Paul L. Caron

Thursday, June 15, 2017

Bursting The Legal Scholarship Bubble: Some Retrograde Recommendations

BubbleFrank O. Bowman III (Missouri), Days of Future Past: A Plea for More Useful and More Local Legal Scholarship, in The Fate of Scholarship in American Law Schools (Cambridge University Press 2017):

Legal scholarship is at an inflection point because the legal education industry, to which legal scholarship is merely an internally overvalued appendage, is passing from a period of affluent abundance to a period of relative austerity. Scarcity stimulates self-examination.

This essay describes how the population explosion in American law schools during the 1990s and the simultaneous rise of the U.S. News rankings mania created a kind of tulip bubble in legal scholarship — a bubble that is rapidly, and properly, deflating. I make several concededly retrograde recommendations for dealing with a post-bubble world, including changing law school hiring practices to favor professors with more legal experience than has long been the fashion, assessing scholarship more by effect and less by placement, and devoting more of our scholarly attention to questions of state law and practice.

These suggestions all flow from the basic premise that we should more consciously encourage, even if we do not limit ourselves to, producing legal scholarship that has practical value to legal and business professionals and to policy makers at every level of American government. That premise, in turn, is based on the conviction that a modestly more pragmatic approach to the scholarly project is good for society and is, in any case, a sensible response to the parlous state of the legal education industry.

I even go so far as to suggest that increased pragmatism and localism in legal scholarship will assist law schools in the U.S. News rankings wars.

Legal Education, Scholarship | Permalink


I still think people should write good scholarship rather than telling others how to.

Posted by: mike livingston | Jun 15, 2017 4:10:43 AM

I agree with these views. I also find it very hard to justify having our students go deeply in debt to pay for legal scholarship that few people read. Indeed, I question whether students should have to support scholarship that does not contribute significantly to the educations they are paying for. Scholarship helps us keep up in our fields and helps develop our thinking, but the academy's obsession is scholarship goes far beyond what students should have to pay for.

Posted by: Bill Jordan | Jun 15, 2017 7:27:40 AM

Legal scholarship directed toward local practice and local practitioners - is a great idea!

Posted by: Old Ruster | Jun 15, 2017 8:01:12 AM

If your goal is to reduce the amount of legal scholarship, the easiest solution is to require professors to do other time-consuming things instead that they can’t weasel out of, like teach. Law schools at non-research universities should probably require more teaching than the standard 2-2 law-school load. Once you put law professors on a 3-3, or, god forbid, a 4-4, they won't have any time for research. 4-4 loads are hardly unusual in undergraduate programs at teaching colleges (and such programs have correspondingly very light research/publication requirements). And 4-4 loads--or even more!--are not unheard of in legal education overseas. I just got back from a Fulbright semester in Thailand, and even at the top Thai law schools professors teach 4, and occasionally even 5, 3-credit courses __per semester__. They don’t do much research, obviously. There simply aren’t enough hours in the day.

Posted by: Jason Yackee | Jun 15, 2017 12:37:28 PM

The vast majority of law review content is of no use or consequence to the law, lawyers, judges, legislators, or students. The law reviews at the state law schools became became party organs for "critical theory" and identity politics long ago, as so-called progressive faculties allowed only identically-minded people to be hired over the last 40 years. I never saw anything in my law school's law review worth reading, and soon gave up even looking. Just another giant subsidy to the Left.

Posted by: Tiny Montgomery | Jun 15, 2017 12:48:16 PM

The empirical evidence suggests that law school reputation rankings are extremely sticking, and even dramatic changes in a faculty's scholarship, up or down, rarely change the US News equation. You want your law school's ranking to go up? Arrange to be purchased/absorbed by a university with a better reputation than your current reputation (see Michigan State, Penn State, U. New Hampshire, etc).

Posted by: David Bernstein | Jun 15, 2017 1:54:55 PM

Define "pragmatism".

Posted by: Enrique | Jun 15, 2017 2:36:50 PM

It's not surprising that people with extensive practice experience who are mediocre scholars think that universities should value their strong suites more and overlook their weaknesses.

No self-respecting, moderately competent graduate of an Ivy League school with a federal clerkship under her belt is going to move to the fly over to make $100K per year teaching a double or triple load at a mediocre law school, with no prospects for career advancement, when she could be living in NY or DC or San Francisco making $300K per year and working fewer hours in a cushy in house job.

Posted by: Market | Jun 15, 2017 3:22:43 PM

The only way that mediocre law schools can attract competent faculty is by offering them opportunities for career advancement through scholarship. People accept faculty positions at George Mason believing they are going to be able to publish their way to University of Virginia within a few years.

Take away that hope--even if it's a false hope--and being a law professor starts to look a whole lot like being a high school teacher. Would you want the guy who taught shop class or physical education teaching a class on securities regulation?

Posted by: Market | Jun 15, 2017 3:34:18 PM

The reason that law school reputation is sticky is because when one or two faculty members at lower-ranked, lower-paying schools develop into scholars with national reputations, they are swiftly poached by a higher ranking school with better resources and a better community of scholars.

If all the great faculty who have left San Diego or Florida for higher ranking, higher paying schools were still working where they started, those institutions would have better reputations.

When U.C. Irvine hired a large number of top people out of top 30 law schools, they were able to start in the top 30. Other new law schools that hired mediocre faculty started closer to the bottom, and several didn't survive long.

When universities have seen an exodus of faculty talent--for example Wisconsin after Scott Walker or U.C. Berkeley after assorted craziness--the University's reputation takes a dive unless it can quickly replace them with other reputable scholars.

You can look at SSRN rankings and see institutions plummet as good people leave.

Law schools have to keep running just to stand still on reputation.

Posted by: sticky reputation | Jun 15, 2017 3:59:24 PM

@ Market,

Then explain why so many top 10 law grads leave private practice to take fellowship and VAP positions that pay $50k and hold about a 25% chance of turning into a full time gig at a mediocre school in fly over country

Posted by: JM | Jun 15, 2017 5:33:53 PM

Yes, law students should not be forced, through their tuition, to pay and go into debt for law review articles which on the average cost about $100,000; many of which are rarely read much less cited (even by other law review writers), and rarely have a significant impact on the real world of law.

When Mayer Freed tried to justify his study of how many pages of law review articles faculty members at different schools "churned out" by asserting that "it's through publication that ideas are advanced," I replied.

In words which have been widely quoted, I said “that's exactly the kind of half-truth that keeps many of my colleagues legal eunuchs, unwilling to use (and incidentally to test) their legal abilities in the real world where they can advance the public good, rather than simply accumulate page counts and pad resumes.”

Yes, we should be “assessing scholarship more by effect and less by placement” by asking each law professor on a yearly basis to show how his or her legal scholarship has had a significant impact on the real world of law - and not counting a cite at the end of a string footnote.

As I wrote then, legal scholarship can -- and should -- be expressed in many forms other than law review articles, including complaints and supporting memos in legal actions, briefs amicus curiae, fillings before administrative agencies, and in testimony and proposals for new laws before legislative bodies.

There, in the real marketplace of ideas, scholarship is not judged by law students who are as much in an ivory tower as their professors, but rather by those qualified to assess the value and relevance of the ideas in the real world of law, and to act on them if the scholarship is persuasive.

Posted by: LawProf John Banzhaf | Jun 15, 2017 5:43:53 PM

Very few top 10 law graduates do leave private practice for VAPs, and a lot fewer these days than when law schools were flush. There are around 3,000 to 6,000 graduates of top 10 law schools every year, including LLMs and SJDs. There are maybe 50 VAPs or less in a given year. And many of those VAPs will leave academe for private practice if the only academic job they can get isn't at a good school in a good city. It's a year or two for a lottery ticket that could land them at Columbia or Columbus. If it's Columbus, many of them are not sticking around.

"Then explain why so many top 10 law grads leave private practice to take fellowship and VAP positions that pay $50k and hold about a 25% chance of turning into a full time gig at a mediocre school in fly over country"

Posted by: market | Jun 16, 2017 6:38:35 AM

VAPs offer light teaching load, minimal teaching responsibilities, and an opportunity to do scholarship which can hopefully lead to a job at a law school that values scholarship and has the resources to support it. The fact that VAPs can pay so little simply highlights how much prospective faculty value an opportunity to do scholarship and not be overwhelmed with teaching and administrative responsibilities.

If you increase teaching and administrative responsibilities and reduce time for scholarship, the job becomes much less attractive and you need to pay more to get comparably good people.

Posted by: VAP | Jun 16, 2017 7:30:00 AM

The self-aggrandizement (and latent fear) in sticky/market's screeds is palpable. Reality is harder to find, but the self-aggrandizement is nigh overwhelming. Must be a blast at socials...

Posted by: Unemployed Northeastern | Jun 16, 2017 9:11:55 AM

Yeah, it's going to be real hard to get high quality people to take a job teaching three classes a year for $200K . . . riiiiight. Also, "cushy" $300K in-house jobs are there for the asking for HYS grads . . . the things you learn on the internets!

Posted by: Another Tenured Prof | Jun 16, 2017 11:03:44 AM

"There are around 3,000 to 6,000 graduates of top 10 law schools every year, including LLMs and SJDs. There are maybe 50 VAPs or less in a given year"

Of course according to Prawfs there were only about 60 or 65 new law professor hires this past year, so the odds are still 1 in 50 to 1 in 100, depending on which end of the 3k to 6k *elite* law school grads per year we are going with (and wait, I thought all law school grads had equal opportunities and salary outcomes? Someone has very stridently been telling us that for years now). So of course the odds aren't in anyone's favor, and of course if a law school upped its teaching load to 4-4, all the newbies would grimace and muster a "Please sir, may I have some more?," because there are another 100 identical resumes dying to take their job from them. And that's before we get to the growing trend of elite law schools hiring PhD-JDs, and the growing realization among elite doctoral students in the humanities and social sciences that if they get a law degree - an intellectual lazy jog in comparison to their doctoral programs - they might get a law professoring job with considerably more pay, fewer classes, and virtually no baseline standards for their research and scholarship. Let's face it - it's not the 1990s anymore; just being a precocious, arrogant double Ivy grad ain't enough to be a law prof these days. So sad...

Posted by: Unemployed Northeastern | Jun 16, 2017 3:30:43 PM

Oh, and a bit more cold water for our sticky friend:

Average pay for general counsels: $157,107. But I'm sure once we pack it with enough assumptions about the revenue they fail to tell the government about, that figure turns into like $4 million per year, right?

Posted by: Unemployed Northeastern | Jun 16, 2017 3:33:21 PM

@ Market,

You act like the world needs a zillion candidates or something. There were 62 tenure track hires this year, at American law schools. If we add 50 fellows (which you conveniently committed) to your 50 VAPs, then we have twice as many top 10 law grads desperate to leave private practice as there are academic jobs, including all the scrappy ones in flyover country.

Posted by: JM | Jun 16, 2017 4:52:21 PM

I hope the commenter Market represents a very small fraction of law professors or law school administrators. Their comments are disgraceful. Market does not view law as a noble profession dedicated to helping others. They have no commitment or sense of duty to help their students. Rather, they look down at people in “fly over” and the students at “mediocre” schools with disdain. The lazy and entitled commenter Market believes that we should be thanking them for their sacrifice – giving up this hypothetical $300k job in NY, DC, or San Fran to grace “mediocre” law students with their presence in “fly over.” Strange that medical school professors have time to teach, treat patients, and perform research. Medical school professors have extensive practice experience and they are great scholars. But entitled academics like Market think that teaching, practicing, and researching is too onerous.

Ignorant people like Market helped Donald Trump and the tea baggers get elected. Fox News and right wing radio regularly attribute these attitudes to liberals, in order to get middle America to vote Republican.

Market, you probably have the entire summer off. As an academic, you probably claim to be intellectually curious. I recommend you get out more and take a trip around the country. The rolling prairies in Kansas are beautiful. The Badlands in South Dakota are incredible. I recommend taking a hike through the Rocky Mountains. Meet some of the people in middle America.

Posted by: anon JD/MD | Jun 17, 2017 8:25:43 AM

Graduates of HYS with strong grades and clerkships don't end up working as in-house counsel at the "average" company, which has less than 50 employees. They either become law firm partners at reasonably good firms--perhaps not the very best, but somewhere in the top 300, or they work in the legal departments of large (fortune 50) companies that pay their in house counsel high salaries and generous stock options.

The dean of Stanford left to go be a law firm partner at Quinn Emmanuel. I assure you there are very few law firm partners at Quinn Emmanuel willing to leave to become a law professor.

Posted by: General Counsel | Jun 17, 2017 11:35:18 AM

There are actually quite a few mediocre law schools in the flyover that pretty much have no one capable of teaching corporate tax, partnership tax, ERISA, securities regulation, M&A, anti-trust, and the like or doing serious research in those areas. Or at most one or two people on a faculty of 50 will have vaguely business-like expertise.

If you try to pay somewhere in between what a criminal law and a tax law expert needs for it to make sense to leave the private sector for the academy, you'll end up with a whole lot of criminal law professors and not a whole lot of tax professors. Which of course is what we see in the legal academy.

Posted by: Market | Jun 17, 2017 11:41:52 AM

Most law professors do not make $200K. Median pay is closer to $110K.
Experienced professors at law schools in the top 10 or 20 percent of schools might make $200K.

Most profs make around $100K less than starting comp (salary and bonus) at a big law firm.

And the gap only gets bigger over time, since by definition most law professors are not at the top 10 or 20 percent of law schools.

Posted by: Law Prof Pay | Jun 17, 2017 11:46:01 AM

A few prominent examples of law professors who have left the legal academy for higher paying jobs in the private sector:

Posted by: Law Professors leaving for higher pay | Jun 17, 2017 11:51:22 AM

If we wanted to judge law professors by their direct impact on the law--as opposed to their indirect impact through scholarship and teaching that influences others--then pretty much any federal judge, senior government official, or law firm partner would outrank any law professor.

There are much better places to wield influence and power than in law schools. At a law firm, you can get very talented, experienced, dedicated associates to assist you. At a law school, you're working with second year law students who are wiling to commit 1/10th of their time to working in a clinic for a pass-fail grade.

People are attracted to law schools because they want to spread knowledge, and not just promote the interest of their clients.

Posted by: Impact | Jun 17, 2017 12:00:18 PM

If there are only 2 serious candidates for every tenure track job at a law school, that is a deeply troubling state of affairs. There are probably 20 serious candidates (at least) for every tenure track job at business school.

You want to bitch and moan about how inexperienced law professors are? You get what you pay for.

Law schools can't afford the $300K *starting* salary it would cost to get someone good with 5 to 10 years of legal experience.

Posted by: selectivity | Jun 17, 2017 7:25:55 PM

I think it's wonderful when law professors express anti-scholarship views openly.

That way, appointments and dean search committees can efficiently spot the free loaders and avoid hiring them.

Posted by: Signaling | Jun 17, 2017 7:28:05 PM

"This essay describes how the population explosion in American law schools during the 1990s and the simultaneous rise of the U.S. News rankings mania created a kind of tulip bubble in legal scholarship — a bubble that is rapidly, and properly, deflating."

I find it interesting no one is discussing the elephant in the room - namely, most legal and business research is junk science aimed at impressing an incestuous group of like minded fellow travelers, and has zero practical value.

Posted by: Dale Spradling | Jun 18, 2017 6:43:55 AM

The obsessive comments in this thread from an anonymous law professor (let's call him "Mike") are pretty sad, as well as extremely inaccurate. If you look at the SALT survey of law professor salaries, which includes almost none of the top 20% of schools, ALL tenured and almost all untenured law professors are making more than $110,000 per year -- in many cases much more. When you include summer stipends (essentially a salary supplement), the median salary for tenured law professors is above $200,000 at dozens of law schools. At elite schools it's above $300,000.

Posted by: Social Scientist | Jun 18, 2017 7:16:51 AM

Anon JD/MD's self-righteous sanctimony went out of style with Lava lamps and Jimmy Carter.

Being paid poorly does not mean that you are more "noble" or "helping people" more. Almost everyone who has a job of any kind is helping someone--otherwise, no one would pay them to do their job! You might as well help people who appreciate it enough to pay you fairly for your efforts and not stingy misers who think the world owes them something for nothing.

Law students, who are overwhelmingly from upper middle class families, and who will overwhelmingly go on to have lucrative careers helping make the rich richer, and will earn more than their professors at an equivalent age, are hardly the poster child for a “needy” group.

If Anon JD/MD really wanted to “help people in need,” he could have spent a career working to provide clean water to people in third world countries instead of pursuing a decade of expensive and remunerative professional education. With a high school diploma or less, he could have worked at a homeless shelter or as an orderly at a hospital—no college degree required! But he chose to invest in himself so that his labor would be more valuable and his quality of life would be better.

Doctors actually help improve people’s health and extend their lives—lawyers just help make people richer. Doctors are by a wide margin the highest paid occupation in the United States.
Doctors are paid far better, and are far wealthier, than the overwhelming majority of their patients. That doesn't make what they do for a living any less important or less “noble”—it’s how we, as a society, show that we value what they do.

Doctors are also paid far better--and given government incentives--if they set up their practice in the "flyover", or “Underserved Rural Areas” because most people who are educated and have options don’t want to live there. There’s a reason why a 1 bedroom apartment in San Francisco costs as much as a 3,000 acre estate in North Dakota.

But you know what? If Rural people voted for higher taxes and a larger government with better paid employees, they could all have great healthcare. They’re getting exactly what they voted for.

The kind of cynical rhetoric Anon uses about “duty” is the sanctimonious B.S. that convinces naive kids to go off to die in senseless wars.

Thankfully, most doctors and lawyers and even college graduates these days won’t fall for it.

Posted by: Sanctimony | Jun 18, 2017 10:02:56 AM

The Salt Salary survey shows law professor earnings consistent with BLS data.

Assistant professors (early career tenure-track professors) make less than $100K per year or just slightly over $100K at the overwhelming majority of law schools on the list, and associate professors--some of whom have tenure--don't make much more. Clinical professors, who are not shown, make even less.

There's only one school on the whole list where assistant professors make more than $135K per year. And associate professors with tenure do not make much more.

Summer stipends are often less than $10K per year, and not everyone gets them.

Sorry you think law professors are swimming around in money bins like scrooge McDuck, but that's not reality.

Posted by: Sanctimony | Jun 18, 2017 12:55:21 PM

Yeesh, someone on this board is belly-flopping into the realm of self-parody. No guesses who! I almost feel bad - someone's preexisting genetic disposition to cray is working overtime, but one feels compelled nonetheless to correct some of the more whopping whoppers:

“Graduates of HYS with strong grades and clerkships don't end up working as in-house counsel at the "average" company, which has less than 50 employees”

1) Yes, every HYS grad winds up as name partner at a Vault 5 firm, GC of a Fortune 50 company, or on the Supreme Court. Yup.
2) Surely graduates of HYS are also told the difference between “less” and “fewer” at some point in their lives; you should revisit that lesson.
3) I was under the impression that HY&S have all moved their law schools to some form of honors/pass/fail and no longer have grades as such.
4) This unproven assertion flies in the face of earlier PEER-REVIEWED research that claims, inter alia, that one’s law school alma mater has no meaningful effect on earnings, nor does passing a bar exam, for that matter. Please revise your self-aggrandizement to reflect this obvious and eternal truth.

“The dean of Stanford left to go be a law firm partner at Quinn Emmanuel”

Plural of anecdote is not data.

“There are actually quite a few mediocre law schools in the flyover that pretty much have no one capable of teaching corporate tax, partnership tax, ERISA, securities regulation, M&A, anti-trust, and the like or doing serious research in those areas”

1) “I applied to Oxford and the Sorbonne; Harvard is my safety.”
2) Somehow society has mustered on even in the absence of “serious research” in securities regulations in Fargo.
3) Have you, now or at any time in the past, had a friend?

“Most profs make around $100K less than starting comp (salary and bonus) at a big law firm”

And yet still probably make more per hour.

"Law schools can't afford the $300K *starting* salary it would cost to get someone good with 5 to 10 years of legal experience."

1) That’s about twice the average salary for all attorneys nationwide, regardless of experience. Very few attorneys actually make $300k; I mean, it’s not like they are coders for Netflix or Uber.
2) Plenty of attorneys will, after 5-10 years of putting in 60-70 hours per week in the office (if not more), gladly take large haircuts (but not so large they won’t still have six-figure incomes) to heft a 2-1 or 2-2 teaching load, with nary a billable in sight.

“Law students, who are overwhelmingly from upper middle class families, and who will overwhelmingly go on to have lucrative careers helping make the rich richer, and will earn more than their professors at an equivalent age, are hardly the poster child for a “needy” group.”

1) So upper middle class that even some years ago now, 86% of them borrowed an average of $104k to attend law school!
2) Such lucrative careers that back when Nomura was rating SLABS in the years before the Great Recession, those asset-backed securities for Access Law loans had projected default rates in the 14% to 15% range, higher than nearly every other private education loan conduit. And SLM’s projected law school loan defaults were twice that of their MBA loans. So lucrative! See also: the $49k average income for solo practitioners, who comprise 48% of the private bar.
In conclusion, “You want to b*tch and moan?” Well yes, you do.

Posted by: Unemployed Northeastern | Jun 18, 2017 5:15:23 PM

There are at least two law schools in DC where starting law prof salaries are below $100k. I know, I teach at one of them. Maybe it's different in Des Moines, but I suspect it's not...

Posted by: DC law prof | Jun 18, 2017 6:51:48 PM

@ Market,

Your projections of where HYS grads wind up is wildly off. I worked in an AMLAW 50 firm and many other associates were strong HYS grads. In general, the breakdown for how their careers look 10-12 years on is as follows (caveat, this is largely litigation).

25% - Prestigious government attorney jobs. No doubt nice gigs, and preferable to many academic jobs.

25% - Still at the firm or another AMLAW100 firm as an associate or counsel. While the money is good, the demands are still great and frankly, the lack of advancement is transparent and humiliating for individuals with such great credentials.

20% - In house gigs as "counsel" or "associate" level staff at fairly large enterprises such as Fidelity or higher level roles in smaller, more regional corporations. Associate counsel at Fidelity in a major city pays about $150k per year. And no, not all of them become the GC, in fact maybe 1% do, and that will depend on personal factors not just academic resume.

15% join boutique law firms and generally, but not always, become partners fairly quickly.

10% - Do miscellaneous things, like hang in federal clerkships for years on end, or drop out of the profession (and maybe the workforce) altogether to raise a family.

5% become partners at AMLAW 100 firms. This may be generous. I can literally think of just 2 HYS grads that have become a partner at an AMLAW100 in a litigation department, and I have known at least 50 of them.

These are all estimates, and of course just based on my experience, but I also think fairly accurate. I see dozens of prestigious law grads get stopped up around years 7-10. I am sure a good number of them would strongly consider the security, independence and ease of life that comes with being a law prof., even at a mediocre school in a non-major market.

Posted by: JM | Jun 19, 2017 6:46:52 AM

Never mind JM -- "Market's" claims are too absurd to bother refuting. The entry level credentials of law profs are vastly better than they were 20 or even 10 years ago by all conventional metrics. This indicates the competition for these positions is much more intense than ever before, which hardly signals any "sacrifice" on the part of successful candidates in regard to their compensation.

Posted by: Social Scientist | Jun 19, 2017 9:08:07 PM

Pretty much every Harvard grad I know who wanted to make partner made partner. Just not always at the firm where they started, maybe one or two rungs down, but still at a level where they could make $300k+ per year minimum.

Some people go into federal government ($200K per year, plus pension worth around another $50K to $100K per year). Many people go into big financial services companies or tech or healthcare where even associate general counsel are making $300K per year working less than 50 hours per week.

A lot of people end up in finance or consulting or insurance or real estate, again making $300K+.

Obviously if you drop out of the workforce to write novels or raise kids, you are not trying to make partner.

Posted by: | Jun 20, 2017 8:07:46 PM

1) How can you tell a Harvard man? You don't have to - he'll tell you. Immediately.
2) And this is relevant why? Because only Harvard grads are qualified to teach law school
3) Pretty sure it ain't
4) Insurance or real estate making >$300k? Uh huh.
5) If the point here is that Harvard Law grads are privy to opportunities most of us proles cannot imagine, well duh. But note that this again blatantly contradicts the PEER-REVIEWED paper that informs us that law school alma mater has no material effect on earnings.

Posted by: Unemployed Northeastern | Jun 21, 2017 9:05:55 AM