Friday, August 29, 2008

Billable Hours and Law Professors

This letter was sent to me and I thought it deserved publication. For some, that will mean that the author, Concerned, has written a peer reviewed "essay."

Dear Jeff,

From a money law perspective is the Fall article submission season more like the annual flooding of the Nile or a recurrent infestation of love bugs?

At my law school it seems likely that implementation of one money law principle (encouraging and rewarding productivity in publication) is backfiring. Instead of producing benefits to the law school's stakeholders, the emphasis is transforming the school into a law firm with profit center accounting and high billable hours quotas. In the 1980s, the availability of accounting software which could track profits generated by the acquisition and retention of clients, and identify the precise percentages of those profits attributable to particular lawyers or groups of lawyers within a firm, was supposed to increase productivity and make profit distribution more equitable. The change (coupled, of course, with other forces) altered law firm culture in unintended and unfortunate ways. Partners were unwilling to spend uncompensated time training and mentoring associates. Places in firms for lawyers whose skills lay in areas other than rainmaking and billing disappeared. Lawyers churned files by billing high hours and using the services of more lawyers than necessary. Lawyers "cross-sold" their firms' services in ways that created conflicts of interest. Compensation decisions drove wedges among lawyers who had been partners for many years and contributed to the disintegration of loyalty and continuity of personnel in firms. Many lawyers became disillusioned with the practice of law because they felt they were only as good as their last billable hour.

From reading your posts, I know you are aware of the law school version of this phenomenon. Deans value the number of publications on a resume without any serious attempt to evaluate the scholarly contributions of the works. Professors "churn" publications by recycling material, claiming book credits for for collections of previously published articles, and over bill by writing articles (often through symposia) that reach only limited audiences of the like-minded. The untenured feel pressure to bill lots of hours by increasing the number of their publications without any meaningful guidance from the law school's version of the senior partner on how to develop as a scholar. We send out glossy brochures touting our scholarly prowess like law firms competing in the 1990s beauty contests. Places on faculties unwilling or unable to play the numbers game are disappearing as they are frozen out from the power hierarchy within the law school. The indiscriminate compensation decisions of law deans has created a demoralizing environment where the rich get richer and the poor get poorer. You're only as good as the last entry on your list of publications.

As least in the case of profit center accounting, you could argue that the shareholders of the law firm benefited from these costs. This is not so in the law school context. Courts do not cite most of these articles, lawyers don't use them, and while scholarship does enhance the teaching of many, the pressure to be theoretical increases the gap between the classroom experience and the realities of law practice.



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