Legal Ed's Futures: No. 35 (Dan Rodriguez)

Debbie Merritt’s two posts (here and here) focus sharply and shrewdly on the matter of curricular elitism in law schools.  In her first post, she makes the global point that law schools are sub-serving the agendas and objectives of big corporations and the super elite of our profession.  In the second, she uses the example of criminal justice to drill down on the ways in which law schools give little purchase to the diversity of the vexing issues in our criminal justice system (for example, policing), issues which affect disproportionately those lesser advantaged.

Let me suggest that she is clearly right in her depiction of the state of the world (noting that some innovative exceptions are various law schools are the exceptions which prove the rule), but sketch some reasons to believe that the diagnosis is highly problematic, given the state of the profession.

Law school curricula track (at least) three conditions:  the nature and scope of the demand in the legal marketplace for students educated in a particular way; the availability of faculty resources and, relatedly, the general and particular interests of law professors; and, the identification of law schools with a version of a law school ideal type.  All three of these conditions make it very, very difficult to imagine law schools eschewing elite values and strategies.  (Alas, I should say at the outset, as I expect that Merritt and I share many normative priors).

The legal profession is profoundly stratified and is at least as snobby as the most elitist law school.  Not only do the Cravaths and Wachtells run toward the nation’s 20 or so most highly ranked (I won’t say “best” nor even “top”) law schools for their associates, but so do the highly coveted federal and state prosecutor offices.  Ditto judicial clerkships across the spectrum.  And certainly ditto prestigious public interest placements, be they ACLU, NAACP, etc.  These private and public organizations care precious little about how socially eclectic was the experience of these newly minted law grads. Nor do they care a whit about how deeply immersed these young people were in professional responsibility and legal ethics.  They will care about clinics (to some degree) as a signal of interest in law and of some value in developing expertise, but it won’t be a nuanced appreciation for the ways in which, say, a faculty developed a curriculum rich and variegated in the ways Debbie Merritt sketches in her second post.  So, as professional opportunities track a highly elite mindset, law schools will continue to give the people what they want.

Second, the expertise and interests of faculty members are self-reinforcing.  In many areas of the curricula – including Debbie’s focus, criminal justice, and mine, administrative law/regulatory policy – it would be of enormous value to draw faculty members from areas in which they have gained valuable and diverse experience.  We can surely point to top legal scholars who are “top” largely because they draw upon enormously interesting experience in, say, public defenders’ officers or regulatory agencies.  (James Forman Jr.'s wonderful book, "Locking Up Our Own" is a great example). And, beyond their scholarship, their experiences would provide a foundation from which students would benefit greatly.  But, unfortunately, such faculty members are few and far between.  More commonly, faculty members’ own elite legal experience will drive their interests and their approach to teaching. 

Finally, we must acknowledge that law schools continue to gravitate toward an ideal type.  It is a law school whose reputation was built on their ability to service elements in the elite of our profession with the best and the brightest.  For a hundred or so years, it was Harvard, Yale, Columbia and maybe five or six other law schools we could name.  In the last half century, it has broadened to include, interestingly, perhaps as many as a hundred more law schools – not, I would hasten to add, because a hundred law schools are producing large numbers of graduates who are quickly entering the elite strata of the profession.  But the key point is that these hundred aspire to do this, they aspire to be more like law schools up the ladder and their image tracks an ideal type of the “major” American law school.  Although a comprehensive history of legal education has not been written, any effort would surely focus on the ways in which law schools continue to be seriously stratified by prestige and defined by reputational signals (USN rankings being by far the most important modern signal) but, at the same time, the profession itself is crying out for diversification of mission, for serious attention to the access to justice crisis, to more attention to the complexity of the subjects studied and taught (Merritt’s point), and for myriad innovations which improve our ability to provide value and service a rapidly changing profession.  There is a point to be made here about technology, but I will leave this for a future post.

Dan Rodriguez (Northwestern)