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Monday, July 02, 2012

Henderson and Zahorsky on the "Law School Pedigree Problem"

For all the usual assumptions about magazines like the ABA Journal and the National Jurist being puff-piece journals (certainly the latter likes running ads about LL.M. programs and summer-abroad programs), both of them have published a number of good pieces in the last year or so on problems with law schools, legal education, and the legal economy. Here's another good piece: In this month's ABA Journal, Bill Henderson and Rachel Zahorsky have published a piece called "The Pedigree Problem: Are Law School Ties Choking the Profession?" The subject itself has been written about before and is hardly novel, but Henderson and Zahorsky do cite some interesting recent sources and do a nice job of collecting a number of observations and issues surrounding this topic. Here are some highlight points, as far as I am concerned:

  • Evidence (anectodal, but certainly tracking my experience back in the day) of large employers, who are making expensive long-term hiring decisions, nevertheless ranking pedigree over actual quality and experience. 
  • The point that large firms "hiring Ivy Leaguers without a passion for corporate law or BigLaw becomes an economic tax." Or, to put it differently, even if large employers were right that the middle of the class at School 1 is generally better than the top of the class at School 35, my experience has been that a student at the top of the class at School 35 will often, for a variety of reasons including sheer gratitude and appreciation for getting a highly paid job as opposed to taking such jobs for granted, will often show a higher degree of grit, determination, entrepreneurialism, and long-term commitment to the firm than a graduate who was in the middle of the class at School 1.
  • The reproduction of that hierarchy on law school faculties and the question whether it will retard individual schools' capacity for innovation and adaptation. As law professor Tracey George observes in the piece: "The rub for some is that if we continue to hire professors who look exactly like existing ones, we aren’t introducing innovative practices and methodologies. . . . The question is whether law schools can innovate within that group or need to diversify faculty portfolios; and if they do, will that diversity translate to students in the classroom?"
  • The overuse of GPA and LSAT scores as predictive measures in hiring, and the under-consideration of what individual schools actually do by way of training their students.

Let me add three points.

It makes sense to me to treat the legal profession as a market. But anyone who has experienced hiring patterns at large law firms (which, as we should all know by now, are only one part of the market) can only come away a little dispirited. I remember being at a large firm at which one or more hiring lawyers explicitly said they refused even to look at resumes from students below the top ten. This was some time ago during a relative market boom, and I don't know whether the same thing is true today, or whether the total number of people hired has gone down while the evaluative proxies have stayed the same. It's not that those proxies make no sense, mind you; it's that they don't, in my view, make enough sense to justify the lockstep behavior. Perhaps it's because I've actually taught at lower-ranked schools, whereas many of these hiring lawyers went straight from Elite School to Elite Firm, but in my view the top students at "lower-ranked" schools are often not only as good as the top students at top schools, but, just as important, are far hungrier. Pedigree-oriented hiring, at least if pursued in lockstep, is not so much about sound market decisions as it is about pure risk aversion--in a profession that increasingly requires, and historically has often been altered and/or improved by, entrepreneurial and imperfectly pedigreed types.  

Second, I think Henderson and Zahorsky are right to point out, quoting a dean of a lower-ranked school, that "There is a lot of innovation in legal education today . . . . Unfortunately, legal employers don’t reward law schools for the quality of their educational innovation." As long as both employers and schools themselves are focused on the US News measures and not more qualitative matters (including hiring outcomes, debt levels, etc.!), the incentive to engage in those sometimes costly innovations will be lessened. We should, on the one hand, rid ourselves of the assumption that law schools are all static and unchanging; there have been a lot of innovations on the ground at individual schools. But we should worry about whether schools have adequate incentives to engage in those innovations if they won't be measured.

Finally, I am fascinated by the homogenization problem that Henderson and Zahorsky discuss with respect to law schools. Brian Tamanaha also discusses this in his new book, and it is a focus of my forthcoming review of that book. One thing that this, as well as recent experience, suggests to me is that it may be both mistaken and harmful to think of the legal market, whether professional or academic, as a national market. Law schools, I think, would do much better service to their constituents to think of themselves as being part of a local or regional market, and asking what skill set ought to be imparted given the needs and demands of that particular market. As it is, and notwithstanding local innovations, the curriculum of many schools below the top ten or twenty still seems oriented toward training the top one percent of students at schools for the (increasingly unlikely) bigfirm jobs they might get, rather than orienting the curriculum to reflect the jobs most of them will actually be doing. Part of this, I suspect, has to do both with the fact that the elite law school graduates who teach at these schools all had that curriculum, and with the relative ignorance of law school faculties, who come from all over but were mostly funnelled through the same elite experience, about the local legal profession in their school's region. The keyword for law schools and, God willing, US News, should not be to think nationally or globally, but regionally and locally.     

Posted by Paul Horwitz on July 2, 2012 at 10:03 AM in Paul Horwitz | Permalink

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I agree that innovation is a major issue (and problem) for law schools. In some ways, entrenched higher-ranked institutions may face more than the lack of an incentive to innovate; they may also struggle against an actual incentive to stay with the established methods insofar as changing risks the loss of their status in the eyes of Big Law. With change and innovation comes uncertainty in the eyes of legal employers who might well think twice about a new lawyer who had a law school experience so different than the established partners at the firm. To the extent that a top ranked law school bears that position because of its long history of educating students in a given "tried-and-true" way - perhaps for literally hundreds of years - it risks shooting itself and its graduates in the proverbial foot if it explores new ways of teaching and learning. The reputation it has built over the years may be questioned along with its funding. Perhaps understandably, it may be hard to convince those in power at those law schools to go along with a novel approach to the curriculum.

On the other hand, it can be argued that top ranked law schools have more of a responsibility and platform to innovate. With the larger base of funding, the raw resources to build a new center, create a set of legal clinics that draw together interdisciplinary approaches, explore pedagogical methods to meet the challenges of managing the large lecture classes, etc, the top crop can literally afford to try what others may want to - but who simply lack the money to foot the bill and bear the risk should a venture fail. Similarly, one might say that a school with a consistently higher ranking has built up the esteem in the eyes of all legal employers that effectively cushions them against a backlash for out-of-the-box thinking. At least for a time, their experiments may be tolerated where others' are not simply because of the clout they hold. If successful, smaller and/or not-top ranked law schools can better justify their own innovations that address the needs of their particular students.

A lot of generalization is seemingly inevitable. Some top and not-top ranked law schools have been pushing legal education beyond its comfort zone and tapping into the needs of its students and graduates in a changing environment. Some top and not-top ranked law schools seem stuck in a rut, fearing or lacking an incentive to offer a different path. But it may be helpful to look at schools that have successfully raised their profile in a positive way through new approaches to law teaching. What made it work for them, how did they sell it to legal employers and funders/donors? (The sell seems logically an enormous part of the question.) Are there patterns to be gleaned? The role of regionalization may fit in here. There are clearly regional law schools that place graduates at well-respected law firms and other in legal positions in a given city or state even if they are not in the top 35 ranked schools; some may have a better rapport with employers than the top-crop that bleeds over into their graduates. It might be that those schools are able to innovate insofar as they are seen as their own "top" among employers in that given area. Perhaps this work is already out there; I'd be interested to read it.

Posted by: Rita Trivedi | Jul 2, 2012 12:17:06 PM

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