Paul L. Caron

Thursday, November 15, 2018

The Elite Teaching The Elite: Who Gets Hired By The Top Law Schools?

Eric Segall (Georgia State) & Adam Feldman (USC), The Elite Teaching the Elite: Who Gets Hired by the Top Law Schools?:

Do you want to teach at a top 25 law school? If so, you had better excel at something you will encounter years before you will even consider applying to be a law professor. Something that has no relationship at all to the skills academics need. You better score extremely high on the Law School Admissions Test (LSAT) (or now at some schools the GRE). If you don’t score towards the very top, you will likely not be admitted to a top 10 ranked law school. And if you do not attend a top 10 ranked law school, no matter what you accomplish during the school you do attend (even a top 20 school) or afterwards, your chances of teaching at a top law school are virtually non-existent. The reality is that by far the most important credential one needs to teach at a top law school is to attend a top law school. The elite, teaching the elite, who will then teach more elites.

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“As a result of the increased if not always genuine or productive intellectuality of academic law – its love of theory – especially at elite law schools…, many faculty members – often the most illustrious – have little experience in the practice of law…. And given the common academic failing known as “what I don’t know is not knowledge,” these theoretical scholars may deride applicants for law school teaching positions who have a rich background of practical experience in the law….”

“The claim that judicial interpretation is a rigorous analytical process, comparable to syllogistic deduction, or at least to skilled translation of technical materials from a foreign language, and so really does generate demonstrably correct answers to even the most difficult-seeming questions that arise in litigation, is fatuous.” Richard Posner, Divergent Paths: The Academy and the Judiciary, pp. 10-1, 101

Once again "Data / Purpose / et al." - let's just call him, say, Mike - fails to understand the context or history of American law schools, which aspired to portray law as a pseudoscience in the same vein that their contemporary colleagues were positing phrenology and Social Darwinism. They were also an upper-class, old money monolith that was aghast that all of these icky immigrants from like Italy and Ireland could read law and become lawyers, and the modern law school was in no small way a, shall we say, wall to ensure that only the proper sort could become an attorney.

Other easily dispelled arguments:

- Legal employers increasingly want law grads who can actually practice law out of the gate, and are choosing to either not hire at all or hire experienced lawyers in lieu of new grads when they cannot find these practice-ready graduates. Which does not actually mean they were “spoonfed black letter law,” but means things like “they took a contracts course where they actually saw a contract, and maybe even mock drafted a few of them.” The proof in the pudding here is that there are thousands fewer FT/LT/license-required jobs for law grads now than in the darkest years of the Great Recession. Employers are voting with their feet; adroit law schools will dutifully follow them.
- “Law schools train students to think like a lawyer.” In other words: here are some texts (opinions, statutes, whatever). Read them closely and then use the material to create an argument or narrative. Boy that sounds a lot like the English and History papers I was assigned when I was 15. But you go ahead and tell yourself that “thinking like a lawyer” is a special and magical technique that isn’t mere critical reading and analysis in a fancy frock, and do try and ignore the snickering about it from every corner of the academy. Truly the neophyte lawyer-cum-law professor is a more magisterial thinker than the doctorate in astrophysics!

- I'm sure Jones Day or whoever had you running first chair in bet-the-company litigation after you had been there six or seven months. Sure they did. In fact they had already promised you an equity partnership but you were just so dedicated to the public interest that you forsook your legal glories to teach law at a mediocre law school off the New Jersey Turnpike.

A fourth-tier law school grad who has actually practiced law for six or eight years is ten times the lawyer most law profs can ever pretend to be. And even in the midst of your braggadocio, the rather loud subtext in your last two sentences implicitly admits that you don’t actually know how to write a will. So much for that critical thinking! Along those lines, if law school teaches students to think like lawyers, it must follow that graduates of those schools who successfully run solo law firms ARE THINKING LIKE ATTORNEYS AND CAN WORK THROUGH PROBLEMS. Hear that noise? It’s the internal logic of your post collapsing upon itself. Go read “Godel, Escher, Bach” and get back to us.

Posted by: Unemployed Northeastern | Nov 17, 2018 3:39:03 PM

Once again the same commenters fail to understand the purpose of law school. Law schools are not in the business of spoon feeding law students black letter law. Law schools train students to think like a lawyer. During the first year in particular, law professors train students to analyze legal issues and develop complex arguments that will successfully persuade judges. A lawyer with experience clerking for a Federal judge and handling complex litigation with a large law firm can carry out the tasks of a law professor. A solo with experience drafting wills or defending petty crimes does not have the skills to carry out the tasks of a law professor. Knowing how to write a will does not do a law graduate much good if they don’t know how to think through a problem.

Posted by: Purpose | Nov 17, 2018 12:49:52 PM


The irony in your comment is that first year classes at Harvard, like all law schools, teach material that is almost exclusively practiced by solos and small law firms. Large law firms are over 50% pure corporate, and litigation departments are focused on a few federal criminal statutes, securities law and IP.

Posted by: JM | Nov 17, 2018 6:03:55 AM

Problem's confirmation bias is showing again. I rather doubt the type of law professor (i.e. someone who spent one (1) year in Biglaw as a glorified scrivener) he is describing could conduct civil litigation or even draft a semi-complex will without a template and someone to hold their hand.

Posted by: Unemployed Northeastern | Nov 16, 2018 1:46:01 PM

Just additional evidence that the whole system is incestuously rigged to perpetuate a class of "elites" and "experts" who will be the gatekeepers to the golden paths. It happens in universities and law schools. It happens in government. It happens in finance and business. So much for the delusion of meritocracy and diversity, either intellectually or socio-economically.

Posted by: ruralcounsel | Nov 16, 2018 4:39:23 AM

Law schools want to hire the best legal talent as law professors. A graduate of a top 10 law school, with a Federal Clerkship and experience at a top law firm, knows a lot more about managing complex cases and making arguments to Judges, than a mediocre solo. If a school wants to produce top graduates, then the school needs to hire the best people to train those graduates.

Posted by: Problem? | Nov 15, 2018 3:21:57 PM

@Paul Horwitz,

Re: your last sentence - I think Occam's Razor explains a lot. Who was, by far, the most influential person in American legal education? Langdell. And what did Langdell believe? "He had concluded that, far from helping may law faculty better teachers and scholars, years in law practice detracted from that aspiration by implicitly encouraging lawyers to favor political and financial expediency over intrinsic merit… Ideally, he believed, Harvard should staff its faculty from the ranks of its own law students, those with the highest grades. Such men had demonstrated their intellectual and analytical talent, and had not yet been corrupted by law practice." G. Edward White, Law in American History Vol. II, p. 319

I would submit that we still live with that legacy. Incidentally the cite goes on for twenty subsequent pages on the contemporary back and forth of whether this was a good hiring ethos for law schools.

Posted by: Unemployed Northeastern | Nov 15, 2018 1:21:09 PM

And best yet about this Iv-ied elite is this: the Supreme Court is entering the Era of Applied Originalism, and virtually no-one at the Ivies truly and sincerely professes it. So this "elite" attends institutions guaranteed to make them hostilely misunderstand, on many issues, the ruling jurisprudential trend of their own nation.

Posted by: Carl Eric Scott | Nov 15, 2018 11:08:54 AM

"Something that has no relationship at all to the skills academics need." I thought academics did need to be smart.

Posted by: Eric Rasmusen | Nov 15, 2018 8:26:39 AM

No? Or, rather: 1) Yes, absolutely, if that is the stark choice presented, but it's not quite so either/or. I don't know Feldman, but Segall does write substantive scholarship. Indeed, most of the people I know who have done empirical work on the legal academy have also written ample substantive scholarship. 2) Surely there is room in the rather capacious universe of legal scholarship for *some* sociological or empirical work on the legal academy, which after all is an institution with institutional virtues and vices that can't be improved if they're not understood, and the background and natures of whose members may influence the kinds of substantive work they do or don't do and the assumptions that go into that work. If, to take an example dear to many hearts on this blog, there is a concern that law professors haven't practiced enough, it would be helpful to move beyond that generalization to get good data on the question and understand better how and why it happens.

Posted by: Paul Horwitz | Nov 15, 2018 7:34:11 AM

The award-winning work of Kellogg professor Lauren Rivera is pretty instructive here, particularly her book "Pedigree."

Posted by: Unemployed Northeastern | Nov 15, 2018 7:31:42 AM

Wouldn't it be better for scholars to do scholarship than analyze other people's scholarship?

Posted by: Mike Livingston | Nov 15, 2018 4:48:22 AM