February 11, 2014
Matt Bodie on the Economic Costs and Benefits of Legal Scholarship
Posted by Christine Hurt

About four years ago, my then 10-year old daughter said to me, "Wouldn't it be great if all the really smart people who lived before could talk to the really smart people now?"  I tried not to jump up and down, but instead said calmly, "That's what we call the academic record.  That's why really smart people write their ideas and discoveries down, so future smart people can build on their work."

Matt's blog post this week on Funding Legal Scholarship doesn't focus on this aspect, so I'll take up the torch for awhile.  Matt gives us the breakdown of how scholarship is funded (salaries and summer grants to professors; law schools may fund law reviews, which defray costs by selling subscriptions; law schools and law firms purchase direct/indirect subscriptions) and then the speculation on how much an article is worth to the professor (incentive summer grants, raises, lateral moves) and to the institution (prestige).  (The creation of really pricey practitioner treatises, pricey textbooks and not-so-pricey monographs was not mentioned.) But this closed system cannot be the reason that scholarship is produced.  If so, then there is no "there" there.

In other units on this campus (and I assume yours), research is expensive.  Labs, graduate assistants, materials, animals, human subjects.  But the end result is for the public good.  Research conducted by universities creates medicine, fills in gaps in the historical record (where were dinosaur ears?), explains human and animal behavior and development, makes hardier crops, etc.  Every week I get a campus newspaper with exciting discoveries (i.e., research).  In other units, prize-winning novels, plays, music performances.  This type of scholarship has great value to science, to knowledge, to art.

Legal scholarship has to have a value beyond the value to the creators, professors and their institutions.  Our scholarship should strive to add to scholarly knowledge and directly or (mostly) indirectly move the law.  Or at least explain it better so that others can understand it.  With the decades-recent push to have more scholarship produced by professors at every institution (even traditional "teaching" institutions), we may have a glut of articles that were created not because the author had a lot to say or a passion to say it, but because that was the expectation.  

The take-away from Matt's post (and the comments) seems to be that scholarship is a luxury good that not all law schools can afford in the near future.  I don't disagree with that.  A few weeks ago something was circulating on FB that said that professors tend to send their own kids to liberal arts colleges, where the professors aren't focused on their own research and teach undergraduates.  I look forward to market differentiation.  But, high-level, quality legal scholarship is necessary so that really smart people today can continue to talk to the really smart people who haven't been born yet.

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