Monday, December 10, 2007

Moneylaw, Macro-Style

I cannot help but think once in awhile about the 72,000 law review articles that have been published in the last ten years. This does not count, of course, books by law professors (many of which should not count since they are recycled old articles) chapters, submissions to books of readings, casebooks, encyclopedia entries and so on. Practitioners also do a fair amount of writing so not all of this is done by law professors. Still, what do you think? 90,000 to 100,000 published works by law professors in ten years?

When I do think about this I also think of my favorite passage from Lucky Jim: “. . . along the knife-edge dividing the conceivably-just-about-relevant from the irreducibly, immitigably, irrelevant.” In fact, I use the quote, I think appropriately, as the introductory page to my Law and Economics casebook. Not that you would have seen it as the book is still striving to hit triple digits in sales. Not a money maker, that one.

One hundred thousand offerings by law professors. Tons and tons of law review pages, ink, and now, of course, down-loaded pages just in case the article may come in handy. If you down-load as casually as I do, these are send to recycling about a year later often after not much more than a skim.

Somehow – yes I am procrastinating about grading – rather than think about Moneylaw in terms of law schools like one thinks of Moneyball in terms of baseball teams, shouldn’t the focus be on a Moneylaw approach to legal education more generally. In fact, the main disconnect between Moneyball and Moneylaw (other than the lack of methods to assess who wins) is that baseball’s product is competition and strategies to get an edge are part of that process. Competition makes the product better.

Does competition among law schools make legal education better? It can, but to some extent it is responsible for 100,000 articles when 50,000 might be better thereby eliminating some of the "irreducibly, immitigably, irrelevant." Fifty fewer law schools might make the system better as well. What would the most efficient system of legal education look like? Can Moneylaw principles be applied to a macro view of legal education.


Anonymous Anonymous said...

I fear that Moneylaw may differ from Moneyball even more after this post. Not only are there no (or more difficult to find and calculate) metrics, but it appears that the metrics you like are anti-thetical to the metrics that are important.

Two examples:
1. You want collegiality - real collegiality. The best metric for this? References who talk about how collegial you are. The problem? This is the kiss of death during appointments, because if all your reference has to say is you are a nice, good person, then you must not be very smart.

2. You want scholarship - real scholarship. The best metric for this? As you've noted many times, the best indicator of future scholarship is past scholarship. Alas, even this fails, as this post points out, there is apparently too much scholarship - maybe half as much is good enough, but if you were following moneylaw principles if one publishes half as much before hitting the market, you likely won't hire them!

12/11/2007 7:31 AM  
Anonymous Anonymous said...

I think one way to make law schools more competitive while perhaps saving trees would be to make the the law school publishing enterprise more competitive and rigorous. While I certainly have some reservations about strict journal hierarchies and peer review, it may be time for such a system of publishing in legal academia. I outlined this possibility in a recent post:

12/11/2007 7:39 AM  
Blogger Frank Pasquale said...

I like your critical take, but I also think a post like that can't just be based on sheer volume alone. Give some examples of terrible law review articles!

On some level, the articles explosion is driven by the USNWR rankings rat race. The idea is to be influential in your field, and the way to do that is to get cited in other articles. It's an entirely internal, self-referential system of merit.

Now some copyright professors in Canada just started a Facebook profile that helped scuttle a terrible proposed law there. That's a real service to the community. But note how ideological neutrality in the field is going to slow down recognition of that achievement....some people are going to think it was a great law, and they are going to be unwilling to acknowledge the significance of this political contribution. Perhaps the same could be said of my colleague David Feige's superb book Indefensible....some are going to disagree with his characterization of the criminal justice system, and unfairly discount his work as a result.

So ideological disputes lead us to fall back on neutral "citation counts" as a way of assessing quality. We end up mistaking scientific criteria of influence for social relevance. The name of the game becomes trying to write an article about a relatively ubiquitous concept that everyone is going to want to refer to in future articles, so they refer to you. On some level, that is precisely the wrong incentive to create--it really discourages people with very different perspectives from
critiquing the mainstream, because they won't get cited. They'll be seen as too far outside it.

One final example: I wrote a piece on search engines recently that (I thought) included an important critique of economists' treatment of externalities. I originally entitled the piece "Information OVerload Externalities." But I later gathered that because the piece critiqued (rather than participated in) the language game of legal economists, they'd never cite it. So it got renamed "Copyright in an Age of Information Overload." The piece fitted well within the mainstream of copyright scholarship, and has done well there. But I doubt it will have the effect it really ought to have--leading legal economists to question their positivism when it comes to cyberspace.

Anyway, that's probably too much for now, but I want to say that there are lots of arguments to be had. On the other hand, perhaps we really are witnessing some dialogues of the deaf....and if that is the case, it is truly useless. I have worried about that in a recent piece on economic debates over network neutrality, and will send that to anyone interested.

12/14/2007 8:20 AM  

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