The Economics of It All (with some funny numbers)

Ok. So Michael’s gone to the heart of this business: what’s going to happen with the legal profession and how will that affect law schools? (I was going to write how will law schools respond, but I think that implies more agency on our part than we’ll have. The profession is going to dictate to us what we’ll do.) As the profession becomes more stratified and there is relaxation of rules about practice by non-lawyers, how will that affect the economics of legal education? Are those changes already upon us?

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A Focus on Quality of Scholarship, Rather than Placement

Ann Bartow has one solution to the obsessive focus on placement of articles: have faculty publish in their schools’ law journals. Pretty interesting idea–and that’s sort of the way things used to be, where the a review published the work of the school’s faculty and students (and some others, too). Reviews from the 1920s and 1930s had a ton of “home cooking.” Then again, law reviews publish a lot of their faculty’s work today, too!

One thing I’ve been thinking about is the need to focus on the quality of scholarship, rather than its placement. Here are some interesting data points on this score. Last summer a terrific r.a. (Joseph Sherman) looked at the citations to articles that appeared about fifteen years ago in about a dozen leading law journals. We looked at some of the very most prestigious journals (Harvard, Yale, Columbia, Chicago) as well as some of the other elite (Vanderbilt) and some of the other terrific journals (Indiana, Wisconsin, Hastings). The idea was to see how individual articles, rather than journals overall, fared.

Citations to articles varied greatly, even within a journal. Kathleen Sullivan’s legendary Foreword to the Harvard Law Review was the big winner–and lots of articles in elite journals did really well–some of the most-cited articles in journals published outside the most elite journals did better than the less well-cited articles in the most elite journals, like the Harvard Law Review.

Want a graphic illustration of this? Check out the graph below. It plots citations per article in selected law reviews. Each circle is an article.

Brophy_law_review_longitude

While articles in the most elite journals receive more citations on average than the less elite (but still highly regarded) other journals studied, some articles in the less elite journals are more heavily cited than many articles in even the most elite journals. We should be wary of judgments about quality based on place of publication. We should, of course, also be wary of judgments about assessing the quality of scholarship based on number of citations and we should, therefore, continue to evaluate scholarship through close reads of it.

Now, I strenuously argue in favor of reading pieces, rather than substituting one biased gauge of quality (citations) for another biased gauge (placement). I’m merely using the citations to raise the point that placement doesn’t bear a perfect correlation to relative quality. That, anyway, is the kind of law school I’d like to see–where hiring committees rally around a candidate by saying, “she wrote a great article!” rather than “she published in UCLA!”

If you’re interested in the short paper (including which articles were the big winners of citations), it’s available here.

Alfred Brophy

A Mini University?

Thanks to Michael and Devan and the rest of the crew here for inviting me to join the conversation on “What kind of institution do we want a law school to be?”

The institution I’d like is, well, perhaps pretty close to the ones we already have–something like a mini university, or maybe it’s better analogized to a liberal arts college. Either way, it’s an institution that has people with expertise across a wide spectrum–from hard-core law subjects (obviously) to economics, philosophy, sociology/anthropology, literature, history, and business (accounting) and some other areas like quantitative methods. A law school faculty of thirty people can cover a whole lot of intellectual terrain. And one of the great treats of being a part of a law school community is the opportunity to learn from very smart people who’re expert in neighboring fields, or maybe even fields that are a few miles down the road from my patch.

A virtue of teaching in law schools is that you have the opportunity to interact on a daily basis with people of differing expertise and talents. Although I do not write in criminal law or jurisprudence or economics, I am constantly exposed to the insights from colleagues who do. This must be what it’s like to be on the faculty of a liberal arts college, where there are relatively few (if any) people in your area of expertise but you learn from smart people in other disciplines. It also requires us as faculty to stay current in more areas than you’d typically expect of faculty in a university department. My friends who teach in history departments typically teach something like American history from Revolution through Civil War and some allied courses (like, oh, the old South, Jacksonian America, and the coming of the Civil War). Yet, law faculty will typically teach in several distinct areas. There’s something exciting about keeping up with the latest in equity and civil procedure, as well as trusts and estates, even though it is time consuming. You have the chance to show your students the ways that what we study is connected. Law school education has become what college was in the 1950s and 1960s (and what it still is at elite colleges and universities and maybe the honors programs at a lot of other schools)–a great general education in writing and reasoning.

And so as the students get all the benefits of introductions to the latest in theory and practice, we as faculty get the pleasure of seeing that from our colleagues. I think that makes us better rounded. And while it’s a favorite past-time of law faculty to decry how bad legal scholarship is, it also has a lot of virtues. Often it’s engaged with contemporary problems and often it draws upon many disciplines comes from the fact that it’s produced in law schools rather than arts and sciences departments. Some of my favorite legal academic literature, like Robert Cover’s Justice Accused: Antislavery and the Judicial Process and Morton Horwitz’ Transformation of American Law, 1780-1860, integrate law with other disciplines–history and philosophy in Cover’s case and history and economics in Horwitz’ case. I’m not sure that literature could be produced in a traditional history department–and I think history departments are a lot more open to innovation than a lot of departments. Basically, law schools foster broad and engaged work.

I guess this was driven home to me a few years back when I read the NYU Law School magazine and I thought, wow, this place has a huge and extraordinary faculty, “It’s a mini university!” And in hindsight, I think, maybe not even mini, maybe just university.

Now, how might we encourage more of this? That’s a subject for another day!