Legal scholarship in the lean years

April 14

In the last five years, legal education has witnessed a dramatic reduction in demand. Applications are down, forcing many schools to shrink class size and discount tuition to attract students through “merit” scholarships (and more recently, in rare cases, across-the-board tuition cuts). With income down, schools must cut expenses, the largest chunk of which are faculty salaries. Many schools have encouraged senior faculty to retire, and faculty hiring across the board has been sharply curtailed. As I see it, we’re seeing a return to the period before the boom decade of about 1999-2009. In that window, many law schools had lots of extra cash that they spent on new buildings, better amenities and more and better-salaried professors. The boom is over, and a lot of schools are trying to adjust.

These developments have many implications. But this being a law professor blog, I thought I would consider one small part of the puzzle of specific interest to law professors: What will the “new normal” mean for legal scholarship? Here are two thoughts about how the current situation for law schools is likely to impact the scholarly side of what law professors do.

1. First, I expect that scholarship will receive less attention inside the legal academy. In the last two decades, scholarship became an ever-increasing priority for law schools because they had the resources to make it so. Schools could offer generous stipends to faculty to encourage scholarly works. They could hire additional faculty members who didn’t fit a particular curricular need but had great scholarly promise. They could offer lots of money to try to lure top scholars to their faculties. And they could lower teaching loads to free up time for scholarship.

These sorts of efforts were justified in part based on U.S. News optimization. Peer reputation is part of the U.S. News ranking, and efforts to improve the scholarly profile of the school were thought to help the school’s peer reputation. But these steps were part of rankings optimization during boom years when schools felt they could afford them. When some schools took these steps, other schools felt compelled to follow suit to stay competitive in the rankings. Scholarship became a high priority across the U.S. News tiers.

Today, with money tight and many schools struggling, these efforts are likely to be cut back at many schools. Hiring is down sharply. The hiring that has occurred has become more tightly connected to curricular need. Deans feel pressure to cut stipends and (in some cases) to raise teaching loads.

It seems likely that many schools will respond to these pressures my making scholarship a lower priority. The change will occur gradually, I expect. Most professors will do their thing just as they did before, and many won’t notice the difference. The changes also will vary in degree depending on where each school falls in the U.S. News hierarchy. But just as scholarship became marginally more important during the boom years, I suspect it will become marginally less important in the lean years. Many schools are going to be too focused on making ends meet and finding jobs for students to devote a lot of resources to U.S. News peer reputation scores. Scholarship will still be very important, especially near the top of the U.S. News ladder. But I suspect it will be less important than it was in the last decade or two.

2. I would guess that the new environment also will have at least some impact on the substance of legal scholarship. My thoughts are tentative, but here’s a prediction: The lean years will create pressures for scholarship to have more relevance to the bench and bar. The impact will be modest on the whole, as most professors are unlikely to change the basic tenor of their research in light of outside influences. The impact will be felt at some schools more than others. Still, I think the lean years will push legal scholarship as a whole to engage more with the kinds of issues that judges and lawyers see.

I think that’s true for reasons similar to those in point No. 1 above. During the boom years, the search for new scholarly ideas often encouraged work outside law that seemed foreign to judges and practicing lawyers. Leaner times likely mean more focus on the core mission of training lawyers. And more focus on the core mission likely means more scholarly connection to the legal profession and more scholarship that is more relevant to what judges and lawyers do. Or at least that’s my tentative guess.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.
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