A value-based hierarchy of legal scholarship

J.B. Ruhl's hierarchy of legal scholarship is the most popular post in the history of Jurisdynamics and its associated network of weblogs. Even if a large number of bloggers and commenters had not mistakenly attributed J.B.'s post to me, I would feel the need to weigh in. And so I do.

Larry Solum's critique of J.B.'s hierarchy scores two crucial points. First, the very "idea of such a list, while amusing, assumes that there is a meaningful hierarchy." Second, J.B.'s "categories are conceptually odd." I attribute both of these implied faults to one flawed assumption underlying J.B.'s project: the belief that value of scholarship arises from the cost associated with this creation.

Although some of J.B.'s categories are distinguished by quality (such as the distinction between ordinary doctrinal scholarship and doctrinal scholarship on "interesting" questions), the overall arc of his progression from blog posts to empirical scholarship appears to rest on J.B.'s evaluation of the difficulty of different types of scholarship:

0, 1	Blog posts
2, 3, 4	Doctrinal scholarship
5, 6	Normative policy analysis
7	Legal theory
8	Interdisciplinary studies
9, 10	Empirical scholarship

Barbie's right: Empirical scholarship is hard!

Aside from its curious omission of legal history (probably a subspecies of interdisciplinary work), J.B.'s hierarchy has won a big following in very little time. By its own terms, J.B.'s hierarchy succeeds because, for the most part, (erudite) legal theory is harder than doctrinal scholarship, and (thorough) empirical scholarship is probably harder than any other form of work ordinarily undertaken by law professors. The problem, of course, is that the difficulty of a scholarly form or methodology has no necessary bearing on its quality. Stated more formally, my objection is this:

Value  ≠  Cost

A considerable amount of misery in law and in economics flows from the evidently natural tendency to equate value with cost. In the language of the law of regulated industries, for instance, J.B. has implicitly embraced cost-of-service ratemaking principles, even though real markets and astutely designed approaches to deregulation favor value-of-service ratemaking. (For diehards who want the technical details, I offer an overview in this paper and a more comprehensive critique in this paper, which explains how Greg Sidak and Christopher Yoo, notwithstanding their great intelligence, are irredeemably wrong about pricing rules.) It's intuitively appealing, but ultimately -- and sometimes gravely -- wrong to equate value with cost.

Consider the classic case, Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591 (1944) (discussed at greater length in this forum's lamentation on "Disaster's dead hand"). Hope upheld a ratemaking order based on the historic cost of natural gas extraction operations. Good constitutional law, terrible economics. What Justice Jackson said in his Hope dissent applies not just to natural gas production, but to the entire world of economic enterprise: the "service one renders to society ... is measured by what" the producer "gets out of the ground, not by what he [or she] puts into it." 320 U.S. at 649 (Jackson, J., dissenting). In other words, "there is little more relation between the investment and the results than in a game of poker." Id.; cf. Steven Lubet, Lawyers' Poker: 52 Lessons Lawyers Can Learn from Card Players (2006).

A proper hierarchy of legal scholarship, therefore, demands attention not merely to its cost (as measured by the effort invested in it) but also to its value. What Hope Natural Gas said of ratemaking makes sense here: "It is not theory but the impact of [scholarship] which counts." 320 U.S. at 605.

How then should we measure scholarly impact or value? Over at MoneyLaw, another team of bloggers to which I belong has plumbed the virtues and vices of empirical measures such as citations and SSRN downloads. With respect to the grandest questions of scholarly merit, I suspect that those measures, even if perfected, would fail to capture the overall sense of value at stake. For the time being, then, I propose an alternate hierarchy based loosely on the value ascribed to legal scholarship by its potential audiences:

1. Self-referential scholarship

Scholarship that does nothing more than express the author's interests cannot be meaningfully distinguished from overt appeals that can be reduced to two words: "Hire me." Why go through the trouble? It's much easier, not to mention more honest, to forgo the pretense of writing scholarship in favor of posting a curriculum vitae.

2. Scholarship solely of interest to other law professors

If scholarship has a potential audience circumscribed by the AALS directory of law professors, it will probably be read by exactly two dozen people -- the author's cronies, plus twelve law students snookered into checking its cites. It may be hard to find another collection of 24 people who are smarter, but the social value of this scholarship is at best constrained.

3. Scholarship solely of interest to law review editors

By "law review editors," I mean the tuition-paying variety. The difference between this category and category #2 is that the ability to appeal to 26-year-old law students ensures greater exposure for one's work. Taking a page from biology's r-strategy, one may reasonably presume that greater dissemination yields, on average and over the long run, greater memetic success.

4. Scholarship addressing lawyers, judges, and legislators

Call it "doctrinal" scholarship if you want to -- and I know that most of us who teach law for a living do so with undisguised contempt. But legal decisionmakers, from judges to regulators to legislators, enjoy certain powers that law professors lack: the power to convert and condemn property, the power to make other people do things, the power to incarcerate people deemed unworthy of liberty, and so forth. Legal power may rightly breed contempt, but it also demands some measure of respect. Even more so in academic departments devoted to the study of legal power.

5. Scholarship addressing fellow scientists

I suspect that the desire to connect with fellow scientists is what motivates J.B. to give so much weight to empirical scholarship. Again, I stress that it is "not theory but .. impact" that matters. Whatever our methodology, we legal scholars approach our very best when we engage our fellow scientists on terms that are meaningful to them and helpful to all participants in scientific dialogue.

6. Scholarship that solves a significant social problem

The ultimate test of scholarship, in any discipline, is whether it improves the human condition. We should all aspire to test the value of our work by this touchstone.

One final note: Mathematically inclined readers will notice that J.B.'s hierarchy, as I reduced it above, and my hiearchy can both be measured on a six-point scale. It is therefore possible to combine J.B.'s cost-based hierarchy and my value-based hierarchy into a game played with dice. May all of us hope that our scholarship comes up boxcars every time.