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Deborah J Merritt

I've enjoyed your columns this week, as well as your other writings in this area. I have one addition to this post that I think you would endorse: I would say that we need to focus singlemindedly on the long term interests of *clients,* students, and the profession as a whole.

I assume (hope?) that clients' interests are implicit in faculty discussions about students and the profession, but I would like to move client interests to the forefront. Shouldn't we ask very explicitly in faculty meetings: "What is the impact of this change (curriculum, tuition increase, whatever) on clients?"

Many people talk about our duty to students, and I strongly support that principle. But I think that the essence of a professional school--like that of a profession itself--is to owe its primary duty to clients.

That belief doesn't mandate any particular outcome. Scholarly research, for example, vitally advances client interests. And case-based analysis in first-year classes prepares lawyers in ways that many critics forget. But I (like you, I suspect) would like us to ask more explicitly how law schools can best benefit clients. And in answering that question, we should be willing to look at hard facts and do new research--not just fall back on long-held assumptions. Thanks for your many contributions to this area.


Scholarly research vitally advances client interests?

How? By influencing the opinions of judges who don't read the research, or the lawyers who read even less of it?

Deborah J Merritt

BL1Y, I know this is a common meme--repeated even by the current Chief Justice. But it's just misguided. One reason current research sounds esoteric is that law itself has become so specialized. What seems narrow and irrelevant to 10,000 lawyers and clients is very important to one lawyer and client.

I had the honor of arguing a case before the Supreme Court two years ago, and I read dozens of articles to prepare. I didn't cite all of them in my brief, because many of them offered essential background rather than support for a particular point. But I couldn't have thought through the issues without the scholarship. I also called professors who had written some of the articles to talk through ideas with them. The BigLaw lawyers on the other side did the same--in fact, one of the firms was using my scholarship on a different topic in another SCOTUS case that Term.

I can't tell you that every single piece of scholarship published in law reviews will help clients. And I do think that professors spend too much of their work life on scholarship. I can write three articles today, with the help of computers and electronic research, in the time it took me to write a single article (documented on notecards and typed on a manual typewriter) in 1979. More faculty should be applying that "technology bonus" to teaching, service, and thinking about the issues discussed on this blog.

But I think it is fundamentally wrongheaded to dismiss scholarship as a category. Scholarship is what allows people to think through issues on a deep level; without that, it's hard to advocate effectively for either an individual client or systemic change.


I haven't seen anyone dismissing scholarship as a category. That's a bit of a strawman.

However, I have heard numerous complaints that there's too much of it, too much money is spent on it, and much of it is of only marginal value.

There's probably close to 10,000 articles published each year. If professors spend a third of their time on scholarship, we're looking at a cost of about $800 million a year spent on scholarship.

Maybe clients would be better served funding legal aid?

Deborah J Merritt

I'm glad you don't dismiss scholarship as a category; your earlier post sounded that way. As I noted, I do agree that professors should publish somewhat less. But let's look a little more at the cost of legal scholarship. You and some other posters, I think, may overestimate the size of law professor salaries. We don't all earn HYS rates.

Salary information for public schools is readily available on the web. Take, for example, George Mason University--a tier one school in the expensive D.C. area. The 2011 salaries for law profs at that school are here: Notice how many professors earn less than $160,000 per year (that infamous starting salary for BigLaw). What figure were you assuming as an average professor salary for your calculation?

But let's assume that legal scholarship does cost $800 million per year. That sounds like a lot, but consider the cost of other legal services. Kirkland & Ellis has 280 equity partners, with average profits of $3,075,000 apiece. So the partners at that *one* BigLaw firm took home $840 million last year--more than the cost of all scholarship combined.

Are the BigLaw partners worth the profits they earn? Heck if I know. But I think a full year of legal scholarship (10,000 separate articles if your estimate is right!) must be worth at least as much as the services of partners at a single law firm. And I do know that Legal Aid invites law professors (including me) to do CLEs for them based on our scholarship. Scholarship has also played a key role in the Innocence Movement, releasing dozens of wrongfully convicted prisoners.

Of course, plenty of legal scholarship also furthers the interests of BigLaw clients. Maybe we could cut out that part and give the money to Legal Aid? :) Joke, joke.


@BL1Y -- you very clearly disparaged scholarship in your comment at 7:30. When challenged effectively, you say that no one-- meaning you--was "dismissing scholarship as a category". What did that first comment mean? Why was it clear to Ms. Merritt, who is evidently a reasonable person, take the comment as dismissing scholarship--as did I; and as would anyone who read your first statement.


Botched sentence --why did Professor Merritt take your comment as dismissing scholarship?


BH, The comment was pretty plainly asking how scholarship was vitally advancing the interests of clients. The primary audience for legal scholarship is other scholars, who typically have few, if any, clients with interests to advance.

Deborah, For the 2005-06 year, the average law professor salary was $136,600(; no doubt it has gone up since then (tuition certainly has).
There are also about 17,500 law school faculty, multiply that by the average salary and you get about $2.4 Billion. If a third of professor time is spent on scholarship, then scholarship is costing about $800 million.

Comparing the amount spent on scholarship to the amount paid to partners at a Big Law firm doesn't make much sense. Are partners worth what they charge? An outside party with an interest in paying them as little as possible has decided yes, they are worth it.

Is there any way to measure the value of scholarship other than to just take professors at their word, that yes, this article really is worth $40,000?


And she rebutted your presumption.


That would be a rebuttal of the claim that scholarship is of absolutely zero use to the legal profession.

It is not a rebuttal of the claim that legal scholarship is of too little use to justify the resources allocated to it.

There are basically two questions that need to be answered regarding legal scholarship:

(1) Does it receive the right resource allocation based on its value? and

(2) Who should provide those resources?

Or, to reframe the questions:

(1) Would students be better served with a different allocation of resources? and

(2) Should research which benefits clients be paid for by students?

Concerned Reader

The problem here is you underestimate the profit motive of law schools. Character and values are road kill when battling the steaming locomotive of greed.

There was a great scene in the untouchables when Kevin Costner finally figured out that he needed to get tough with the mob, because that is the only way to deal with heartless criminals.

We need the same attitude when dealing with Deans and Law Professors who knowingly make a fortune at the expense of their students' lives and billions in taxpayer dollars. They are not going to give that money up without a fight.

Mark D. Olson

Dear Concerned Reader - When a social product, in this case law education, is monetized, reason and objectivity go out the door. When too many people are making too much money selling a product that the government subsidizes, that product will be sold until the market blows up.

The most recent version of the debt "bubble" movie was called "subprime" - in this case it will be "lawdebt" - thousands of law graduates with huge debt that they cannot pay back. The law schools and law profs are fine; they are printing and banking money. The only question is whether there are enough Professor Hendersons to begin to fashion solutions before too many more student lives are literally ruined.


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If you are considered a dpenedent student for financial aid purposes, it is essential that your FAFSA include parent financial information in order for your financial aid eligibility to be determined. Explain this to your parents, if necessary, your parents may contact the Financial Aid Office and we will explain why this information is required and to assure them that the information is kept strictly confidential.


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About the Blog

  • Rising tuition. Misleading employment statistics. Inadequate skills training. Law schools have faced plenty of criticism for their role in the struggles of young lawyers today. The National Law Journal has assembled a panel of legal educators and law graduates to discuss whether law schools are facing a crisis, and how they should respond to their mounting problems.

Law School Review Contributors

  • Brian Tamanaha
    A professor at Washington University in St. Louis School of Law who writes about law schools on the blog Balkinization
  • Erwin Chemerinsky
    Founding dean of the University of California, Irvine School of Law
  • John F. O’Brien
    Dean of the New England Law, Boston and chairman of the Council of the American Bar Association’s Section on Legal Education and Admissions to the Bar
  • Kyle McEntee
    A 2011 graduate of Vanderbilt University Law School and the executive director of Law School Transparency, a nonprofit group advocating for legal education reform
  • Lucille Jewel
    Professor at Atlanta’s John Marshall Law School who has written about the problems faced by recent law school graduates
  • Michael A. Olivas
    A professor at the University of Houston Law Center and the current president of the Association of American Law Schools
  • William Henderson
    Professor at Indiana University Maurer School of Law—Bloomington who studies the legal profession

Law School Review: Further Reading