Sunday, September 16, 2007

Did Chemerinsky Dodge a Bullet?

When I last saw Erwin Chemerinsky I asked him why he wanted to be the dean of a new law school. He was enthusiastic in response, talking about the opportunity to place his stamp on legal education as the founding dean of the UC Irvine Law School. I was skeptical and remain so. Chemerinsky has enormous talent and energy but I sincerely doubt that anyone could change legal education significantly without buy-in from the faculty of an already top law school.

Even solid but middling-ranked law schools can have at best a marginal impact on the course of legal education as a whole because no matter what they do to improve the actual outcomes for their students, they won't attract the very best students---and I doubt that, on average, an excellent innovative education for a mediocre student will produce better lawyers than a pretty good traditional education for excellent students. This explains why Yale Law grads---many of whom learn virtually no law at all while in law school---prove to be excellent lawyers; they have the credentials coming in.

Thus, to have an impact on legal education as a whole (as opposed to in one's own school only), the founding dean of a new school must first create an excellent school, and that's not easy to do. Perhaps a top-flight university without a law school (Princeton is the obvious example) could create a new law school that would instantly be top-ranked. But to create an excellent law school at UC Irvine---or even one that would compete for students with Boalt, UCLA, Hastings, and UC Davis---requires, at a minimum, tons of money. A prospective student faced with a choice between UCLA and UC Irvine will undoubtedly choose UCLA unless lured to Irvine by the promise of reduced tuition, free room and board, etc. Thus to boost the numerical qualifications of students, and thus US News rankings, Irvine would need to "buy" students for a number of years until the trend became self-sustaining.

The same goes for faculty. Top faculty are not going to relocate to an unknown entity without the promise of something. A lot of money might be enough for some, but for others there will be other requirements, including such things as light teaching loads or the promise of the ability to teach courses they've taught in the past. The latter sort of promise would then work against curricular innovation.

I don't know exactly how much money it would take to establish UC Irvine as a top-flight law school, and thus one that could be a leader in legal education more broadly, but I suspect the university doesn't have enough. I also have real doubts about whether the strategy I have outlined would be the best use for a giant barrel of money in the UC system. In any event, we're especially unlikely to see progress on this front with Chemerinsky out of the picture. The adverse publicity from this episode will make it that much harder for UC Irvine to establish itself as a good law school, much less a national leader.


Neil H. Buchanan said...

Mike: Can we take this as a public declaration that you're not interested in the job?

Michael C. Dorf said...

Neil, au contraire. Obviously I'm just playing hard to get so as to increase my leverage.

Yonatan said...

Seems like a rather depressing conclusions - if I understand correctly, what you're saying is that legal scholarship can be effectively reformed only through institutions such as Yale, that are (i) hundreds of years old, hence reluctant to break away from tradition (and from contributions from tradition-respecting alumni); and (ii) would do extremely well (in terms of outcomes) regardless of anything that they teach, simply because their students are top notch - i.e., have very little incentive for reform. Am I missing anything?

Michael C. Dorf said...

For Yonatan, the answer is not entirely. I think that non-top-tier institutions can innovate but that their innovations need to be adopted by top schools---or they need to become top schools---for the innovations to take hold. The last great innovation in law teaching was the case method, which was pioneered by Langdell at Harvard in the 19th century. Clinical legal education may, in time, prove to have been a breakthrough innovation, but for now it remains an "add-on" to the Langdellian curriculum. The schools that have made it central to their curriculum, e.g., CUNY, Northeastern, have had some local success, but that has not translated into moving themselves schools up in the pecking order or getting the innovations widely adopted. At least not so far.

The picture is even more stacked on the scholarly side. All of the major scholarly movements of the last 100 years --- legal realism, legal process, critical legal studies, law & economics, etc --- have been centered at elite institutions. But these have been genuinely new movements at institutions steeped in tradition, and so, at least with respect to scholarship, such traditions have not impeded innovation.

Sally said...

I'll agree with you that law school grads from such illustrious institutions as Yale (and possibly your own) learn very little law while in law school but I have to disagree with you that they make the best lawyers. What is your evidence for this?

I also disagree with you that "mediocre" schools don't attract the best students. What do you mean by mediocre anyway? People select a law school to attend for a lot of different reasons (assuming they are offered admission), cost and location being two main considerations, not just how exclusive the school represents itself to be.

Presumably you are not really this arrogant and elitist?

Maxine Weiss said...

The Irvine Co. is building them all free housing. Free housing for all who grace the campus with their presence!

Michael C. Dorf said...

In response to Sally, I'll just say that, yes, I am this arrogant and elitist if what you mean by that is that I believe that, on average, students selected for admission to the most selective schools turn out to be better lawyers than those from less selective schools. This does NOT mean that the less selective schools (which I'll use synonymously with "mediocre") produce no excellent lawyers or accept no excellent students. When I taught at Rutgers-Camden for three years I had a good number of terrific students who were every bit the equal of my Harvard classmates and my Columbia students. Some came to Rutgers for the lower tuition, others because they were tied to the area (although that alone is not a sufficient explanation for choosing Rutgers over Penn), and still others were simply very bright people who either under-performed on standardized tests or had not worked all that hard as undergrads. But the bottom line is a claim about the average student and there is no question that the "ability curve" is shifted to the right at the elite schools. That's my observation from having taught hundreds of students at Rutgers and thousands at Columbia.

Now, one can still say that success on law school exams and seminar papers doesn't foreordain success in the world of practice, and that there are even some lawyering skills, such as negotiating, that students at less elite schools are likely to have in greater abundance (because of some claim about "street smarts.") But, to reaffirm my arrogance and elitism, I stand by the claim that the single most important desideratum of good lawyering is analytical ability. (A good work ethic is surely important too.) When admissions offices at elite schools do their job well, they detect that ability in students who may have lacked various advantages, so this is NOT a claim about how analytical ability correlates with prior life experience, background, etc.

Finally, even if I'm wrong about what, on average, produces good lawyers, I feel especially confident that the legal profession is, as a matter of observed social fact, quite prestige-conscious, so that innovations not adopted by prestigious institutions will not likely catch on.

Michael C. Dorf said...

One further point about "mediocre" schools that will no doubt inflame some readers: I meant this as a description of students, not faculty. In my experience, the academic job market is sufficiently competitive that schools with (on-average) so-so student bodies tend to have excellent faculties. So I meant to insult only the students and graduates of "mediocre" schools, not their faculties!

J said...

Agree 100% on the process for adopting innovations, but:

"students selected for admission to the most selective schools turn out to be better lawyers than those from less selective schools"

What evidence do you have that this is true? I'm not saying it isn't, but you seem to be expressing a gut feeling, not an established fact.

Mortimer Brezny said...

Prof Dorf:

Though you aren't claiming that "mediocre" schools lack any brilliant students who become great lawyers, you appear to be saying that only brilliant analytical minds destined to succeed get into elite law schools because elite law schools specifically select for such students. If you really believe that no graduates of elite schools are incompetent idiots who underperform later in life, then what explains your incessant criticism of George W. Bush?

Legal said...

Michael: I admire your willingness to stick to your guns here. But I think you'll have to yield on one point: it is not true that major academic movements all began at elite schools. How do you account for law and society, which began at -- Wisconsin?

Michael C. Dorf said...

In response to Mortimer:
Yes, of course the elite schools screw up and admit some dolts (although W did not go to law school, so tax Yale College and Harvard B School with him).
In response to "legal," I concede that law & society originated at Wisconsin. So if it counts as a "major" scholarly movement, then I concede the point, although I'd also note that Wisconsin is one of the country's top public universities.

Mark said...

Free housing? I've seen comments on this and several other blogs indicating that the Bren Company is supposedly building free housing for UCI faculty. Actually,a non-profit entity created by the Regents of California builds housing on UCI-owned land and sells it to faculty at below-market rates, who must in turn sell it back when they move at below-market rates. It's a great benefit for faculty (albeit without much equity gain), but it's not free housing provided by Bren.

Mortimer Brezny said...

Yes, of course the elite schools screw up and admit some dolts

I think it's likelier that few of the students of elite schools are all that exceptional and the rest are simply successful later in life mostly because of the academic reputation of their school and the continual boost it gives them in personal interactions. This cascade effect has nothing to do with student quality.

John said...

Judging from his CV on the Columbia law school website, Professor Dorf has never actually stepped into a courtroom or advised a client in his life. I am sorry but being a clerk, even for a Supreme Court Justice, and teaching at Columbia does not qualify him to be any kind of a judge of who is and is not a good attorney. Professor Dorf may have gone to the right schools, but I suspect he teaches at Columbia rather than practice law for a reason. Please leave the judgment of attorney to those of us who actually practice law.

For the record yes, I went to one of those abominable middle tier schools of which you speak. But, unlike you people's freedom and livelihoods have depended upon the job that I did for them. Until you are willing to do the same, spare me your opinions of who can and cannot practice law.

Mortimer Brezny said...

Frankly, the snobbishness of Professor Dorf's speculation has me reconsidering my opposition to Harriet Miers' nomination to the Supreme Court.

Michael C. Dorf said...

For the record, John, I have represented many clients, including for cases worth billions of dollars, including very recently, and some of the best lawyers with whom I've worked and whom I've opposed went to "mediocre" law schools. For the umpteenth time, I was making a point about AVERAGES.

Mortimer Brezny said...

John David R. Atchison, 53, an assistant U.S. attorney from the northern district of Florida, was arraigned in U.S. District Court in Detroit Monday afternoon.

This guy probably went to an elite law school. Caught trying to have sex with a 5-year old.

Mortimer Brezny said...
This comment has been removed by the author.
Yonatan said...

Just another point on this - Law and Society aside, the Law and Economics movement started in Chicago in about 1950; Director, Friedman, Coase et al have changed the way we think about the law in a law school that was not yet 50 years old at the time. True enough - Chcago Uni. had the big bucks from day one, but still, Chicago was presumably not considered on-par with any of the more established school when L&E made its debut on the scholarly scene.

Aimee said...

Michael C. Dorf said...
In response to Sally, I'll just say that, yes, I am this arrogant and elitist if what you mean by that is that I believe that, on average, students selected for admission to the most selective schools turn out to be better lawyers than those from less selective schools.

But you still haven't explained the evidence on which you base this conclusion.

Jim Chen said...

Mike, fellow Dorf on Law readers:

UC-Irvine has rehired Erwin Chemerinsky. So if indeed the decision to leave full-time teaching and research for a seat in a law school dean's office is a decision to swallow a bullet, then Erwin has chosen to swallow his bullet.

Let's wish him all the best.

Sally said...

Leaving aside the possibility that you have a vested interest in the notion that the best lawyers come out of the best schools, there is really no evidence to support your premise. Or there is no evidence without some definition from you as to what you mean by the best or excellent (which is the term you originally used). Do you mean defined by starting salaries? Surely not. Determined by the AV rating of the law firm where they get their first job? Probably not since that by itself doesn't tell us anything about the quality of the new lawyer.

There is one measure we could possibly both agree on though and that would be client satisfaction. And by that measure I've seen nothing that would indicate a graduate of a top tier school has any advantage over someone who attended a mediocre school.

If anything, the top tier graduate is at a disadvantage because often he or she thinks that because they went to Yale or Stanford or Columbia and was recruited by all these top law firms and got that big starting salary, that those are the things that matter. But they don't, not to the client. The client cares about results.

As to the mediocre schools having to accept mediocre students of necessity, this just isn't really the case either. I don't know anything about Columbia but I would have to believe that it admits far fewer than apply and that many who are rejected aren't rejected because they don't qualify, it's because there are only so many spots. Those applicants have to go somewhere else, to a second tier school most likely. And anyway, sometimes having only a bunch of brainiacs who are great at book learnin' but not much else doesn't necessarily make for the best academic environment.

I will agree with you on this, the best lawyers have outstanding analytical abilities. Almost important though is having the right mix of fearlessness, self-confidence and at least a modicum of humility, especially the latter because, as so many of those top flight grads find out quickly, nobody out here in the real world really cares where you went to school, they care about what you can do, how quickly you can do it and how well you can do it. Well, all that and billables.

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