A heap of sand, law review publishing, and the high cost of legal education [updated]

There’s a paradox called Sorites Paradox which takes numerous, related forms.  Here’s one.  You’ve got a heap of sand.  If you take away one grain, do you still have a heap?  Of course.  Therefore, given that Heap – 1 grain = Heap, “[i]t follows, absurdly, that even a single grain makes a heap. Thus soritical reasoning appears to show both that no number of grains make a heap and that any number of grains make a heap.”

It really isn’t much of a paradox.  The problem, of course, is in the vagueness of language—specifically, the word heap.  We all know that if you keep removing grains of sand, one by one, eventually you will no longer have a heap.  People may not agree on the exact point at which that occurs, but we would all agree, for example, that a mere two remaining grains of sand, sitting sadly side by side, is no longer a heap.

Along the lines of the heap-of-sand paradox, when is the author of a law review article no longer the author?  What if he first gets research help before writing the first draft?  Then he has ten other people read it and comment on it, subsequently incorporating their ideas?  Then he takes it to a conference of academics who ponder deep thoughts aloud, giving the author more ideas which are also incorporated into “the piece,” as law professors call their articles.  Is the author still the author?

Much like the slowly disappearing heap of sand, we’ll all probably have different opinions about how much help an author can get before he can no longer claim “the piece” as his own.  But try this one on for size.  One author who recently published in the nation’s premier law journal (sorry Yale and Stanford) lists the following assistance in the name-dropping author’s footnote near the beginning of the article:

Ø      The author used 11 research assistants

Ø      The author used 4 people for “reference support”

Ø      The author presented the article at 13 academic conferences or workshops around the country from the West Coast to the East Coast and even a few places in flyover country (as the coastal elites like to call the Midwest)

Ø      The author received “detailed comments” from 13 academics

Ø      The author received additional feedback from 43 other academics

Ø      Finally, several editors at the journal worked on the article

Two preliminary matters.  First, I am not trying to single out a particular law prof.  Quite to the contrary, this is absolutely standard practice in the legal academy.  This is just the first article I stumbled upon when searching for an author’s name-dropping footnote. (I went straight to the HLR website, which I figured was my best bet.)  Second, this prof did absolutely nothing improper.  In fact, this type of thing is encouraged in the academy.  If it wasn’t, the prof wouldn’t be listing all of the prestigious conferences, workshops, and other law profs in the author’s footnote near the beginning of the article.

But to the main point of this post, the paradoxical question emerges: With that level of help or input, is the author still the author, or is it now a group project?  I don’t know.  I can only say that I wouldn’t feel comfortable getting that level of input on my own work.  Nor would I need such help.  Nor would I burden that many people with reading my article—it strikes me as amazingly egocentric.  And if I were a law prof, unless I was really interested in the topic or really liked my colleague (which I probably wouldn’t), my reaction upon being asked to read someone else’s article would be: “Do your own damn work!”

Finally, to my secondary point, this approach to law review articles is why law school costs so much to attend.  The above prof teaches at Berkeley and probably makes, what, $200k per year as a junior prof?  (Most schools probably start at much less, about $110k-$140k, but Northern Cal. is crazy expensive.)  Figure that profs write one article per year, and “scholarship” accounts for 40 percent of their work in the 40/40/20 model, with 40% of their time dedicated to teaching, 40% to writing the article, and 20% to “service,” which means sitting on diversity & inclusion committees and whatnot.  So if you’re allocating the fixed cost of salary, that’s $200,000 * .40 = $80,000 (ignoring benefits and overhead allocations).  Then add the cost of the conferences and workshops.  What does that come to, about $3k on average for airfare, Uber fees, lodging, meals, etc.?  That’s $3,000 * 13 = $39,000.  Research assistants are probably free labor, so we won’t count them.  But what about the people who do “reference support”?  I looked one up, and he is an employee and draws a paycheck.  And there are four of them.  Even if all of them earned only $70k each and spent only 1/20 of their time that year working on this prof’s article, that’s another $14,000 (again excluding benefits and overhead allocation).  Finally, ignoring the cost of Scholastica submission fees, our grand total = $133,000 per article! 

Am I crazy, or does my back-of-the-bar-napkin estimate sound reasonable?  A quick check of the internet reveals a study was actually conducted on this a decade ago.  It estimated the cost of a tenured prof’s annual law review article was, back then, up to $100,000.  Modest annual increases over the intervening decade would easily get you to my $133,000.  The costs will vary, of course, based on the prof’s pay, the number of conferences attended, etc. 

I’ve written 36 law review articles on my own time and for no pay; therefore, at least to me, that seems like an incredibly high cost for “scholarship.”  Is it worth it?  The author of the decade-old study thought not.  From the ABA article about the study: “He cited research suggesting that 43 percent of law review articles are never cited elsewhere. ‘At least a third of these things have no value,’ he said. ‘Who is paying for that? Students who will graduate with six figures of debt.’”

Well, back to editing my own currently-under-submission law review article.  By comparison, my stats on this article are as follows: 0 research assistants, 0 reference support staff, 0 conferences, and 0 workshops!  I did, however, bother one person to read it and give me feedback.  Total cost to produce: $0.00, excluding opportunity cost.  The psychic value of doing your own work: as the commercial says, priceless.

UPDATE:  A fellow blogger pointed me to a public database for all California employees.  The above prof actually makes $267,111.00 rather than a mere $200k as I had estimated.  (That adds about another $27k to the cost of "the piece.")  Not a bad haul for your first year of teaching, having entered the academy with (arguably) one year of legal practice experience under your belt.  Good "work" if you can find it!  The downside?  You may be asked to read other profs' law review articles.