Monday, September 19, 2016
I read with great interest Robert Rhee's 24-page critique of Florida's graduate tax program, the reaction by Florida Law Profs Marty McMahon and Jeff Harrison and a reader of this blog, and Rhee's defense of his letter (as well as the 35 comments, including by Florida Prof Michelle Jacobs; Tax Profs Linda Beale, Erik Jensen, and Mike Livingson; and Law Profs Orin Kerr and Jason Yackee). Although I was a visiting professor at Florida many years ago and have many friends on the Florida tax faculty, I have no first-hand knowledge of the state of affairs in Gainesville. I disagree with several aspects of Rhee's letter (e.g., Rhee claims that Florida is the most expensive high quality graduate tax program in the country because "NYU and Georgetown are 100% online" — like several programs, NYU and Georgetown offer both residential and online tax LL.M.s (NYU and Georgetown dub their online degrees "Executive LL.M.s" to distinguish them from their residential LL.M. degrees); Alabama is the only school to offer an exclusively online tax LL.M.).
I want to focus here on Rhee's criticism of the Florida tax faculty's scholarly bona fides. I have served as associate dean for research at two law schools and have thought quite a bit about the role of law faculty in today's legal education landscape and expressed those views in multiple blog posts, as well as in several law review articles and presentations (listed below). Rhee's discussion of the Florida tax faculty's scholarly performance considers only one of the several metrics for measuring law faculty scholarship and ignores other aspects of faculty contributions to law school success.
Rhee writes that "[s]cholarly prominence can be empirically measured in two ways: (1) production of scholarly work including prestige of the placement, and (2) citations to the works by others."
The first point is certainly true. Brian Leiter has developed a widely followed measure of assessing law faculty publications (which counts articles in "Top 20" law reviews), and Roger Williams Law School has expanded the study (to include articles in "Top 50" law reviews). Rhee accuses the Florida tax faculty of scholarly "underperformance" without using one of the two metrics he himself identifies.
The second point is incomplete. Existing metrics of law faculty scholarly performance measure not only publications but also the influence of those publications. Rhee assesses the scholarly influence of the Florida tax faculty through only one of the measures: citations in law reviews. Best practices for measuring scholarly influence consider not only citations in law reviews but also citations by courts, SSRN downloads, and Google Scholar H-Index and M-Index scores.
Jay Soled and I are working on a project that ranks the scholarly performance of law school tax professors using these existing measures. We thus far have collected data on over 270 tax professors and our preliminary observation is that although these existing measures are certainly imperfect, they do a good job of identifying the leading tax scholars, especially when considered together. I have argued elsewhere that we need to augment these existing measures with more sophisticated faculty scholarly performance analytics.
In my opinion, Rhee should not have publicly labeled the Florida tax faculty as "not a prominent group of recognized scholars in the field" without taking into account their publications and the other measures of the scholarly influence of those publications.
More fundamentally, nowhere in his 24-page critique does Rhee mention any of the other myriad ways in which the Florida tax faculty work for the betterment of the law school, its students, and its alumni. With the crisis facing legal education today, healthy law schools will find ways to leverage the skill, talent, and passion of each and every member of their faculty in maximizing the return on the significant investment of time and money that our students make in attending our schools. It is difficult to construct systems to collect meaningful data on faculty contributions to the success of a law school and for law school leaders to fairly incentivize those contributions. But the failure to do so inevitably leads to breakdowns of the sort we have read about on these pages over the past several days. I am reminded of how Rafael Gely and I closed our article, What Law Schools Can Learn From Billy Beane and the Oakland Athletics, 82 Tex. L. Rev. 1483, 1554 (2004):
- The Associate Dean for Research Position: Encouraging and Promoting Scholarship, 33 U. Tol. L. Rev. 233 (2001) (with Joe Tomain)
- What Law Schools Can Learn From Billy Beane and the Oakland Athletics, 82 Tex. L. Rev. 1483 (2004) (with Rafael Gely)
- Dead Poets and Academic Progenitors: The Next Generation of Law School Rankings, 81 Ind. L.J. 1 (2006) (with Rafael Gely)
- Ranking Law Schools: Using SSRN to Measure Scholarly Performance, 81 Ind. L.J. 83 (2006) (with Bernie Black)
- Are Scholars Better Bloggers? Bloggership: How Blogs Are Transforming Legal Scholarship, 84 Wash. U. L. Rev. 1025 (2006)
- The Long Tail of Legal Scholarship, 116 Yale L.J. Pocket Part 38 (2006)
- The Law School Crisis: What Would Jimmy McMillan Do?, 31 Pepp. L. 14 (Fall 2012)
- Faculty Scholarship at Faith-Based Law Schools: Long Tails, Moneyball, and Rankings in a Time of Crisis, Regent University School of Law (Feb. 28, 2014)
- Law Professor Blogs Network 2.0: One Year Later, Harvard Law School/CALI Conference on The Next Wave in Legal Education (June 19, 2014)
- Keynote Address, Law School Rankings, Faculty Scholarship, and the Missing Ingredient, Arizona State Law School Aspiring Law Professors Conference (Sept. 27, 2014)
Prior TaxProf Blog coverage of the Florida graduate tax program:
- Florida Law Prof Writes 24-Page Critique Of Graduate Tax Program: Go Online Or Shut Down — 'Hiring More Tax Faculty Is Like Hiring More Sailors To Man The Titanic Once It Has Hit The Iceberg' (Sept. 16, 2016)
- Marty McMahon Responds To Critique Of Florida's Graduate Tax Program (Sept. 16, 2016)
- More On The Critique Of Florida's Graduate Tax Program (Sept. 17, 2016)
- Harrison: The Trumpian Discourse About Florida's Graduate Tax Program (Sept. 18, 2016)
- Robert Rhee Defends His Critique Of Florida's Graduate Tax Program (Sept. 18, 2016)