Paul L. Caron

Friday, September 5, 2014

Scholarly Incentives, Scholarship, Article Selection Bias, and Investment Strategies for Today's Law Schools

Dan Subotnik (Touro) & Laura Ross (Touro), Scholarly Incentives, Scholarship, Article Selection Bias, and Investment Strategies for Today's Law Schools, 30 Touro L. Rev. 615 (2014):

Anecdotal evidence supplied by authors suggested that article acceptance by law reviews was based to a significant extent on the affiliation and prestige of the author. The implication for readers was that most law professors could not expect a fair reading and that, indeed, those from 3rd and 4th tier schools had only the feeblest prospects of cracking the top tier. With many aspects of employment tied to law review placement --e.g. faculty recruitment and tenure -- law professors could understand the need to tamp down career expectations. And law students could begin to see the small benefit they got from law review production. 

Table 2

Table 3A

Table 4

The wide gap between big decanal dreams and on-the-ground realties raises some questions: Are deans at third and fourth tier schools succumbing to obsessive and fruitless competition in article sweepstakes? Are they buying into values set by an academic establishment that offers them little voice? Does it make sense when half of professors at America's two hundred plus law schools cannot get their articles into top schools that their law schools are investing so heavily in faculty scholarship?

Professors and administrators know that “academic reputation numbers appear to be highly correlated [i.e. consistent] over time for most schools.” Fourth tier schools, moreover, are not even ranked in USN&WR, so gaining a few points will not help. Since it is clear that much publishing is not being used by stakeholders and that publishing outside the top journals accomplishes little, if anything, in terms of rankings of tier three and four schools, would these schools not be better served by redirecting some resources from scholarly endeavors to more productive purposes for themselves, e.g., clinics, distinguished lectureships, writing courses, and student scholarships? Or, contrariwise, by applying savings from increasing faculty teaching loads to cutting student tuition? These strategies might not help in national reputational surveys, but they might well help schools in their own markets. In sum, have law schools absorbed Dr. Johnson's message too well? Has reifying scholarly writing undermined larger values? Should law schools continue to play a game they are losing?

Legal Education, Scholarship | Permalink


The assumption here is that scholarship == top journals and/or valuable/meaningful scholarship == top journals. That has never been less true than today thanks to at least four mediating systems: (1) Westlaw/Lexis/Google scholar; (2) SSRN/BePress; (3) respected topical blogs that highlight interesting work; and, if I may be a bit immodest, (4) JOTWELL.

If the purpose of scholarship is to be read, to make an impact on the academy and the world, then the suggestion that scholarship that doesn't go in a top journal is of so little value that it should be abandoned -- or that work published in a non-top journal is "losing" -- is downright peculiar when that work has never been so accessible to so many so easily. (And when there are so many important specialist journals that rarely crack 'top' lists too.)

Consider for example the obvious irony of the very article you cite: It was published in Touro L. Rev. which I venture to guess isn't a top-25 journal, and yet here it is getting at least the attention it deserves thanks to your posting.

Incidentally, the article itself could quite easily be questioned, starting with the calculation in footnote 8, which suggests that the portion of a tenure track salary that should be charged against teaching equals only what it would cost to pay an adjunct to substitute for it. I guess if you think adjuncts are a perfect substitute for regular faculty from a student point of view this makes sense, but do we really think that? I don't. I see them as complements to each other but poor substitutes for each other. Regular faculty advise, supervise papers, are around a lot more (or should be), and have a different and often broader perspective on law. A good legal education requires some of both perspectives.

The telling quote in the article is that some of the authors' colleagues say "they write to keep the dean off their backs." If they have so little love for scholarship, feel no need to try to discover, clarify, explain, challenge, or reform, than perhaps it is no wonder they see scholarship as disposable, a luxury, for a law school rather than part of its reason for existing (certainly for existing in a University).

For a totally contrary take on these issues, I invite your readers to our upcoming conference at U. Miami Law: Legal Scholarship We Like And Why It Matters on Nov 7-8. Registration is open.

Posted by: Michael Froomkin | Sep 7, 2014 1:22:55 PM

Does all of this suggest that the AALS should thus reconsider its role in promoting scholarship? That we should move back in the direction of the pre-Langdell days when law was not a university discipline?

Posted by: Bill Slomanson | Sep 6, 2014 12:20:51 PM

Do "blind" peer review, where the reviewers / editors who decide which articles to accept do NOT know the name or affiliation of the author(s). That can make a big difference in outcomes.

Posted by: Andy Patterson | Sep 5, 2014 7:19:49 AM

In other breaking news, water is wet. Back to you in the studio, Bob.

Posted by: Unemployed Northeastern | Sep 5, 2014 5:30:40 AM