Legal Scholarship and Law School Strategy

06/26/2012 04:30 pm ET | Updated Aug 26, 2012

Law schools are attacked on the ground that they are not doing a good job of serving students as consumers. They are charged with not providing enough value to justify the price (or loans to pay the price). The consumer theme and consumer view of students is new, but some of the specific lines of attack are old. One familiar line is that faculty scholarship has little value. The new twist is economic: that law schools' investment in scholarship is a waste of tuition dollars that needlessly drives up price. I wish to consider this economic argument.

Scholarly activity in a law school, like any other institutional activity, requires investment. What are the reasons for this investment? A school can invoke any one (or more) of five primary reasons.

• Teaching. A common justification for scholarly activity is that it makes faculty better teachers and thus supports the core function of a law school. On this rationale, investment in scholarly activity is a form of investment in professional development. On this rationale, scholarly activity arguably is more important than the resulting product.

• Reputation. A law school's ability to compete -- for students, new faculty, and job opportunities for graduates -- depends in part on academic reputation. Academic reputation depends in part on faculty scholarly achievement. Hence, a school might invest in faculty scholarship to build its reputation and improve its ability to compete. On this rationale, investment in scholarship is part of a school's marketing program. And on this rationale -- unlike the first -- scholarly product is more important than scholarly process.

• Compensation. A person might join a law faculty because doing so offers opportunities not available elsewhere. In particular, schools generally allow their faculty the opportunity to pursue intellectually satisfying scholarship through teaching loads that permit time and energy for it. This, however, involves a cost to the law school, because the lower teaching load requires more teachers and a higher compensation budget. A school can justify the additional cost as a way to attract desirable faculty members -- it is like paying higher salaries. And so on this rationale, the cost of scholarly activity is a core compensation cost.

• Service. Law schools typically have service-oriented purposes in addition to educating students. One such purpose might be contributing to knowledge and law reform through the scholarly work of the faculty. From this perspective, a school's investment in scholarship is a public service expenditure, similar to expenditures for pro bono activity by the faculty.

• Financial Benefit. Scientific research in universities is often funded from outside the institution. Research can be a source of financial benefit to the university through this outside funding, as well as through patents or commercialization. In principle, legal scholarship could similarly be a source of revenue or other direct financial benefit. On this rationale, expenditures for scholarly activity would be costs associated with a (potentially profitable) line of business.

Given these various rationales, blanket criticism of law schools for overinvesting in scholarship, or for producing unhelpful scholarship, is superficial. Schools presumably invest in scholarship for different reasons, so it is doubtful that legal scholarship can be evaluated as an undifferentiated whole. Whether a given school is or is not overinvesting, and is or is not getting a good return, depends on why and how the school makes the investment.

Yet, it is unlikely that many law schools are as strategic about investment in scholarship as they could be. To this extent, there may be limited substance to the criticism. The better a law school articulates the reasons it invests in scholarship, gauges the proper amount and character of that investment, and assesses the benefits and the return over time, the more effectively it will use its resources to achieve institutional goals. And the more strategic law schools are in this way, the better they can preempt criticism of their scholarly activity.