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Monday, September 25, 2006

Moneylaw: Second of a Series

Having started Jurisdynamics, Professor Jim Chen is engaged in a little empire-building, having started up various associated enterprises.  I come today to praise one of them in particular: Moneylaw, a blog about "the art of winning an unfair academic game," according to its subtitle/motto.  Its contributors include Jim Chen, Tom Bell, Al Brophy, Paul Caron, and other inestimable writers.  The posts so far have been terrific, and if you like Prawfsblawg, it's well worth adding to your list of frequently visited cites.

Professor Chen has written a number of interesting posts lately, some of which have occasioned commentary elsewhere.  I think they are consistent with each other, but I would like to see him give some more thought to some of the ways in which they bump up against each other.  He has written:

1: The "legal professoriate remains enthralled by academic rank."  This is a mistake.  We ought to be purely meritocratic in thinking about academic prestige.  The rule ought to be: Credentials don't matter. Performance does.

2: Chapman Law School, which famously boasted of its SSRN numbers when those numbers were based in substantial part on old papers, has been subjected to "ritual abuse."  One observer (actually, Dan, here on Prawfsblawg) "went so far as to praise these acts of public flagellation as an unsung virtue of blogging."  In fact, Chapman was only trying to "master the art of winning an unfair academic game."

3: "Sextonism" has become a label of opprobrium among legal academics (especially Brian Leiter).  In fact, Sextonism should be viewed as the adroit (if not altogether credible) promotion of an educational institution.

Now, Chen writes with a wry style, so it's difficult for dullards like me to discern when he's being above-board and when he's writing with tongue in cheek.  He is certainly upset that the Chapman affair became an occasion for elite schools to snobbishly tut-tut Chapman for the effrontery of ambition, thus nicely guarding their turf at the same time; and I think he believes Sextonism is less of an ill than its critics suggest, although the "not altogether credible" language suggests that he recognizes that it is a far from unmitigated good.

My own views follow after the jump.

My own view is that Chen is absolutely right on (1).  He is right on (2) to the extent that his objection is specifically about the ways in which the criticism of Chapman was a mere occasion for the reproduction of hierarchy.  Similarly, on (3), he is right if his point is that a little crassness in promoting one's institution is not a terrible thing, particularly in a system in which credentials often are treated as counting more than performance. 

I might even suggest a nice Hebraic angle to my take on (2) and (3), to commemmorate the Jewish New Year.  The American legal profession once shuddered at the brusque entry of Jews and other members of immigrant cultures into its especially hallowed halls -- elite law schools, white-shoe firms, and so on.  But the shift in legal culture that was caused, or at least accelerated, by this phenomenon of new entrants to the profession circa mid-century, which in many respects was "an offense to the fastidious," as Posner puts it in his discussion of Mary Ann Glendon's book on the legal profession, was largely a positive thing.  It laid bare the extent to which law is a profession and a business; it forced the law schools and white-shoe firms to adapt or die; and it showed that sometimes the gatekeepers of the profession were not genteel preservers of high standards and tradition, but mere cartelists. 

We might say the same thing about some of the developments Chen writes about, although the partial insulation of law schools from market forces makes the picture somewhat different.  A new crop of professors and law schools insist that their work is strong, their ideas worth hearing, and their faculties worthy of respect.  Knowing that the gatekeepers will often, although not always, remain insensible of these developments, they work around the system, finding new ways of getting their message out (SSRN, blogs, and various acts of Sextonism), just as my father and countless other improperly pedigreed lawyers started up new firms, found new business models, and otherwise challenged the established hierarchy.  If the work itself is no good, or the "upstart" faculty less strong than its boasts suggest, then that is one thing.  But if it is good, and some gatekeepers shudder at the vulgar way in which this new crop breaks down old intermediary models and challenges easy assumptions about the "best" schools, then to hell with those gatekeepers.

In short, I think there's much to be said for Chen's focus on performance rather than credentials, and there are excellent reasons to scrutinize the gatekeeping function performed by a few law schools and legal academics, especially if those gatekeepers, despite any claims to the contrary, ultimately focus more on credentials than performance, and especially if those gatekeepers are aghast at the chutzpah and vulgarity of the arrivistes; vulgar arrivistes can be a good thing! 

But given that, I think Chen should think carefully about the relationship between points (1), and points (2) and (3).  My issue with Chapman clearly is not outrage at a lower-tier school challenging the primacy of an upper-tier school, and I agree with Chen that some of the reaction to Chapman's move was merely snobbism.  But in the absence of an old-school gatekeeping function, there is still some merit to finding a variety of ways to monitor and challenge the truth of the claims to quality made by various claimants.  And here, whether or not they were ultimately right, I think the blogs performed a signal service in raising doubts about the nature of Chapman's claims.  That's what our own Dan Markel was saying in the post that Chen refers to, and I think Dan was right.

Similarly, Chen speaks up for Sextonism, and as I said earlier, if Sextonism is a way of finding new ways to challenge the old gatekeepers and draw attention to excellent performance by people or schools that would otherwise go unrecognized, then who cares if it's a little crass.  But he should recognize that one of the goals of Sextonism -- at least as practiced by Sexton at NYU -- is not to challenge the old gatekeepers, but to be recognized in the same breath as them.  Of course, Sexton hired great people and built a great institution.  But my sense is that the ultimate goal here was not just to emphasize the performance of NYU as a scholarly institution, but to turn NYU into a credential, which then would be somewhat insulated from the performance demands that Chen thinks are the most important thing.  Of course we're great; we're NYU! 

So, in short, I think Chen is right to defend crass Sextonism against the usual criticism, but he should give careful thought to the content of various Sextonian claims, and distinguish between Sextonism that is about calling attention to various excellent performers, and Sextonism that is about trying to lift a particular institution into the existing hierarchy without challenging the hierarchy itself.  He might even ask whether Sextonism won't, in fact, frequently pose a challenge to his view that performance is all that matters.  Precisely because legal academics so frequently are insecure about broader judgments of quality and merit, and precisely because faculty members are so diverse in their areas of specialization that it's difficult for one person to make qualitative judgments about a whole institution, it seems to me that Sextonism at the institutional level will often focus on credentials rather than performance.

Posted by Paul Horwitz on September 25, 2006 at 12:32 PM in Blogging | Permalink


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