More Sophisticated Than What the Clientele Wants
posted by Michael Kang
While reading this post by Paul McGreal over at Faculty Lounge about the rising costs of legal education, I was struck by the unexpected relevance of political scientist John Zaller‘s work on media politics. First, something about Paul’s post. Paul underscores the argument that “the cost of legal education bears no necessary connection to what it would cost to provide a quality legal education in an efficient manner.” He implicitly takes on a prominent theme in the scamlaw narrative that costs are driven up by the faculty “‘stealing’ from students for their own selfish desires” by engaging so much time and energy on academic scholarship. Scholarship and even the related teaching of legal theory, according to a common narrative, diverts law school resources from the type of practical training—often argued to be applied skills and black-letter law—most valued by students as helpful to them in a challenging labor market.
I leave aside a defense of scholarship for the time being, but I think John Zaller would say that this debate over the place of legal scholarship is characteristic of a chronic tension that defines every professional field. In his forthcoming manuscript A Theory of Media Politics, Zaller posits that members of a professional field seek to produce a more sophisticated product, based on their own professional values, than the typical consumer actually demands and is willing to purchase. According to Zaller, “Every professional group wishes, if possible to have as much business as possible. Yet they typically wish to offer products that are more sophisticated than what the clientele wants.”
As a result, professionals always confront a basic tension between market pressures from the typical consumer on one hand and their own desires to produce a more sophisticated product on the other hand. Applying this notion to television news, Zaller finds that media markets with greater market competition among news outlets tend to feature “lower quality” local news (e.g., more tabloidish, less high-level reporting) compared to media markets with weaker market competition. Zaller postulates a basic Rule of the Market—that increases in market competition lead to lower news quality—but that in the absence of competition, “journalists seem to be able to persuade owners to cast their fates with respectable ‘high-quality’ news.” In my view, Zaller nails the dynamics of big city news media by astutely capturing this active tension between professional and market values.
You can see how Zaller’s ideas generalize to academic scholarship.
Faculty possess a particular set of scholarship-oriented professional values and enter academic careers largely (though not exclusively) to generate what they consider a high quality product in terms of research. Schools, at least the major research institutions, support those professional values by judging faculty largely on the basis of those values through a complex set of institutions, including peer review for publication, promotion, and tenure. As Zaller notes only in passing about the professoriate, “whether the insulated life of university professors can be justified or not, professorial life would be quite different if professors were more directly exposed to market forces. Without much doubt, there would be more demand for high-quality teaching and less opportunity for research.” Along these lines, when university budgets and enrollments suffer, we see these days a partial erosion of tenure and less support for academic scholarship that doesn’t promise more immediate practical payoffs.
What I like about the Zaller-inspired framing of law school economics and politics is that I think it gets right faculty’s professional understanding of scholarly research as a sophisticated but core element of high quality higher education in the context of countervailing economic pressures. Whether or not you agree with this understanding, I think law faculty are like journalists who wish to offer a refined product that much of the market doesn’t always quite appreciate and value at the same level. The scamlaw narrative thus tends to underestimate faculty devotion to scholarship as simply a selfish diversion from their real jobs as dictated by students as customers, rather than a defining commitment to what many academic professionals see as a necessary element of a richer form of legal education. What the economic challenges only expose, and the scamlaw narrative often misinterprets, is this ever-present tension between market-oriented and professionally-defined conceptions of what law schools and faculty ought to be doing even in the best of times.
August 29, 2012 at 4:48 pm
Posted in: Law School (Scholarship), Law School (Teaching)
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Responses (5)
Brett Bellmore - August 29, 2012 at 8:01 pm
I think this kind of misses the point. People pay tuition for an education. When some of that tuition is spent on research and scholarship, instead of educating them, they’re not getting a “more sophisticated” product than they wanted.
The tuition money spent on that isn’t providing them with product at all.
Lawrence Cunningham - August 29, 2012 at 9:58 pm
Excellent post. It’s also true that participating in scholarly discourse, even if student demand for it cannot be plotted on a microeconomic curve, enhances the quality of teaching, what they experience in the classroom.
BDG - August 30, 2012 at 9:26 am
Or, to put it another way, both higher education and quality news provide two goods: one, a private good for direct consumers, and two, a public good everyone shares in. Understandably, consumers only want to pay for the private good, but if they get their way, society loses.
Michael Kang - August 30, 2012 at 2:04 pm
Thanks for these comments. I guess it’s worth spelling out more explicitly what I take to be the assumed connection between scholarship and the “more sophisticated” teaching product offered at top-ranked schools. The assumption is that faculty engagement in scholarship immerses faculty in the world of top-level legal thought that they then bring to their teaching, as Larry says. I think this is why legal education at a top-ranked school like Yale can be understood as superior (at least by some, if not by all)—student exposure to academic superstars distinguished by their scholarly credentials more so than by their practice experience.
A.J. Sutter - August 31, 2012 at 6:32 am
The scamlaw economics-based argument is flawed internally. But the counter-argument in defense of current scholarship also has problems.
Professors are already exposed directly to market forces. Their “customers” are the universities who hire them — the ones who “support those professional values by judging faculty largely on the basis of those values through a complex set of institutions, including peer review for publication, promotion, and tenure.” This is especially true of law professors.
Law schools are also exposed to market forces. Demand from students for law degrees seems to be high. Some might claim there’s a market failure here: it’s a favorite trope of this blog that if the ABA’s monopoly on accreditation were shattered, the cost of legal education would come tumbling down. But the recent exchange between Erwin Chemerinsky and Brian Tamanaha at Balkinization points up some reasons why new institutions might choose an expensive path, regardless. For one thing, even if students want a school to prepare them for passing the bar exam, they also want to get hired. Even some lower-paying jobs, such as in the public interest, are very selective about whom they hire. The result is that even a school that isn’t targeting giant corporate firms needs the material wherewithal to acquire a good reputation, in order to provide students what they want. Market forces, again.
OTOH, while faculty devotion to scholarship and the “offer[ing] [of] a refined product that much of the market doesn’t always quite appreciate and value at the same level” might seem very noble, that nobility shouldn’t automatically be imputed to whatever gets “produced.” Many of the greatest and most learned minds of the Middle Ages worried about how many angels could dance on the head of a pin. A lot of legal scholarship today is comparable. That partly mitigates an outsider’s sympathy for the tensions to which faculty are subject these days.
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