In my last post, I had a throw away line on Columbia law professor Michael Dorf. For those following the link I provided, the clear implication was that Dorf's comments on the Chereminsky affair -- e.g., "[e]ven solid but middling-ranked law schools can have at best a marginal impact on the course of legal education" -- was evidence of Dorf's overconfidence in his own judgment.
Dorf picked up on the Moneyball theme in the comments section, claiming that he in no way endorsed the data-blind approaches of traditional baseball scouts. Professor Dorf then extended the baseball analogy to buttress his underlying point:
“[A] discerning reader will see [from Dorf's original post and subsequent qualifying comments] that I was making a quite different point: I was guessing [to some of us, it looked like concluding] that elite law schools could do a middling job at actually educating students and still not suffer serious reputational hits, because their students' talents cover up for this. (This is why the Yankees have been a good team even though they didn't follow the path of Billy Bean: their huge war chest covered up their errors.) I don't deny that eventually good innovations win out but I say that it will likely require a market leader to make the process work. Thus, the Boston Red Sox have been more successful using Bean's strategy than the A's were, because the Sox have done it with more money.
Sure, money / starting position matters. But the fact remains that virtually all major league clubs now employ the techniques originally created by a small market ("middling-ranked") team. Far from having a "marginal impact", these innovations revolutionized baseball.
Starting with a clean slate, could Chemerinsky do the same at UC Irvine? I suspect a large number of deans would love to play his hand: (1) the UC brand and faculty benefits, (2) a public tuition subsidy for students, (3) a spectacular geographic location adjacent to a vibrant legal market, (4) the ability to select an entire faculty based on a unique institutional vision, and (5) seed money from private donors.
In our empirical work on law school rankings (here and here), Andy Morriss and I found that (a) proximity to large legal markets and (b) low cost (e.g., public school or low avg debt) are both drivers of higher LSAT scores over time. UC Irvine has both of these advantages. Further, if UC Irvine can document that its innovative teaching adds more value in three years (a LONG time) than its tradition-bound competitors, then employers (and eventually students) will move the market. How elite is a law school when students and employers find a better value downstream?
At present, we do not know the potential benefits of innovative teaching methods on human capital--e.g., can the gains be permanent and persistent, trumping raw ability (as measured by LSAT scores, far from perfect) over time? This is an important empirical question. I know that some legal educators assume the answer is no. Because the stakes are so high, I would prefer to see the data.
If law schools -- during the course of three years -- can add substantial and persistent value beyond raw aptitude, the innovators (and I hope Chemerinsky is one of them) could get a huge competitive advantage, at least until the elite schools are pressured by market forces to learn and apply those same innovations. And this would be far from a "marginal impact".