, I think the anti-consumption tax side won that debate. Even if others disagree, however, the point is that a scholarly debate that never came close to discussing real legislation could still be enormously important to the direction of tax policy.

Even outside of tax policy, moreover, seemingly esoteric arguments can have very important affects on real-world policy. Professor Catharine MacKinnon's work on sex equality -- work that was in the first wave of non-doctrinal scholarship among law professors -- led rather directly to the development of sexual harassment law. Although I think of that as an extremely positive development in American law, even those who disagree must admit that MacKinnon's work changed real people's lives, through both legislative and judicial processes.

By contrast, many have noted the surprising lack of impact on the law that we have seen from the large body of literature on law & economics. The marriage of law with a supposedly practical subject like economics initially seemed like a sure-fire way to move the law forward, but the payoff has been surprisingly small (with some greater successes in specific areas, such as antitrust law). Again, however, we are talking about legal scholarship that did not necessarily help judges shape their written opinions in decided cases, but that did have at least some effect on the real world through the law.

It is always possible to point to particular articles or scholarly agendas that do not bear fruit. Some of them should not be pursued, and the legal academy (like all other areas of academia) has imperfect processes in place to reward better work and punish poor work. Improvements in those processes are always welcome. I am confident, however, that legal scholarship can be practical without being helpful to judges, and that it can be important without being practical.

19 comments:

Michael C. Dorf said...

An illustration of the general point that the most theoretical work can be profoundly important: The emergence of legal realism in the early 20th century was largely ignored by courts, even though two key proto-realists--Holmes and Cardozo--were also the leading jurists of their age. But over time, legal realism changed just about everything, from the Erie doctrine to doctrines of judicial restraint in constitutional law, to the post-realist synthesis known as the legal process school, which dominated legal education and judicial thought for a generation. It may be hard to point to the direct influence of any particular legal realist article but the project as a whole was enormously influential.

Bored 3L said...

Hey Mike,

What was tuition+COL at law schools in the early 20th Century? How many of those students took on non-dischargable, 7.9% interest rate debt for the benefit of the legal realists?

You guys really think this is still about your scholarship and articles, your casebook method and issue-spotter exams? This is about students coming out of law school with 150-200K in non-dischargeable high-interest rate debt and a no job, or a job paying 40-50K which makes it impossible to service that debt. That's the norm now. Is it still worth it?

Lois Turner said...

Churn out as much of your worthless non-peer-reviewed "scholarship" as you like, but find some way of paying for it other than scamming kids.

Michael C. Dorf said...

My first comment on Neil's post said nothing about how or even whether legal scholarship ought to be funded. I was only observing that legal scholarship has made an enormous difference in the development of the law. It is possible that legal realism would have developed outside the legal academy in a world without law schools. It's also possible that nowadays legal scholarship soaks up more money in cost than value it produces--although here, as in the liberal arts, much of the argument would be about defining value. As I have said before, if legal scholarship (or basic research in any other field) is not worth paying for, then it should not be paid for by any means. If it is worth paying for, then there is no necessary reason why it should be paid for from tuition rather than government grants, foundation grants, or other sources. Earlier posts at:

http://www.dorfonlaw.org/2011/11/new-york-times-is-shocked-to-discover.html

and

http://www.dorfonlaw.org/2009/04/future-of-universities.html

I take Neil's broader point to be that mixed in with quite legitimate complaints about lack of transparency and cost are all sorts of red herrings that may or may not be valid, but really would not be coming up now were it not for the understandable frustration of law students and recent graduates with the job market, their debt load, and the complicity of their alma maters in creating their unfortunate circumstances.

The other points might have validity, even if they really have nothing to do with the core economic complaints. An example is Lois Turner's claim that non-peer-reviewed work is worthless. Both Neil and I have published in peer-reviewed journals and university presses. We have both served as peer reviewers as well. And we have also both published in student-edited law journals (many of which now include blind faculty review in the selection process). I can't speak for Neil, but speaking from my own experience, I find that there are advantages and disadvantages to both processes, and much could be said about this. But the arguments would have little to nothing to do with the underlying economics of the relationship between the teaching and scholarly missions of law schools and universities.

Bob Hockett said...

I can't say anything that Mike and Neil have said more effectively than they've both said it. As another who's published both in 'pure' peer-reviewed journals and in more quasi-peer-reviewed, student-run law reviews, however, I heartily join in the judgment that both sorts can be dreadful, both sorts can be great, and both sorts can be all things in between. I'm often tempted to analogize the values and disvalues at play here to those that are implicated by vindication of the first amendment. In both the latter and the student-edited journals, for example, allowing lots of chaff to get through seems effectively to be the cost associated with enabling a fair amount of great grain to be sown and grown. The flip-side CBA applicable to 'purer' peer-reviewed journals, for its part, requires that we note that sizable numbers of really great 'game-changing,' ground-breaking work is screened out by established folk who sometimes end up doing nothing better than perpetuating stale methodological orthodoxies well in need of 'reset' buttons. Seems to me we ought accordingly be glad that we've got *all* the sundry kinds of journal that we find out there.

Bob Hockett said...

I can't say anything that Mike and Neil have said more effectively than they've both said it. As another who's published both in 'pure' peer-reviewed journals and in more quasi-peer-reviewed, student-run law reviews, however, I heartily join in the judgment that both sorts can be dreadful, both sorts can be great, and both sorts can be all things in between. I'm often tempted to analogize the values and disvalues at play here to those that are implicated by vindication of the first amendment. In both the latter and the student-edited journals, for example, allowing lots of chaff to get through seems effectively to be the cost associated with enabling a fair amount of great grain to be sown and grown. The flip-side CBA applicable to 'purer' peer-reviewed journals, for its part, requires that we note that sizable numbers of really great 'game-changing,' ground-breaking work is screened out by established folk who sometimes end up doing nothing better than perpetuating stale methodological orthodoxies well in need of 'reset' buttons. Seems to me we ought accordingly be glad that we've got *all* the sundry kinds of journal that we find out there.

WklsortbyQs said...

You guys like to pretend your job is to produce scholarship, but what you're really selling, like it or not, is opportunity. That's why kids are financing to the tune of 100k+ to attend your schools. Sure there's value in knowledge for knowledge's sake, and that value may take a very long time before it percolates through outside academia. But Rome is burning folks! Costs and benefits are inextricably linked. So "observing that legal scholarship has made an enormous difference in the development of the law" is not going to cut it if to repeat that history we will require an army of debt zombies to make it happen again.

Shark Sandwich said...

This isn't a question of whether law professors do anything important. You're using this broad question to try to rally all the academic freedom types to your defense.

The issue is whether or not you should be paid so damn much for your job. You can't expect to do something totally impractical and get paid a lot for it.

Medical and Business professors do practical work, and make a lot of money. Liberal arts and social sciences professors do impractical work, and don't make all that much.

Law profs are closer to humanities profs. You are in the waning days of high salaries. If you were teaching five classes a semester, grading four-five papers/essays per class, and only making 60 k a year to do it, not a lot of people would be asking whether you were doing anything important. Nobody would care. Just like our charmingly out of touch professor of Shakespeare, you would be flying under the radar on a low salary.

Paul Scott said...

" You can't expect to do something totally impractical and get paid a lot for it."

In what way are professional sports, acting, writing, etc., "practical?"

Your idea that remuneration generally tracks "practicality" (whatever you might mean by that) is, to put it nicely, misguided,

Shark Sandwich said...

Money and practicality pretty much go hand in hand. That's why society tells young people to go to law school instead of following other dreams. You can make more money. It's more practical.

What practical use are most law professors articles, Paul?

Bored 3L said...

"In what way are professional sports, acting, writing, etc., "practical?""

Most actors, writers, and even professional sports stars make very little money (try being a career minor league baseball player). The ones who are at the top of these professions make millions- because they generate tens or hundreds of millions in revenue for their investors and entertainment value for the public.

Law schools are funded largely with taxpayer guaranteed loans that have to be repaid by kids in their mid-twenties. If law schools had to operate by private sector rules (notably no federal guarantee and loans dischargable in bankruptcy) it would spell doom for many high cost private law schools with iffy employment prospects (perhaps even GW). It's absolutely the public's business whether those students can repay the loans in a timely manner. If they can't, law schools may have to get their funding somewhere else (and good luck convincing the government or a private foundation to fund 95% of the law review articles published today.)

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