The cost of legal scholarship

Over the past few weeks I worked with David Segal of the New York Times to create estimates of how much tuition money ABA-accredited law schools currently collect, how much legal scholarship gets published, how much of the former is used to pay for the latter, and how these figures have changed over time.  It was an interesting and fun exercise, and some of the results were published yesterday.

In this post I'm going to review the raw numbers involved in the analysis, which are quite striking in a number of ways.


TUITION

Calculating how much tuition law schools nominally charge is easy; figuring out how much they actually collect is trickier.  We have very precise data on nominal tuition rates and total students enrolled at ABA-accredited schools, so figuring out the nominal cost of legal education to students is a simple matter of multiplication.  The actual amount of tuition collected is, of course, a different issue, because of school-funded grants.  I took a conservative approach to this question, and assumed that the approximate present mean discount on tuition paid by ABA law students collectively (about 20%; the median discount is zero) has remained constant over the past 25 years, although there's good reason to believe it has grown somewhat.  All figures are expressed in constant, 2010 dollars rather than nominal dollars, that is, they've been adjusted for inflation.

2010

Actual tuition (discounted for grants and scholarships) paid by JD students at ABA-accredited law schools:   $3,655,017,960

2005

Actual tuition paid by JD students:  $2,882,560,973

2000

Actual tuition paid by JD students:  $2,141,409,942

1995

Actual tuition paid by JD students:  $1,899,746,851

1990

Actual tuition paid by JD students:  $1,478,561,524

1985

Actual tuition paid by JD students:  $1,051,454,096

Note that almost all of this growth in tuition revenue was a product of the increased cost of legal education, rather than in law school expansion, which has been fairly minimal over the past 25 years.  While enrollment increased by 22.4% between 1985 and 2010, tuition revenue increased by 248.6% in constant, inflation-adjusted dollars.

How much of this money goes to subsidize legal scholarship?  This is a more speculative calculation, which we ended up making in the following way.  Assume one half of law school operating costs consist of faculty salary and benefits.  Assume further that (quite conservatively) 80% of total faculty compensation goes to tenure-track faculty who are expected to produce scholarship.  Assume that these faculty are supposed to spend 40% of their professional efforts on producing scholarship (a typical putative evaluation metric for faculty is 40% teaching, 40% scholarship, and 20% service. This formal metric actually understates, to put it mildly, the value law schools, and especially higher ranked schools, place on scholarship relative to teaching).  This yields an estimate that 16% of a law school's operating costs are supposed to be dedicated to subsidizing the production of scholarship.   The figures in the article on tuition money spent per student subsidizing scholarship represents the pro rata share of tuition money that goes toward paying for scholarship, i.e., 16% of tuition is spent on subsidizing scholarship (since a significant part of a law school's operating revenues come from sources other than tuition, the total amount of money spend on subsidizing scholarship is quite a bit higher than the figures quoted in the article).

LAW REVIEW ARTICLES

One can quibble -- and more than one legal academic surely will -- with various aspects of this estimate. Still, it allows for further estimates regarding how much law students are paying for, generally speaking, law review articles (there are of course other forms of legal scholarship, but articles in law journals still represent the overwhelming bulk of publishing done by American legal academics).  How many law review articles authored by tenure-track professors at ABA law schools are getting published each year?

This question requires drawing various somewhat arbitrary definitional lines.  I excluded from these calculations anything published in a venue other than the current list of journals categorized by the Current Index to Legal Periodicals as American law journals in print (this excludes among other things a bunch of purely electronic journals, so these numbers are again conservative).  I also excluded anything less than ten pages long, thus eliminating short symposium contributions, tributes to retiring luminaries, etc.  

First, here are the number of American law journals in print per CILP's categorization:

1960:  118

1970:  186

1980:  282

1990:  368

2000:  522

2010:  616

To estimate the number of articles published per year, as defined above, I took samples from a representative selection of journals for the year in question, counted the publications in those journals, and extrapolated to the CILP list.  I also examined the Index to Legal Periodicals and Books to see if the figures were consistent with the growth rate in that publication. 

Articles published in American law journals:

1970:  1650

1990:  4255

2010: 9856

How much of this growth rate is due to the increase in the number of tenure track law professors?  From estimates derived from AALS directories I estimate that there were 3289 tenure track law professors in 1970, 5829 in 1990, and 7791 in 2010.  This would mean that:

Between 1970 and 2010 tenure track faculty increased by 136.9%

Total legal scholarship published increased by 497.6%.

Between 1970 and 1990 tenure track faculty increased by 77.2%.

Total scholarship published increased by 157.8%.

Between 1990 and 2010 tenure track-faculty increased by 33.7%.

Total scholarship increased by 131.8%.

So the major increase in the size of tenure track faculties took place largely between 1970 and 1990, but the bulk of the increase in per capita scholarship has taken place over the last 20 years. (Not coincidentally, this latter period correlates with the creation of and eventual legal academic obsession with the USNWR rankings, which give considerable weight to both academic reputation and spending per student).

 

All this yields some estimates of how much the average law student is paying annually for legal scholarship now, as compared to the student's predecessors.  Again, all figures are inflation-adjusted and stated in current dollars:

1985:   Each student paid an average of $1424 in tuition to subsidize the production of legal scholarship.

1990:  $1854

1995:  $2349

2000:  $2740

2005:  $3286

2010:  $4028

The good news for current law students is that they're each paying only forty-one cents per law review article, which may (or may not) sound like a bargain.  The bad news is that the graphomania of our profession has reached a point where forty-one cents per article means an average 2010 law school graduate paid around $10,500 in tuition toward the publication of law review articles, and a current 1L is likely to pay closer to $15,000 by the time he or she acquires a JD degree. 

Whether and to what extent this massive increase in both the cost and amount of legal scholarship is a desirable development will be the subject of another post.