Legal Ed's Futures: No. 28 (Frank Pasquale)

Institutional Pluralism, Metrics, and Diversity

Mike Madison’s “Invitation” has sparked much insightful commentary here, and I wanted to continue the conversation by engaging with an important point from Mark Tushnet’s intervention. Mark observed that “there’s a decent normative case for institutional pluralism (it would be bad were all law schools with religious affiliations to come to be indistinguishable from deeply secular law schools).” Having started my career at a religiously affiliated law school (Seton Hall), and having published research based on Catholic Social Thought, I agree. So I worry about the tensions between humanistic, religious, and civic aims, and the type of neoliberal managerialism all too common in the discourse of higher education reform.

As Sameer M. Ashar has observed, when it comes to legal education, “Leading reformers accept the accelerated disaggregation and commodification of legal practice without attention to aspects of the profession that privilege the public good over market norms and rationales.” This is part of a larger ideological bent to mainstream education reform---the type now celebrated in Congressional committees and the pages of the New York Times. The disruptionist mantra is to deliver more, for less, faster. What is the “more” we are to maximize? In the dominant legal education reform discourse, it is almost always some combination of workforce preparedness, starting pay for graduates, and JD-required jobs.

All of these are good things. But taken to an extreme, focus on them risks trapping us in a finite game, an arms race for spots in an arbitrarily defined hierarchy of graduate placements.* Such a focus also erodes institutional pluralism. To the extent metrics dominate the profession and even menace the existence of some institutions, they draw resources away from non-monetizable quantities (such as a commitment to religious or other moral traditions, social justice, or diversity). As Bruno Frey and Margit Osterloh have observed, “instead of improving performance through accountability, too much energy and time is being consumed in reporting, negotiating, reframing, and presenting performance indicators, all of which distracts from the performance that is desired.” Rankings generate forms of academic capitalism that squeeze out other values.

If we are truly committed to institutional pluralism, and to values in the legal academy beyond pecuniary dimensions of training, we need to cultivate a healthy skepticism of managerialism. We can start with some crucial points of caution about metrics from Christopher Newfield and Heather Steffen: “indicators help create the inequality they measure, while assuring their consumers that the inequality is a natural, preexisting fact. They do this by ignoring distinctive qualities that cannot be quantified and compared.”

That is not to say that metrics are useless. As Jerry Z. Muller argues, “Performance metrics can be beneficial, especially when used not for reward and punishment, but for diagnostic purposes by the practitioners themselves, and are shaped by their professional values, experiences, and expectations.” However, risk-adjustment is essential, especially once we consider the many ways in which external environments drive outcomes that are all too often credited to (or blamed on) institutions.

For example, one school may not do as well as another at placing students in certain jobs, but that may be due to many factors: perhaps the laggard is not teaching relevant topics, or perhaps the leader has engaged in risk selection, by admitting a disproportionate share of students from well-connected families. Discerning the relative merits of each institution depends on careful, qualitative judgment, because even as we compensate for circumstances, that risk adjustment, too, can be gamed (as I explained in another context in a webinar for the Centers for Medicare and Medicaid Services two weeks ago). There are multiple “bottom lines” in accounting for excellence.

So to return to my original point: I hope that in the future, the legal education reform discourse is more sensitive to the ways in which managerialism tends to impose “double binds.” We can’t say that we are committed to institutional pluralism, diversity, and freedom of thought if our main ways of evaluating our success are economistic metrics in which such values are merely an afterthought. We should be proud of our civic role—indeed, as Danielle Allen argues, that is what education is for. On that foundation, we can build a clearer case for the type of financing that will support the many public goods now provided by the graduates, faculty, and staff of law schools.

*Michael Waterstone has constructively suggested ways out of that game by observing the broad relevance of legal training beyond such jobs. And I agree with Hari Osofsky that ““JD Advantage” jobs—those for which a law degree is useful but not required—have grown 14% over the last several years and likely will continue to grow.”

Frank Pasquale (Maryland)