Monday, September 17, 2007

Dorf on Leiter on Althouse on Dorf on Chemerinsky, or Am I Really an Arrogant Snob?

My skepticism about what Erwin Chemerinsky could accomplish as the dean of a not-yet-established law school led to numerous outraged comments on my blog and led Ann Althouse to accuse me of being an elitist snob. Brian Leiter, who rarely agrees with Althouse about anything, agreed with her about this, although Brian did note that I seemed sensible in the comments replying to similar points by readers. Meanwhile, the law world has moved on to more important matters, including the nomination of Judge Mukasey to be Attorney General and, more directly to the point, the decision by UC Irvine to make Chemerinsky its dean after all! (See press release here.) So first, I'll congratulate Erwin and UC Irvine. I hope they both prove me wrong and do indeed create what they say they desire: "one of the finest law schools in the country."

Now onto the much less important question. Is Althouse right? Am I an elitist snob? Part of the problem here is that the word "mediocre" can be used to mean either "average" or "crappy." I meant it in the former way but apparently Althouse and others assumed I meant the latter. Here is what I said in the comments section in response to a similar accusation from a reader identified as "Sally" who asked whether I could be "this arrogant and elitist."
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.
Althouse also raises (and Leiter appears to endorse) a different objection: Why should someone have to have an impact on legal education as a whole rather than just one institution to want to lead that institution? To which I respond: Of course one could want to shape legal education (or anything else) just in one's home institution, but that doesn't make sense of Chemerinsky's move. He had no prior tie to UC Irvine, and so no special reason to want to make the best possible law school there in particular. His professed reason for wanting to start from scratch was to escape the path-dependent shackles of existing commitments. The point of my prior post was to say that building a school that is nationally recognized for excellence---a goal that Chemerinsky and the Chancellor now publicly tout---to an important extent works against the sort of wholesale innovation that would make it interesting to start a school from scratch.

28 comments:

Mithras said...

I am stunned that people seem not to have understood the point of your post. Well, except for Althouse.

-M

Brian Leiter said...

Actually, I wasn't agreeing with the "elitist snob" point, but about what seemed a somewhat overbroad generalization about "mediocrity" among law students not at the top law schools. Your comment, to which I linked, clarified the matter. Since I have to confess I almost never read the Althouse blog, I'm not sure whether I do or don't agree with her much. I found this item of hers only because Blog Emperor Caron linked to it in one of his Chemerinsky round-ups.

Orin S. Kerr said...

Given that Chemerinsky's apparent basis for taking the Irvine deanship is to make a mark on legal education, I gather the key question is whether you're right that "innovations not adopted by prestigious institutions will not likely catch on."

I'm not so sure. It seems to me that most law schools today are focused on their market position. Schools are focused on doing what they can to go up the U.S. News ranking, to do better in their yields against their competitor schools, to increase the number and quality of applicants, and to place their graduates in the best possible jobs. My guess is that most schools will adopt an innovation if they think it helps them achieve those goals, and they won't adopt an innovation if they think it won't.

If I'm right about this, then what the most prestigious schools do will often appear irrelevant to the decisions of most schools. What matters to the Dean and Faculty is what will work for them, which my be different than what works for the most elite schools.

Orin S. Kerr said...

Actually, I should be more clear: Many schools see those goals as their own, and I believe the number is increasing, but I do not know if a majority of schools has those priorities (justifying the generalization to what "most" schools want).

Sally said...

"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."

The legal profession might be "quite prestige-conscious" but the its customers aren't quite so caught up in all that.

In any event, if the point here is that Chemerinsky will not be able to do anything revolutionary at UC Irvine because he's going to lack the tools (superior faculty), the raw material (the best students) and the national reputation (the institution I mean, not his own), then perhaps he can at least accomplish one thing so few law schools do all that well these days: actually teach the students some law.

Clients will appreciate this. Those in the know really dislike having to pay all those Westlaw charges for some junior associate to educate himself about Article 2 remedies in the event of breach. This is assuming he knows the issue falls under Article 2 in the first place.

Tam said...

Prof. Dorf, with respect to recruiting top faculty, if Dean Chemerinsky can use his own status to bring a few top folks with him, then that, combined with being near another top-flight school (UCLA) might create a network effect, and very attractive $$$$ offers MAY do the trick, after some time.

As Prof. Leiter, who also compiles the Philosophical Gourmet Report, is well aware, in the early 1990s, Rutgers built a top-flight philosophy program by throwing tons of money at philosophers (as of 2006, they had 10 philosophers paid over $180k, at least 7 over $200k, and the top two were paid $248k and $249k). This network effect has ensured, that Rutgers, Princeton, and NYU have consistently been the top 3 philosophy programs for quite a few (I think) consecutive years now.

Perhaps one effective strategy would be to build prestige in a particular area (Con Law seems to make sense in this case) by recruiting other con law heavy hitters, and then expanding to other areas.

But even if this works in building a kick-ass faculty, it's not enough because prestige in legal education is also based in large part on having the best students. But the catch-22, as you point out, is that the best students won't go to a school that really needs them, but only to the ones that already have plenty of other excellent students.

In this way, legal education is like another thing about Rutgers: its pre-2006 football team, which couldn't prevent its own in-State talent from going to other out-of-state schools essentially because the team didn't already have talent. So I think even if Dean Chemerinsky does ultimately succeed, it is not going to be for a very very very long time.

As for the elitist criticisms levelled against you, I only have anecdotal evidence to back this up (which I cannot share), but I firmly believe that professors' views about the *general* quality of their students are skewed much much higher above the reality, because their impressions are highly susceptible to factors, such as self-selection, that make the memories of excellent students stand out much more than that of the mediocre and terrible.

I would invite any law professor who has a small section or seminar class (where they were able to know the individual students' abilities fairly well) at a school outside the top-25/30 to try the following experiment. Think of a theoretical argument that's somewhat subtle and nuanced. Take a guess at the percentage of your students who would actually grasp the subtleties and nuances and truly grapple with the argument. Then take out your class roster, and categorize each student into a "yes, would definitely get it," a "no, definitely would not," and a "maybe" category. See how many you'd put in each category after having specifically and consciously considered each one. The results may surprise you. Perhaps Prof. Leiter will continue this study in some sort of list one day. (If so, I want credit in the star footnote).

Tam said...

Addendum: the point of the thought experiment, I should explicitly say, is to compare the initial guess (which correlates to "general impression") to the final count after having considered the class one student at a time (which, very loosely, obviously, correlates to "reality."). My hypothesis is that the general impression number will be far more favorable to the students than the final count.

Scott said...

My hypothesis has been for many years that the top 5% at any law school would likely perform well at ANY law school (i.e., the top 5% at Rutgers would do well at Harvard). I believe these top students are generally highly motivated, and since performance is built on ability AND motivation (among other things), these folks will go a long way on motivation notwithstanding the innate level of their ability, which may or may not be high. But I would be willing to bet that the 50 percentile student at Harvard would do better at Rutgers than the 50 percentile student at Rutgers would do at Harvard. I agree with what I think Professor Dorf is saying: that the law school admissions process (relying primarily on grades and LSATs) GENERALLY sorts students into different levels of schools based on the inherent abilities they have demonstrated through college. Therefore, the student body at Harvard (as a whole) is inherently more talented than the student body a lower ranked school. I don't think that point of view is elitist - it's just the way it is.

Michael C. Dorf said...

Ah, finally some rationality in the comments!

ChrislPettit said...

Just to raise an important substantive issue...what about those students who get into the higher ranked schools and instead choose to attend local state universities for other reasons? In my case, I chose to attend U of Florida law school instead of Columbia, Michigan, Boalt, and a couple of others. My reasoning was that, since I was going to end up $150k in debt if I went to the other schools, and wanted to go into international law, particularly focused on human rights, I might as well find a high quality mentor (Winston Nagan at UF) and spend the savings traveling the world and actually experiencing other legal systems. In the end, I have an LLM, study abroad experience at several prestigious universities, and 2 years in on a PhD from Queen Mary, London (where the money finally ran out...but that is another story and a problem with being a white American male in the international legal community at the moment), but just passed the bar and can find only adjunct teaching positions regardless of my education and experience because I chose to enhance my legal education instead of enrolling at one of the "prestigious" universities. In addition, even when looking at jobs at firms, it seems as though all they care about (most of the time) is whether you have your JD from a certain school and whether you passed the bar. By the way, I would like to interject here that I many lawyers in the top 25% that are much brighter legal minds than those in the top 5% due to their resistance to simply regurgitating the positions or lectures of a certain law professor. Maybe that is a byproduct of the faculties at some law schools, including UF, but I am acquainted with faculty at some of the "prestigious" law schools who fit the same mold, so I am not sure that this phenomenon is limited to "mediocre" schools.

None of this supports the accusations of Prof. Dorf as an "elitist snob" in any way shape or form...maybe the good professor is simply pointing out the rather screwed up reality of the situation, or some of the problems that need to be addressed. I would love for those of us who have busted our rear ends at "mediocre" law schools under professors who are much more brilliant than many of those at "elite" law schools (god help me if I ever have to consider Michael Reisman, Dershowitz, John Yoo, or countless others at "elite" schools quality legal scholars) recognized for our brilliance and hard work regardless of where we went to school or that we chose to publish internationally or in the form of government reports or NGO papers instead of in traditional legal sources such as law reviews. I guess what I am saying is that the elitist snobbery definitely persists in the "prestigious" law schools and in larger law firms, but that I do not think that Prof. Dorf suffers from such a malady.
Maybe Chemerinsky feels that he can have the same effect on students at UC Irvine that Prof. Nagan has at UF...they could both lecture at much more prestigious schools, but instead chose to be at lesser schools in the hopes of building a legacy and offering their brilliance to students who, in many cases, got into prestigious schools but chose other paths. I wish Chemerinsky luck and would be proud to be a member of that faculty...as I am sure Prof. Dorf would if he was offered such a post (not saying that he would take it). Unfortunately, there are still those hoops and artificial walls that are constructed by the true "elitist snobs" that tend to skew things...as in every phase of life. My thought is that we recognize and continue to fight these artificial obstacles while recognizing the reality of the system in which we exist...maybe Chemerinsky is doing his best to do that.

egarber said...

I’m not a laywer – I’m just a caveman. But I can make a quick point about selectivity in elementary / middle / high schools. Though not quite applicable here, I'll throw it out there anyway.

My wife is a public school teacher. She often gets annoyed with folks who simply recite familiar rhetoric – i.e., private schools are always better than public ones.

Well, to the extent some private schools “perform better” (there are public schools that actually “perform better”), it can largely be traced to the fact that they are way more selective about who can enroll – both via the power to literally turn kids down and the natural filtering that prices many people out. In fact, public schools can’t be selective at all, since they must serve all students (as it should be).

Private school teachers aren’t always certified (as all public school teachers are). When my wife played around with the idea of teaching in a private school, the administrator there was very eager to add a certified teacher to the ranks. Further, private schools typically don’t need “special needs” certification on site, given the selectively I mentioned earlier.

I guess the point is that it doesn’t come across to me as anything but pragmatic when somebody equates increasing selectivity with stronger average outcomes. This can apply even when the faculty is more qualified in a less selective environment.

Mortimer Brezny said...

My hypothesis has been for many years that the top 5% at any law school would likely perform well at ANY law school (i.e., the top 5% at Rutgers would do well at Harvard). I believe these top students are generally highly motivated, and since performance is built on ability AND motivation (among other things), these folks will go a long way on motivation notwithstanding the innate level of their ability, which may or may not be high. But I would be willing to bet that the 50 percentile student at Harvard would do better at Rutgers than the 50 percentile student at Rutgers would do at Harvard. I agree with what I think Professor Dorf is saying: that the law school admissions process (relying primarily on grades and LSATs) GENERALLY sorts students into different levels of schools based on the inherent abilities they have demonstrated through college. Therefore, the student body at Harvard (as a whole) is inherently more talented than the student body a lower ranked school. I don't think that point of view is elitist - it's just the way it is.

This may be a cogent hypothesis, but I haven't seen any proof in Prof. Dorf's "analysis" that it is true. I went to a selective law school and many of the admittees there had attended selective schools for undergrad or for another professional degree. But it was not uncommon, controlling for age, for the dude or gal who went to a non-elite school for undergrad to absolutely crush the Ivy leagers in clinical or practical classes, not to mention moot court, trial ad, mock negotiation, as well as in terms of grades. So I'm not sure about 50% of Harvardites going to Rutgers and outright conquering the place. They might be academically eaten alive. And the 50% of Rutgers students who hypothetically can't perform at Harvard might have made for average students at HLS who simply weren't let in because they had a bad day on the LSAT or were party-kids in college, or both. But that doesn't mean the average HLS student is a better lawyer. It just means the average HLS student went to Harvard Law School.

Professor Dorf really needs to retake a logic class and focus on the part about tautologies. Actually, part of the reason elite law schools get such a bad name -- for not teaching a damn thing -- is the professors too often make their academic reputation with the clever deploy of fallacies. At a certain point they start believing the rational and psychologically effective deploy of a fallacy is the same as the truth.

Mortimer Brezny said...

Oh, and I don't really think Prof Dorf has a sound response to Professor Kerr's comments, which is perhaps why he hasn't responded to them.

Paul said...

"Actually, part of the reason elite law schools get such a bad name -- for not teaching a damn thing"

I don't think "elite" law schools have such a reputation at all. You seem to have the "clinic" mentality that suggests that "practical" experience and "black letter" law is real teaching. Law students trained in the fashion of a trade school might make better first year associates. They also might not take bar-review courses. But in the long run they will not make better attorneys. The essential skill taught in law school is rational, critical thinking. The subject matters used to teach that skill are largely irrelevant (though because of the complexity of certain areas - Federal Courts and Antitrust pop to mind - those areas might more readily challenge that skill in students). An attorney with excellence in that skill will pick up - often on a case by case basis - the needed specifics fairly readily once (s)he starts practicing.

That said, I think part of this discussion is simply that the people on both sides of this debate are not speaking from a common ground. The vast majority of legal work that goes on in this country just does not require much brain-power. Core competency in the relevant subject matter combined with attention to detail, passable intelligence and a good work ethic is all that is required. In most cases, exceptional critical thinking is just not much of a value add. That is, most "big firm" litigation partners could quit what they are doing and open a practice, for example, drafting contracts for "mom and pop" service companies. With some small work to familiarize themselves with the field, they would become as good as - but very unlikely would they become better than - the typical practitioner that has spent his or her life doing that work. The reverse is fairly clearly not true.

Michael C. Dorf said...

This will be my last intervention on the rather unimportant question of whether my hunch is right that it will be very difficult even for a superbly qualified academic to create a top-flight law school from scratch. Time will tell, and as I've said repeatedly, I don't have any investment in the right answer. I was originally expressing SKEPTICISM about a proposition. I would be happy to have that skepticism proved wrong by actual data.

Mortimer Brezny claims that I didn't reply to Orin Kerr because I could think of no reply. In fact, I haven't been replying to many of the thoughtful comments posted here and elsewhere because I'm teaching two demanding classes per day this semester and feel some obligation to devote most of my workday to preparing to do so.

But Orin does raise an interesting point, which I'll address before letting go of this topic for good (or ill). Suppose that Stanford comes up with some fancy new way to "globalize" its curriculum. Such an innovation, Orin might say, is unlikely to spread to non-elite institutions unless it will affect the variables that in turn boost US News rankings. I agree, but my point was not that every innovation at elite schools moves to less elite schools. My claim was that profound innovations that spread are much more likely to come from schools that are recognized as excellent. (In an earlier comment, I gave the examples of influential schools of legal thought, such as legal realism and law & economics.)

I also agree with the converse point that Orin appears to make: an innovation in the US News-focused interest of a less elite school can also spread without ever being adopted by an elite school. But such innovations are more likely to be gimmicks than the sort of bold changes that someone of Chemerinsky's stature would want to devote himself to. An example might be some new way to game the LSATs by charging lower tuition for the top 25% of the class, or whatever. This would create a stronger student body by US News standards but would hardly be an innovation in legal education.

Indeed, as many readers (but not all!) seem to have missed, my main point in these posts was to lament the degree to which US News and the status-consciousness of the law school world (including prospective students) inhibit innovations at all law schools. For example, suppose the dean of a law school conducts an empirical study that shows that we have all been selecting students in the wrong way, and that by combining new selection tools and a radically new pedagogical method, his school can produce measurably better professional outcomes for its graduates. (Measured by outcomes of litigation, job satisfaction, client satisfaction, whatever.) Suppose further that the study supports eliminating the LSAT as an admission tool. The school’s US News ranking will plummet, which in turn will make the school substantially less attractive even to many of the students the school wants to attract using its new criteria. Thus, as I’ve been endeavoring to say all along (evidently without sufficient clarity), much genuine innovation will be stifled.

To be sure, I have been assuming that graduates of elite law schools on average make better lawyers than graduates of non-elite law schools, and that assumes that current admissions methods are better than chance. I’m comfortable with that assumption, even though I have no great faith in the LSAT as a screening device. The reason I’m comfortable with the assumption is that just about all US law schools use the same admissions criteria. If one selects for grades and LSAT scores, then better grades and LSAT scores will, on average, yield better students (unless these variables are completely random). If some school selected using radically different criteria, then it could well get better students who had on average worse grades and LSAT scores, except that as I’ve just noted, the school would take a hit even with the students it wanted because of the tyranny of US News.

As far as I'm concerned, the only really contestable point I've made in these posts and comments is that excellent students become better lawyers than average students, even if the average students get a better education. That could be wrong, and certainly there would be some point at which it would be obviously wrong: e.g., a student with excellent qualifications who learned literally no law. (When I said Yale teaches no law I did not mean that literally.) Anyway, this was a hunch based on personal observation of former students and my contacts with lawyers in the fairly frequent pro bono and paid consulting work I do. If I'm wrong, I'm happy to be corrected by empirical data. So far, most of the "corrections" have amounted to other people's hunches (which is fair enough) and people calling me names (which I classify under the "sticks and stones" principle).

And now I’ll give the last word to whoever wants to say what an elitist, arrogant, ivory tower jackass I am. I may be all of those things, but I’m not a censor.

Mortimer Brezny said...

The essential skill taught in law school is rational, critical thinking.

Then you disagree with Professor Dorf. His argument is that elite law schools teach virtually no law or critical thinking; they simply select the students who already possess the critical thinking skills that are marketed as a part of the law school's brand.

I find it odd that you must transform my argument into a strawman in order to respond to it. But I haven't said anything suggesting law schools should be trade schools. Nor did I say a gosh darned thing about bar review courses. My point was that as a matter of empirical reality, I have observed at a selective law school that law students with "worse" pre-law school credentials regularly crush students with "better" pre-law school credentials, in each and every category of performance -- academic or practical -- that one would use to assess rational, critical thinking.

Mortimer Brezny said...

Mortimer Brezny claims that I didn't reply to Orin Kerr because I could think of no reply.

No, I was originally expressing SKEPTICISM about a proposition.

Mortimer Brezny said...

(When I said Yale teaches no law I did not mean that literally.)

Ah. Glad we cleared that up.

Sally said...

It's your blog, you're certainly free to abandon the debate or discussion, whatever this is supposed to be.

I, however, am not operating from hunches. Although I haven't conducted a wide ranging survey on this issue, I base my comments on real life observations of the results obtained by lawyers from Class A schools vs. lawyers who attended Class B schools. The very best lawyer I've ever known graduated from the University of South Carolina and routines whips the butts of his supposed betters from UVA or William & Mary. And my favorite "war story" to tell other lawyers is how a U of Miami law grad with the weaker case kicked the butt of a Harvard law grad, a partner in a prestigious law firm. Why? Well, no one can say for sure but the jury's comments afterward seemed to indicate that the Miami grad just seemed more believable. He was a better advocate for his client even though neither the facts nor the law really favored him.

I could go on but I won't. You are more focused on who makes the better student in any event, not who makes the better lawyer. And since no one actually ever pays for a great student, your premise has little application beyond the walls of ivory tower academia.

Out here where it counts, clients will continue to select attorneys who can make things happen for them, regardless of whether or not that person went to the best law school.

Sally said...

It's your blog, you're certainly free to abandon the debate or discussion, whatever this is supposed to be.

I, however, am not operating from hunches. Although I haven't conducted a wide ranging survey on this issue, I base my comments on real life observations of the results obtained by lawyers from Class A schools vs. lawyers who attended Class B schools. The very best lawyer I've ever known graduated from the University of South Carolina and routinely whips the butts of his supposed betters from UVA or William & Mary. And my favorite "war story" to tell other lawyers is how a U of Miami law grad with the weaker case kicked the butt of a Harvard law grad, a partner in a prestigious law firm. Why? Well, no one can say for sure but the jury's comments afterward seemed to indicate that the Miami grad just seemed more believable. He was a better advocate for his client even though neither the facts nor the law really favored him.

I could go on but I won't. You are more focused on who makes the better student in any event, not who makes the better lawyer. And since no one actually ever pays for a great student, your premise has little application beyond the walls of ivory tower academia.

Out here where it counts, clients will continue to select attorneys who can make things happen for them, regardless of whether or not that person went to the best law school.

There's an innovation to consider: teach students that results matter. Especially to the person or company that's paying for it.

Sally said...

Sorry for the double post. I didn't think what I wrote was really THAT wonderful or anything.

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