Lyrissa Lidsky asks:
Is it nonsensical to try to gauge productivity by measuring the numbers of pages written or amount of time spent writing? Shouldn't we gauge productivity by actually reading the works in question to try to decide how much they "count"? Are we uncomfortable with "quality" measures because they are too subjective, especially where the scholarship lies outside our own area of competence? Is "productivity" somehow a matrix of quantity and perceived quality? Should one good article count more than three mediocre ones (assuming we could agree what "good" is)? Are citation counts a better measure of what we mean by productivity than number of articles published? Have most faculties reached consensus on these issues?
I think the best answer to these questions remains Stephen Carter's patent analogy. As Lisa Larrimore Ouellette puts it:
My vision of legal scholarship was shaped as a 1L by reading Academic Legal Writing (I have the 3rd edition) by Eugene Volokh of the Volokh Conspiracy (highly recommended for new law students). Volokh argues that a good article should make a claim that is useful, novel, and nonobvious—paralleling §§ 101, 102, and 103 of the Patent Act. He credits this idea to Stephen Carter's 1991 Yale Law Journal essay, Academic Tenure and "White Male" Standards: Some Lessons from the Patent Law (pay access only, from JSTOR or Hein). Carter writes:
[M]y claim is not that every article must, in effect, deserve a patent if it is to be adjudged a good piece of work; my claim, rather, is that the works of scholarship that can meet the patent test are better—add more to human knowledge—than the works that cannot. So if one wants to argue the relative merits of different scholarly works, the patent law tests of novelty and nonobviousness provide useful and workable starting points.
Volokh goes beyond Carter by adding the § 101 utility requirement: "It helps if the article is useful—if at least some readers can come away from it with something that they'll find professionally valuable." ...
To the above "patent requirements" for articles, I would add the disclosure requirements of § 112. The article should "contain a written description" of the idea in "clear, concise, and exact terms."
To this I would add objective external factors. Yes, citation counts. True, they can be gamed, but they are basic validator for the relative significance of the work. Obviously, awards and prizes. Being selected for reprinting in anthologies or excerpted in case books.
