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02 September 2008


timothy moriarty

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"Of course, each of us is free to determine our own merit criteria."

I have never felt free with regard to merit criteria. I can form my own value system for sure, but to function in the really real world I have to accumulate and display majority merit proxies. More people listen to me if I wear a tie, if I tell them I am a lawyer, if I signal to them I went to a good school.

To me, the US News rankings function like credit scores. Prior to the consumer lending industry having gone reputational, lending transactions had high costs as each person's collateral had to be individually evaluated and secured. Today, a mysteriously and privately derived number serves as a proxy for all of that. Similarly, before rankings gained so much prominence, more energy was necessarily expended evaluating the character and intelligence of candidates for office, jobs, partnerships, etc. (or else genetic nepotism was used.) Now, piles of clerkship and faculty applications are first sorted by JD school. Firms (Quinn) advertise to clients with their Harvard/Yale/Stanford attorney count.

The reason all of this attention on rankings is so ugly is that it directly influences the distribution of opportunities in a society that maintains a mythology of equal opportunity. Reputation based ranking systems perpetuate the initial distribution of reputation. They reinforce any negative reputational stereotypes that exist. They create glass echo chambers, which reflect back the on the enclosed elites their desire to view their reputation as a validation of their intellectual superiority.

No one can stand to admit that they were born into privilege and tracked into prominence. They end up endorsing the system because, even if they never set foot in New Haven, there is always someone lower than them in the rankings. The higher one ranks, the less incentive to reform, the lower one ranks, the less power to reform. Caste systems can self-perpetuate for thousands of years.

In my view admission to Yale determines the voice and the content of legal scholarship and legal practice more than what is actually taught there. Of course most academics who read this will react violently to that statement. I am an enthusiastic supporter of Duncan Kennedy's old lottery idea for student admissions and faculty assignments, but I know my children's children will still be wondering why they can't get into Yale.

Bill Henderson

Brian, I remember (and just reread) your post on Legal Realism and the so-called New Legal Realism. It is a remarkably concise and persuasive analysis.

A couple of points of clarification:

1) I wrote "tilt" toward empirical work, not exclusive embrace. This is based on the fact that proportionately fewer law school graduates will actually litigate cases in court. Mediation and arbitration are increasingly supplanting court room practice (though how this plays out has interesting hierarchical dynamics that are correlated with the ranking of schools). How this process works and its distributional consequences are not well known. Law schools are best situated to do this work. And it is largely empirical.

2) Related to the first point, based on breakthroughs in the cognitive sciences, I see the emergence of a whole new field of research on how business/transactional lawyers make decisions and add value (indeed, I am doing research in this area now). Court decisions are only tangentially part of this analysis. This vein of research has enormous pedagogical value but requires extensive fieldwork. In addition, better understanding of how lawyers accumulate general and specific human capital can, if applied to legal education, produce large institutional benefits.

Much of the Legal Realism agenda for changing legal education (see e.g. works by Llewellyn and Jerome Frank were never seriously acted upon. Today's legal education is largely a merger of Harvard's Langdellian method and Yale's Legal Realist insights. I see a large institutional payoff for the law school that upends this system--but our present circumstances reflect a collective action problem that is very difficult to defeat. But it is still worth trying. bh.

Brian Leiter

As I've written before, this tribute to the social sciences has little to do with the actual practice of the Legal Realists or what they meant by "empirical" work; the earlier discussion was here:


Your vision for what legal academics might do is a fine one, but why in the world would you claim it's the only thing they ought to do? Much 'empirical' work suffers from lack of analytical rigor, one of the intellectual virtues one might have associated with law. Indeed, the core currency of law is reasons and arguments, which might raise a question about whether mere empirics has any place in a law school. But I wouldn't draw that conclusion, since I think it's rather healthy to let 'a thousand flowers bloom.'

William Henderson

Brian, yes, intellectual rigor matters. But my own view is very much akin to the original Legal Realist vision of using the social sciences to understand how the legal process and legal institutions actually operate. To my mind, this should tilt scholarship in favor of empiricism, both quantitative and qualitative. Law professors and practicing lawyers should be engaged in an ongoing dialog. Under this system, alumni relations actually becomes part of the service and research mission, which in turn improves the quality of teaching.

Moreover, I think the trade/professional school versus the university/graduate debate is misleading and counterproductive. A law school's competitive strength cannot be breaking new ground in the cognate disciplines. Instead, our focus should be the application of ideas to real world problems. To my mine, law professors need to be engaged more in the real world than their university counterparts--economists, sociologists, political science, and psychologists. Law is the one place where intellectualism and idealism can actually overlap.

I have been thinking about this issue for several years. I remember reading Kalman's "Legal Realism at Yale" and thinking to myself, "Here are a few good ideas followed by decades of faculty politics, infighting, and jealousy." Empiricism was killed at its inception because results cut against the political grain. The "collective enterprise" ethos is the only thing that will avoid a similar outcome. Good ideas are never enough.


Doesn't the "best" law school have some intellectual virtues? Or is that included within your reference to "the collective enterprise"?


The small school issue works both ways. The rep scores are a survey, and with fewer grads you'd expect survey scores to be lower (all other things being equal).

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