Sunday, October 7, 2012

What is the Role of Scholarship in Today's Law Schools?

Producing scholarship has been the main function of law professors since Langdell's time.  While many law schools have stressed the importance of teaching, they still hire and evaluate their professors based mainly on scholarship.  Recently, however, the traditional place of scholarship has been questioned because of its cost and a renewed emphasis on the importance of teaching.

The role of scholarship in today's law schools has been the subject of several blog posts over the last few days.  Jason Solomon has posted a defense of legal scholarship on the PrawfsBlawg.  He believes that legal scholarship does not serve the instrumental function of moving law schools up in the U.S. News Rankings.  Rather, he writes, "So legal scholarship has to be defended on its own terms, and that's a good thing. Because despite the caricatures, we have a good story to tell."  He then gives several examples of useful scholarship from his faculty at William & Mary.  He concludes, "So my eloquent response to the claim that law professors don't write on things of importance to the real world is: 'Really?' I just think the critique is off-base, and we ought to defend the value of legal scholarship more forcefully and explicitly.  Without academic study of the legal system, debate on important legal and policy issues would be driven exclusively by interested parties -- a phenomenon that torts scholars like me are all too familiar with, as the punitive damages debate has been dominated by research that Exxon created by funding Cass Sunstein and others."

Paul Horwitz responds to this post on the same blog, emphasizing that the question is not whether scholarship is instrumental or useful, but "how much legal scholarship ought to exist, or at least how heavily subsidized legal scholarship ought to be"  (suggested by Steve Lubet in the Solomon comments). He also argues that scholarship does not have to be useful, writing "I don't depend on legal history or theory--or non-legal history or philosophy--to be functionally useful; I just want it to be good, true, and productive of thoughtful discussion."  He adds, "Truth is not always a particularly instrumental value, but I think it is a value, and one worth upholding. "  He concludes, "I think either of our views leave a lot of room open for other questions about how we structure the conditions for scholarship. . . .  I see no reason in principle, for instance, why Jason and I couldn't disagree on the purpose and value of scholarship, legal or otherwise, while still agreeing that, say, there ought to be a robust requirement of post-tenure review, or that 70 percent of the law journals out there ought to be eliminated, or that law schools ought to be able to make much greater use of adjunct professors, or that most tenure-track law professors ought to be shifted into undergraduate schools of law, or history or philosophy departments--or, if the demand isn't there, fired and left to fend for themselves in the non-academic sector.  I'm not arguing for these things; I just don't think our position on the value of legal scholarship necessarily says much about them."

At The Legal WhiteBoard, Jeff Lipshaw agrees with Professor's Lubet's approach, stating the question as "is there too much scholarship relative to the subject?"  He creates a thought experiment based on a barber college: "Barber colleges decide next week that faculty, themselves a tiny fraction of the total number of barber college graduates, not only should be teaching students how to cut hair and serving the institution, but writing at least one fifty page article a year.  The article could be about barbering, but maybe not.  The article could be practical or theoretical.  It could be disciplinary or inter-disciplinary."  After giving another thought experiment, he states, "In each case, isn't it clear that we are likely to have too much scholarship wholly as a result of the structure of the institutions and the incentives for advancement within them?"

Professor Lipshaw concludes, "The closest educational analogs to law, I think, are medicine and business.  Medical educators may often have the same degree as practitioners, but schools use armies of clinical professors to teach clinical skills.  Those clinical professors, I'm pretty sure, aren't required to create scholarship.  Business schools, like law schools, turn out armies of graduates.  But (and I've done all of about thirty seconds of research on this . . .), full-time tenured and tenure-track faculty overwhelmingly get Ph.D.s, differentiating them from the students, who graduate with M.B.A.s."

I would like to look at the role of scholarship in today's law schools using a different framework.  I will also focus on cost, but a different type of cost--the cost to the student through lost teaching resources.  I believe that, with today's emphasis on scholarship, law schools are not devoting enough resources to teaching.  (Of course, the tuition cost is important, too).

It has been said that law schools have three main functions--scholarship, teaching, and service.  Under the Langdellian Bargain, scholarship is by far the most important of these functions.  I believe that today we need to keep these three functions, but that the role of teaching should be brought to the top.  Law faculty need to devote more time to teaching (they need to teach more classes), and they need to be more rigorous in how they teach (they need to adopt the latest research in legal education, especially using problem solving in doctrinal classes).  Similarly, law schools should place teaching at the top when they hire and evaluate faculty.

I think that scholarship--both practical and theoretical--should still serve an important function in law schools.  Universities have traditionally been the institution for preserving and advancing education, and I see no reason that this shouldn't continue today.  (Like Professor Solomon, I am suspicious of private industry.)  In addition, I think that doing scholarship helps teachers improve their teaching skills, and it helps them become experts in their subjects.

A question I ask is would it hurt legal scholarship if law professors taught one more class a year so that class sizes could be smaller?  Are research sabbaticals that important?  Wouldn't it be better to give students more individual attention?

I know that adopting better teaching techniques would not be hard.  Several publishers, particularly Carolina Academic Press and LexisNexis, have recently published texts that include problem solving exercises and other new teaching techniques.

In sum, I think that scholarship is still important for law professors.  However, the issue is the cost and how we balance scholarship with teaching.

(Scott Fruehwald)

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