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.