Paul H. Edelman (Vanderbilt University School of Law) has posted A Derivatives Market in Legal Academia (12 Green Bag 2d 157 (2009)) on SSRN. Here is the abstract:
Building on the success of derivatives markets in the financial arena, I show how similar markets can be used to hedge risk in legal academia. Prudent use of these markets will generate cash, mitigate errors in hiring, and increase the academic prestige of law schools. In short, they can do for legal academia what they have already done to the financial world.
And from the paper:
Consider the problem of High-theory Law School (HLS). It is about to hire the BSC, but there is uncertainty as to whether he will write anything that might burnish the HLS brand. On the other side is Our Little Sisters of the Poor Law School (OLSPLS), which de- sires to advance its scholarly profile but is unable to hire any candi- dates who are likely to do so. Suppose that HLS bought a put from OLSPLS for the writing of the BSC. If the papers that the BSC writes are not very good, HLS can ship them off with any citation counts, page counts, etc., now credited to OLSPLS. OLSPLS makes some money on the front end and, even if the put is exer- cised, gets credited for some scholarship that it would not likely get any other way. HLS is protected from low quality work for a small price. The downside risk to HLS of hiring the BSC is hedged, and OLSPLS potentially gets some exposure that it would never see otherwise.
Unfortunately, Edelman fails to specify the mechanism for the transfer of scholarship on an institutional basis--but we can easily imagine the adoption of the basic model of the film industry--where films are owned by firms rather the authors (auteurs). This suggests the possibility of the emergence of a new model within the law school, with some faculty members assuming a role analogous to the "producer" in the film industry. Producers would assemble teams consisting of specialists. Such a team might consist of a doctrinalist, a normative theorist, an empiricist, a modeler, a data assembler, a cite checker, and a writer (and of course, some writers would specialize in rewrites that punched up the "market value" of the article). Each team would have a project director, who would coordinate the tasks of team members. Rather than a byline, published scholarship would be accompanied by a set of credits, e.g.:
A Vanderbilt Law School Production
Presented by Ed Rubin
A Derivative Market in Legal Academia
