First of all, the underlying rationale for the hierarchy is not cost of effort; rather it is the value added, using the average associate at a top law firm as the baseline. In other words, what can law professors supply the world that top-100 law firm associates usually could not. Indeed, a law professor might be very good and very efficient at churning out high quality legal theory or empirical work, so the cost is low to him or her. My interest is in the value added. Doctrinal work is low on my list because any good associate can, and largely does, produce that all day long. Although I did not explain this rationale in a separate sidebar, it is the theme that I use and mention throughout the list.
Maybe a thought exercise will help:
- First, gather 100 randomly selected law professors to select the top 10 examples of legal scholarship in each of my 10 categories (clearly, this is a thought exercise).
- Next, capture each of my categories in a short assignment, such as from "compile the law of X" to "develop a theory of the law of X and conduct empirical studies to test it in ways relevant to all disciplines interested in X."
- Assign the assignments to 1000 randomly selected 4th year associates from the American Lawyer top 100 firms.
- When their work product is returned, have the panel of law professors evaluate on average how it compares in each category to the "top 10" selected in step 1.
This is why I put empirical work high on the list. Yes, empirical work is also costly, but it is the type of work that a good scholar, because of the nature of the job and the demands of that kind of work, will be in a better position to provide. One of the comments to my original post suggested that by "empirical work" I mean just compiling numbers. I should clarify that what I mean is (as suggested by another comment) empirical work that tests data against theory, the way real social scientists do it. The reason I put it higher on the list than theory work, therefore, is because it puts the theory to the test. High quality empirical work of this sort is costly, but it is valuable because it illuminates flaws and strengths of the theory work.
To be sure, I recognize that scholarship fitting any particular category will fall on a range of quality, and we might use the categories Jim suggested to differentiate. Excellent doctrinal work is more valuable than half-baked legal theory. I think of my list as defining a typology of legal scholarship based on what law professors can add in terms of value to legal development and understanding. It is, in that sense, only a starting point for evaluation of any particular piece of work. There have already been, in addition to Jim's suggestions for different sets of criteria, and I am not holding mine out as the only one that has some usefulness by any means.
Lastly, talk of a hierarchy of scholarship is more difficult in law than it is in other disciplines, I suspect, because law enjoys the luxury of publication without peer review. But even in law, many members of hiring committees and promotion committees surely do apply some sense of what makes some kinds of scholarship more valuable than others as a general proposition. Whether they use mine, Jim's, or another, they are using one. So I think it is healthy to have a conversation about how we do it.