Wednesday, August 29, 2018

Law Schools as a Proxy for Class

Above the Law recently published an article by LawProfBlawg—an anonymous professor at a Top 50 law school—called “Classism in Academia.”  The article takes as a jumping off point the characteristics of law professors in the latest citation count rankings, and notes the low numbers of ranked professors “who didn’t go to a top 10 law school (and more likely to be from a lower socio-economic status).”  This isn’t the first time I’ve seen someone endorse the idea that the law school a student attends is a good proxy for his or her class.  So I thought I’d spend a few minutes explaining why I’m uncomfortable assuming that a law professor’s attendance at a Top 10 law school (as opposed to a lower ranked school) is a good proxy for class.

But before I get to that explanation, let me say that I think that schools should consider socioeconomic status when it comes to achieving diversity both for faculty and students.  And I also think that it is a good idea for schools to hire from a broad array of different law schools.  I’d be happy to defend either of those positions.  But I don’t think that one has to believe either or both of those things to think that we shouldn’t use attendance at a Top 10 school as a proxy for class.

So what do we know about the socioeconomic status of people who attend top 10 law schools?  I haven’t done independent research on the topic, so I can’t say with any authority.  But what I can say is that the evidence offered in this article doesn’t support the proxy argument.  That is because, to show that a professor’s alma mater is a good proxy for class, you’d have to show not only that folks who attend top 10 schools came from money, but also that those who attended schools ranked 11 or below didn’t.  In addition to that, you’d have to show that there is a significant enough difference between the socioeconomic status of people at the top 10 schools and those at schools 11 or below that we can say school attendance is essentially interchangeable with class.  And, from what I’ve seen, the limited data available doesn’t suggest that either of these things are true.

What appears to be the best data set about socioeconomic status in law schools (a data set that didn’t include family income) supports the idea that people who attend law school tend to have a higher socio-economic status than those who don’t.  And the LawProfBlawg article points to it as support for its claim about law school as a proxy for class.  I’m not in a position to assess the methodology or limitations of that study.  But I can say that the study doesn’t show a significant difference between the top 10 law schools and the top 50 law schools.  According to the table on page 9, 82% of students at top 10 law schools are in the top quartile of socioeconomic class, as compared to 77% at schools ranked 11-20, and 73% at schools ranked 21-50.

That comparison is important because it shows a serious weakness with the class proxy argument.  The weakness is that a person who attended a school in the top 50 (but not top 10) ranked law schools is *very* likely to have come from a high socio-economic class—in fact, they are nearly as a likely as a student at a top-10 school to have come from money.  So if we are going to assume that someone who went to a top-10 ranked school had a high socioeconomic status, why would we not assume that about someone who went to a school ranked 15?  Or 35?  Or 42?

I’ll admit that I feel somewhat defensive about this topic.  But I want to be very clear about *why* I feel defensive.  I feel defensive because the law school that I went to—although it is at the top of the US News rankings—wasn’t just filled with the children of the super-rich.  (And there is a best-selling book out there right now that seems to say it is.)  And there is some limited information out that that suggests my school—Yale Law School—doesn’t deserve the reputation that this proxy argument seems to assume.  The current dean of the law school recently tweeted some statistics about the incoming class, including that 10% of the class are the first in their family to attend college and that more than a quarter are the first in their family to attend professional school.  And another Yale grad helpfully tweeted some information about an older survey of YLS students reporting that the median family income was not significantly higher than the national median.

Not only does my law school not get the credit that it deserves, but the claim that school is a proxy for class also makes those of us who went to these schools but who didn’t have a lot of money feel kind  of crappy.  As this topic was being discussed on Twitter, I had a few friends reach out to me to tell me how upset they’ve been when people assume that, because they went to Harvard or Yale, that they must have grown up with a lot of money.  They are upset because comments like this suggest to them that people assume that they didn’t have to work hard to get that degree.  And it especially stings because they remember having to eat Ramen or turn down fancy unpaid internships because they didn’t have the money to do otherwise.

This defensiveness is much different than what LawProfBlawg mentions in his article.  The article says:

I also find it a bit amusing that some who tout the need for student diversity often become exceptionally defensive when looking at their own privilege and the need for academic diversity. I’m not suggesting that those of you who are at elite law schools or who have elite law review placements don’t deserve kudos. It is simultaneously possible to accept that you have been benefitted by privilege based on your race, class, or gender and also continue to value your own writing and scholarship and continue to have it valued.

The working class kids who went to these schools didn’t have the benefit of class.  And insisting that we should use alma mater as a proxy for class minimizes or even erases whatever hurdles they faced by not coming from money.

The proxy argument also exacerbates something that I’ve always found unsatisfying about the current discussion surrounding privilege—that it sometimes suggests that only some have truly “earned” their current success.  I’m not sure that any of us can say that we didn’t benefit from something that was external to ourselves.  For example, even though I didn’t grow up with money, I was extremely lucky to have two parents who greatly valued education, lucky to have a high school teacher who encouraged me to apply to Ivy League schools, lucky to have college friends who convinced me to apply to law school, lucky to have a first year law professor who encouraged me to transfer to Yale since I wanted to teach, and insanely lucky to have a partner who is more supportive and understanding than any other human being that I know.  And if I constantly focus that the advantages that others have because they are male or because they grew up with money, it is easy for me to lose sight of all of the advantages that I did have.  There are plenty of people who worked just as hard as I did and were just as smart, but who weren’t as lucky.  And I don’t want to lose sight of the luck that I’ve had and start thinking that I have only myself to thank for whatever I've accomplished.

But perhaps that most troubling thing about the law school proxy argument is that it is trying to tap into innate feelings about fairness when what we need is a more careful and nuanced discussion about law school hiring.  There is no dispute that it is easier for a candidate to get a law teaching job if she has gone to Harvard or Yale than if she’s gone to a school outside of the top 30.  But it’s not entirely clear why it is easier.  If we say that the difference between those candidates is about money, then we automatically assume that the system must be flawed.  But if the socioeconomic status of students from a school ranked #1 and a school ranked #30 aren’t actually all that different, then we need to have a more difficult conversation about why that hiring difference is a problem.  Is it because Harvard and Yale have better networks for their grads?  Is it because they do a better job teaching their students about academic writing?  Or is it some form of discrimination?  It’s not enough to shout “hierarchy” or “elitism”—you need to have a more nuanced discussion.

I’m not saying that a nuanced argument against our current system can’t be made.  In fact, I think it can.  And since we are law professors, I think that we have a pretty serious obligation to have the nuanced discussion.  We shouldn’t let our own preconceived notions about they “types” of students who graduate from these schools dominate.

Socioeconomic class is something that law schools should care about.  But let’s please stop saying that only top 10 law schools have diversity problems when it comes to class.  It simply isn’t true.  And it prevents us from having a better discussion about the issue.

Posted by Carissa Byrne Hessick on August 29, 2018 at 10:14 AM in Carissa Byrne Hessick, Life of Law Schools, Teaching Law | Permalink


Hi there, this weekend is good for me, because this time i am reading this great educational piece of writing here at my residence.|

Posted by: Harry | Sep 9, 2019 10:46:29 AM

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Posted by: Harry | Sep 8, 2019 1:16:27 PM

Just to echo something Carissa said about Yale, when I applied in 2002 (JSD, but I think it was the same application form as for JD’s), there was a question: “Are you first generation college?” My thought was, thank you for asking, yes I am. I had never seen anyone ask that before and I do think that those of us in that category bring a different perspective. But in order to value this in the diversity of the class, you have to identify it. Others may have been asking it at the same time, but Yale in 2002 was the first one I saw.

Posted by: Wes Oliver | Feb 26, 2019 6:59:19 AM

Can someone figure out how much financial aid Harvard and Yale law offer as part of their total budget? Since they do not offer merit aid, this would be a useful clue about how many lower SES students attend.

Posted by: Joachim | Sep 3, 2018 12:38:23 AM

I think that there is probably too much obsession/debate on top law school as proxy for class - it doesn't seem to be moving the conversation/movement/idea further. We can have many proxies - income, first generation college, top law school, top undergraduate institution, etc. There will also be an anecdote/personal narrative to defeat each proxy - i.e. typically the exception to the rule. No measure or proxy is perfect. Perhaps an index is a good idea. But let's just come up with something and move the ball forward.

Posted by: Jeff Yates | Sep 2, 2018 10:47:26 AM

I'm a little late chiming in to this corner of the larger discussion, but seeing as how it's still going on I'll provide a link to some observations I made in a (public) Facebook post at an earlier stage of the conversation. More anecdata, for sure, and for whatever they might be worth:


Posted by: Chad Oldfather | Sep 2, 2018 9:48:10 AM

I agree with much anonanon is saying, but ... if you stipulate that class among the professoriate and in law schools generally is a problem -- a sense that's been around since Duncan Kennedy, at least -- the problem with "let's talk about class" is that it doesn't lend itself easily to concrete reforms. And other proxies, like JD/PhD, are hardly without problems. That, to me, is why this proxy discussion is potentially useful, though I'm not yet persuaded there's a payoff.

Let's instead suppose that graduating from "elite" law schools of some definition (versus non-elite of some definition) is a proxy for class. Ignore problems in defining these classes (though that is key to any utility), and assume some clear break point. Ignore whether this also maps (weakly) onto academic potential.

Does this proxy, bolstered by these assumptions, help operationalize reform? I'm not seeing it. We should counsel to avoid hiring biases against non-elite grads, stress diversity advantages, and encourage candidates to disclose class-related virtues/challenges. But these are easily defended independent of any proxy argument, and I expect introducing it is as likely to erode as to enhance support. Should we make adverse assumptions about candidates from "elite" schools, or scrutinize them more closely? Assume a school that has an above-average percentage of "elite" (or HYS) professors is less diverse, and that the cure is non-elite hiring? I seriously doubt it.

Maybe there are other ideas, but I would urge those tied up in this proxy discussion to think seriously about the exact payoff.

Posted by: Ed | Sep 2, 2018 8:55:53 AM

Further evidence of the narrowness of law prof hiring comes from looking at the candidates’ undergrad schools. Some years it seems half the serious candidates went to Harvard, Yale, or Princeton. Heck, some years it seems a quarter went to the Wilson School.

Posted by: anonprof06 | Aug 31, 2018 7:00:29 PM

My puzzle with this continues to be LPB's insistence on law school status as a proxy for class (e.g., he frames the law school proxy as the "fundamental question" in this thread, rather than social class itself). We all agree that class is a problem in legal academia. Why not just talk about class directly, instead of getting wrapped up in a debatable proxy for the issue we all seem to agree is important?

For example, race is a problem in legal academia and it needs to diversify (IMO anyway). Racial minorities are also underrepresented in elite law schools. But if I said, "Race is a problem in legal academia. Look, almost all law professors come from top-14 schools and those schools underrepresent racial minorities" that would be a puzzling and distal way of trying to prove the point. The better way of addressing it would be *actually showing that racial minorities are underrepresented among law professors.*

Also, another way we could come at this issue is by looking at the predominance of JD/PhDs in legal academia, whose numbers have been increasing a lot since about 2000. Getting a JD/PhD is a pretty solid indicator of social elite status, since it takes forever and costs a ton. If you need to work or don't speak academic parley well or don't have much money, how are you going to manage to spend that long in grad school?

So I think there are better class proxies out there, but the point remains: Why are we hung up on the proxy when we all agree the thing itself is important?

One reason may be that law schools' hiring narrowly is a separate, unrelated issue that some feel is a problem of independent significance. And it may well be, I'm open to that argument. But as the stats in the article LPB him or herself originally cited, the difference in SES between going to a T10 or T30 or T50 school are not meaningful. So raising the issue of social class but using law school status as your indicator of it, you're muddling rather than illuminating this really important issue.

So if people want to talk about class, let's talk about class. That's what I'd like to do. If you have a different agenda, that's great--just don't conflate two separate issues.

Posted by: anonanon | Aug 31, 2018 4:41:52 PM

But I am certainly not criticizing any call for more data. It's that part of things that has slowed my own book effort so much.

Posted by: Paul Horwitz | Aug 31, 2018 4:02:16 PM

"My hypothesis is that anybody who might have the extraordinary shrewedness, ambition, and ability to get to a top ten law school as a faculty member would find it a small trick to figure out that it would help to get a double ivy education, and to get one." I don't think this is as true as you think. Ability and ambition are not the same thing as shrewdness. To know what to be shrewd about it helps to have access to resources, including social capital/networks, that tell you what you need to do to get certain things, or even that some things exist that might be a worthy subject of your ability and ambition. Of course some people who have not been groomed from infancy to know that Yale exists and gives one a disproportionate access to certain job opportunities will find out. But others, who are indeed brilliant or capable of brilliance and perfectly ambitious, will go to a local or state law school, not because they worry about expensive tuitions or have family or other local obligations they don't have the luxury of not worrying about (although that's also true) but because they don't know that the difference between going to the 40th "best" law school in the country and the 2nd is the difference between having a chance to get a teaching job and having virtually no chance at all of getting one no matter how well they perform.

Posted by: Paul Horwitz | Aug 31, 2018 4:01:45 PM

I really want harder data on this. I'm not going to name names, but off-hand I can think of a prof at a top two school who's parent was career Air Force enlisted, another whose parents never graduated from high school. They themselves went to elite schools and are quite polished. They are counted as high SES by Lawprawfblog (and they happen to be white, so they don't fit in to a point I made in a previous post), but they were not at the relevant time. My hypothesis is that anybody who might have the extraordinary shrewedness, ambition, and ability to get to a top ten law school as a faculty member would find it a small trick to figure out that it would help to get a double ivy education, and to get one.

Posted by: Joachim | Aug 31, 2018 3:08:49 PM

I went to "elite" schools and have taught at such schools, where I have been surprised by how few of my colleagues have a family like mine, where a good portion of one's first cousins do not have a college degree. At a talk years ago when the speaker asked if anyone had a close relative who had spent time in prison, I was the only one with my hand raised. I still feel out of place at times despite 10+ years in this business and "looking" the part.

What could be measured -- perhaps -- is how many professors are children of at least one academic. The number of second generation academics I know is high.

Posted by: anonymous prof | Aug 31, 2018 1:00:30 PM

An interesting personal narrative on class mobility (and its personal costs) can be found in Alfred Lubrano's book: https://www.amazon.com/Limbo-Blue-Collar-Roots-White-Collar-Dreams/dp/0471714399/ref=sr_1_1?ie=UTF8&qid=1535731279&sr=8-1&keywords=alfred+lubrano

Posted by: Jeff Yates | Aug 31, 2018 12:01:50 PM

My reply to Professor Hessick's post about my first post. https://abovethelaw.com/2018/08/classism-in-academia-ii-your-improbable-path-from-lower-socioeconomic-status-ses-to-professor-at-a-top-10-law-school/

Posted by: Lawprofblawg | Aug 31, 2018 10:04:45 AM

For some reason, this thread appears upside-down to me, which may mean the revolution is underway. If this shows, I'd just say, in case it's not already surfaced, that Professor Jeffrey Harrison blogged on class biases (and other issues) in legal education for quite some time at http://classbias.blogspot.com/.

Posted by: Ed | Aug 30, 2018 4:33:49 PM

The comments on this post are very interesting. I'm in the process of outlining very carefully the issues of class arising on one's path to teaching at a top 10 law school, starting with the SAT, the empirical literature on socioeconomic status and undergraduate institutions, barriers to entry from standardized testing, and then other data looking at the output side of the market.

In other words, perhaps there is more literature and data out there that supports my position. Stay tuned.

I will say I am glad I started this conversation, no matter how much my twitter feed tests that assertion.

But let's not forget why I started it:

Why are 94% of all faculty at top 10 schools graduated from top 10 schools? Why are nearly all of the 2017 top 10 law review authors from those schools as well? Why are only 30% of those academics at top 10 law schools women? Why don't we care about the most cited legal writing professors, clinical professors, or law librarians? Why can’t they seem to get published in top 10 law reviews?

These are the fundamental questions that need answering, in my opinion.

Stay tuned!

Posted by: Lawprofblawg | Aug 30, 2018 1:32:47 PM

My anecdata as a kid from a very poor family is that I could only afford to attend rich schools with lots of capacity for financial aid--higher-ranked schools offered much more financial aid, at both the undergraduate and law school level, than lower ranked schools.

My additional anecdata is that among the other faculty of color I know, many also seemed to have come from very poor backgrounds. So is this debate about why so few faculty come from low SES backgrounds or why so few white faculty come from low SES backgrounds? Both questions are interesting and (to my mind) legitimate, but I would like to be clear what is at stake.

Also, with regard to the demographic skew, I have to add that I think the advantages accruing to members of affluent families actually can translate to "merit"--the group of young people who have good health care, quiet, safe places to live and study, tutoring if necessary, small class sizes, enriching summer activities, etc., in the aggregate are better able to develop their inherent talents and do productive work as university students and adults. (G**-d***, some of those kids at 127 Wall Street were smart and pretty and polished and effective!) My conclusion from this is not that the rich deserve their advantage but for much more significant wealth transfers to give everyone a decent shot.

Posted by: Joachim | Aug 30, 2018 1:26:42 PM

On the self-reported hiring report (so subject to all the inaccuracies of that report), from 2011 to 2018, 76.6% (587) of the 766 total reported hires were from T14 schools.

School-specifically, 16.4% were from Yale, 15.1% were from Harvard. Then there was a big drop-off to NYU (9.7%), and then Columbia (5.7%) and Stanford (5.4%). For entry-level hiring, at least, it seems that HYS isn't accurate--HY is much more accurate.

Posted by: Sarah Lawsky | Aug 30, 2018 12:11:12 PM

I think it is even more problematic that law schools draw from elite VAPs/fellowships and PhD programs if we are worried about hiring people from lower socioeconomic status. These people are less likely to be able to afford the low salary at the PhD or VAP. They are also more likely to take up the T10 school's offer for free or reduced tuition than the H/Y/S offer for close to full freight. Without the H/Y/S degree, they are much less likely to get the VAP. Of course, there will be many counterexamples, but the system is clearly biased against people with lower socioeconomic status (shocking, I know).

Posted by: AnonProf | Aug 30, 2018 11:44:25 AM

This conversation has been productive, but what can be done now to promote these kind of candidates? Venues like this could be helpful to feature people with interesting work who lack the top pedigree or elite VAPs. This may also be a good place for a conversation about the SEALS hiring conference. The SEALS format is friendlier to these kinds of candidates, while having two hiring conferences is not.

Posted by: AnonAnon | Aug 30, 2018 10:08:05 AM

Promises of a future post of my own are unwise since I may not get around to it. So let me say primarily that I think this is an important issue (I've been working on a book on this subject, although pathetically slowly) and I'm grateful for the post. Of course there are plenty of questions one can fairly ask, although it would be odd if social class and its effects, which are massively salient effects across a range of institutions in the United States, were dealt with effectively by the American legal academy--maybe *especially* the American legal academy. I would just add that there is some difficulty in defining "class" here for relevant purposes, and that SES is only one relevant description (although it's an easier thing to measure). We might well talk about social class itself, despite frequent American denials that such a thing exists in the United States. And we might talk about social capital, which very much exists and is often both inherited and hoarded. I doubt someone at a top law school asks who someone's parents are (except sometimes). But I'm sure they look for or are drawn to or approving of a candidate by, inter alia, their social networks, the judges for whom they clerked (itself often helped along by the social networks and capital of the applicant), their facility or glibness at certain kinds of belief, behavior, and talk, and so on. The brilliant person who attends a non-top law school may indeed be brilliant but a) not have known that for certain kinds of jobs it makes sense to attend a top law school, b) not have had pre-existing social capital, and c) may not accrue much at the school he or she attends.

Posted by: Paul Horwitz | Aug 30, 2018 9:47:58 AM

Many good thoughts here. In terms of why students outside the T14 express less interest in teaching, J is right that there's a feedback loop afoot: If you want to get into law teaching, you learn beforehand that you should probably attend a T14 school, and preferably HYS. Once in school, if you're not at a T14 institution, the standard advice is you've got a harder row to hoe (true) and you might be better served to go the LLM route. That's clearly a major part of the story.

Another aspect of the issue, though, is that the students I've talked to at lower-ranked schools who want to teach often change their tune when I explain what the job actually entails: I.e., not just teaching but writing academic articles. By contrast, students at T14 schools, in my observation anyway, tend to have more interest in writing scholarship in addition to classroom teaching. So the desire to do all parts of the job, rather than just instruct students, is not as widely shared among students at the schools I've seen. It could be a product of some social pathology that students more interested in scholarship end up at T14 schools, but at the very least this is descriptively another part of the story.

A final part of the story is that getting an academic job, even if you're a n HYS grad, is really really fucking hard. It's a low-probability endeavor even for grads of elite schools, and I know more people who tried and failed to get teaching jobs even with outstanding resumes from HYS type places than those who succeeded. The articles on how to become a law professor are littered with ominous statistics about the failure rate of applicants based on the FAR from year to year. So lower-ranked law schools that are having trouble getting their students any jobs may just be making a wise resource decision that marginally increasing the already low chances of getting a student a teaching job is jus not worth the candle. I know, I know, feedback loop and points 1-3 are related. This reply seeks just to add to the point I made above, which I think is more complicated than a single explanation can let on.

As for Jrprof, I'm on board with the position that lower SES should be a major plus-factor in hiring. But I'm sympathetic to the risk-aversion that not everyone in hiring situations will share this reaction. That's one part of this much broader problem.

Posted by: anonanon | Aug 30, 2018 8:35:05 AM

My gut says the class effect is more about getting into a school (test bias, inability to pay for LSAT prep, working while in college) than paying for it.

Posted by: AnonAnon | Aug 30, 2018 6:36:57 AM

I want to focus on Orin's second point "It is problematic that legal academia tends to draw its members from graduates of a very small number of law schools." The issue is more pronounced than he writes since many people can "polish" a JD from outside the top 12 with an LLM or PhD from a more prestigious institution and can join the elite that way. My sense is that while traditionally law schools may have been a proxy for economic background, given the rise of both increased state tuition and massive price discrimination in terms of scholarships for lots of schools in the top 10 (and indeed, at least the top 50 law schools), school is no longer a proxy for class. I also would add that as the gap between the top 1% and top 5% has widened, looking merely at the top 25% may mask much more significant socio-economic disparities, thereby strengthening Orin's first point.

Posted by: Daniel Sokol | Aug 30, 2018 6:09:09 AM

Jrprof writes: "I went on the market within the past few years, and asked several people about whether to reveal I was from a very low-income family, such as in the cover letter or research agenda, and the answer I mostly got was "probably not worth the risk." "

I agree with Ed that this would be seen as a credit to the candidate. (In my view, a significant credit.) Something I would put in the cover letter if it's not related to your research, and in the research agenda if it is.

Posted by: Orin Kerr | Aug 30, 2018 5:34:19 AM

There's a lot to what anonanon (!) says, though it's getting increasingly hard to extricate a basic intuition -- that law school hiring screens to an undue degree on a few elite schools, with associated risk of error in conventional aptitude and some diversity costs -- from the associated theses about links to class, which is more difficult to establish or remedy.

As to J: personally, I'd prefer to work on hiring attitudes than see many under-represented schools divert scarce resources to would-be academics. It would be great if there were a couple, of course, that law students could select, but we have relatively little such differentiation. And BTW, I suspect one reason students select (or transfer to) schools of the HYS type, and decline merit aid elsewhere, is because of their potential teaching interest . . . so we have a selection effect going on in the basic diagnosis.

jrprof: I'm surprised anyone said there was a "risk" in so identifying yourself, save that it might seem odd to flag it too heavily in basic or introductory materials as though it compensated for something else . . . and granting that the accepted style of presenting a diversity case is itself a frustrating code to break. In my experience, to the extent the issue of "class" has ever been surfaced or mentioned -- as in "worked way through college and law school," "first generation," etc. -- it has invariably been viewed as a credit to the candidate.

Posted by: Ed | Aug 30, 2018 5:07:40 AM

anonanon says: "I can say that (1) students outside the top however-many seem a lot less interested in academia and (2) those schools pay a lot less attention to academic careers as an option for their students. These things, obviously, may be related."

These are related, but more than that, they're both symptoms of something else - the fact that everyone is basically told if you don't go to HYS, you have little chance of going into academia, and if you don't go to a T14 you have *no* chance. They're told this explicitly if they ask about it, and they're told this implicitly through look at the narrow band of law schools their own professors went to. If you're a student at a school below T14, of course you'll be less interested in academia because you've internalized the (completely accurate) message that you won't get an academic job. Same with (2) - why should a school invest in resources to help their students get academic careers when the data shows that they just aren't going to be able to get them?

Possibly it's a chicken and egg problem - if under-T14 law schools start investing more in options for their students to become academics, and if the students themselves availed themselves of that investment, maybe more of them would manage to eke their way into an academic job. It doesn't seem likely, though, given we live in a system where there will always be several Harvard or Yale grads fighting for your job, and hiring committees seem to like using that sort of heuristic in deciding who to interview and hire.

Posted by: J | Aug 30, 2018 1:45:03 AM

The argument is simply that it is harder for people from lower SES to get into better schools, both undergraduate and law. When hiring committees use a candidate’s school as a proxy for quality, that disparately impacts those who face hurdles getting into better schools or make decisions to attend schools for other personal reasons. Publications should be what matter, but even then without a blind process students use institutions as a proxy for quality and determine what gets published. At some point the system needs to give people from outside the T3 or T14 an opportunity to “get ahead” and prove themselves if they want to join our ranks. I’m not sure we do that now.

Posted by: AnonAnon | Aug 29, 2018 11:31:19 PM

Silly argument/debate, how would anyone know a Professor's socioeconomic background? I have a hard time even figuring out what the argument is -- more students who go to top law schools are from high socioeconomic backgrounds therefore all Professors from those schools are from high socioeconomic backgrounds? Seriously?

Posted by: MLS | Aug 29, 2018 11:03:39 PM

Let me play devil's advocate w/r/t Orin's point. Is it a concern that most law professors come from a relatively narrow band of schools?

Why do we care about underrepresentation of other groups--defined by race, gender, class, sexual orientation--in the ranks of law professors? One reason is that their under-representation is a sign of a social pathology, namely discrimination against those who attended law schools outside the top 10.

This reason can't be why we'd have concern for the schools law professors graduated from. Going to, say, SMU as opposed to Georgetown will change your legal job prospects across the board, but is qualitatively different from the kind of pernicious historical discrimination that leads us to select certain classes for constitutional scrutiny,

And to the extent that there is some correlation between the narrow band of schools from which law professors are hired and these historically disadvantaged groups (and there is in most cases) then that can and should be directly addressed by seeking to increase the ranks of those groups. To the extent those groups may be underrepresented in elite law schools, then law schools can and should look past law school graduate status to make sure they are attracting and hiring faculty from historically disadvantaged groups. But there's no reason to focus on a weak or distant proxy for these factors when we can focus primarily on them.

Another claim that's been made is that law professors from elite schools all bring the same perspective to legal education. I don't buy this one either. I've taught at first, second, third and fourth tier law schools so I have a direct perspective on how education works at each of these kinds of places, and the overall approach is overwhelmingly similar in terms of subject matter, pedagogical style, etc. There are differences but they seem more idiosyncratic, not linked to the ranking of the school. In fact, it is a selling point of lower-ranked schools that they offer the same basic education in terms of content and style that Yale or Harvard offers.

Finally, I take Orin's final point to be that focusing on a narrow band of schools ignores "smart" people who would make good law professors from other schools. As the scare quotes indicate, I've grown to loathe the word "smart" because it's loaded and can mean countless different things--ability to ace standardized tests, street smarts, emotional intelligence, etc. But if the point is just that there are talented potential law professors at schools outside the elite ones, that's possible. Having taught at several schools outside that echelon, I can say that (1) students outside the top however-many seem a lot less interested in academia and (2) those schools pay a lot less attention to academic careers as an option for their students. These things, obviously, may be related.

As Carissa's post illustrates, there are many people in legal academia who went to elite schools but did not come from a privileged background. Those people are inclined to care a lot about this issue. That's what's so unfortunate about the original framing in terms of law-school-graduate status: By using a weak, empirically unsupported proxy for class it's polluted the debate by getting it bogged down in the minutiae of why this proxy is such a poor one. I vote those of us who care about this issue agree that law school grad status is not a meaningful measure so we can move on to discuss the real issue where I think there's widespread agreement: that social class matters and that we could do better to work on it in both the law professor ranks and among our students.

Posted by: anonanon | Aug 29, 2018 10:54:15 PM

What are people's thoughts on how to address the problem of professors hailing seldom from poorer socio-economic backgrounds? I went on the market within the past few years, and asked several people about whether to reveal I was from a very low-income family, such as in the cover letter or research agenda, and the answer I mostly got was "probably not worth the risk." So I kept it to myself. But if hiring committees don't know, they can't do anything about it.

Posted by: jrprof | Aug 29, 2018 8:12:44 PM

To add to Orin's response re #2, and directly to Michael Risch's question . . . An additional reason to be concerned about the professoriate being drawn from a very small number of law schools is that it tends to reinforce a particular perspective on the law and legal instruction. It tends toward monotheism. This tends to explain "the revealed preferences," because those of a particular view will tend to hire toward it, without necessarily recognizing that's what they're doing.

Nothing in this depends on any particular relationship to class, but that would tend to reinforce it.

Posted by: Ed | Aug 29, 2018 7:34:58 PM

On #2, I think it's a problem because the law school a person attended is a relatively poor proxy for the kinds of things we academics claim to value among professors (intelligence, scholarly ability, etc.) The revealed preference is that schools rely heavily on the law-school-attended proxy. But it's problematic, in my view, because it's a relatively poor proxy. There are not-so-smart people who attended the best law schools. And there are incredibly smart people who attended not-so-top law schools. Relying too much on the proxy means giving gold stars to some who aren't that great and pushing aside those who are, which I see as problematic.

Posted by: Orin Kerr | Aug 29, 2018 6:32:13 PM

I don't necessarily disagree with what Orin says here, but it does shift the discussion quite a bit. His No. 3 essentially brackets the central relationship at issue. As to his No. 1, stating that the problem is that "legal academia draws a very high percentage of professors from a very narrow socio-economic group" is different from the saying that legal academia draws a higher percentage from that narrow socio-economic group than among law school graduates generally. The law-school baseline is, I gather already quite elite, and professors are quite likely to reflect that characteristic, unless they parachute in from another discipline. I assume most class-related objections are asserting and objecting to the yet more elite character of professors, or they would probably be talking more about admissions and financial aid.

Posted by: Ed | Aug 29, 2018 5:32:29 PM

But why are Orin's #1 and #2 problematic? I don't read Dorf on Law regularly but I do remember reading a post a number of years ago where Neil Buchanan stated that the reason he became a lawyer was that it offered a path to upward mobility (upward mobility as he defined it, at any rate). So why should it be any surprise that those who have achieved that upward mobility should want to keep the status they have achieved and pass it along to the next generation of people like them?

Is law school a proxy for class? Would be a damn shame and a waste of a good education if it wasn't.

Posted by: James | Aug 29, 2018 5:02:41 PM

I don't think everyone could agree with Orin's No. 2, because the revealed preferences make clear that they don't. So, if everyone say it is a problem, the question is why the revealed preferences are different from the stated preferences.

Posted by: Michael Risch | Aug 29, 2018 4:26:40 PM

Here’s a great article on that topic: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2007934

Posted by: Anon | Aug 29, 2018 4:19:24 PM

Very well stated Orin - that's about all we need to start the conversation.

Posted by: Jeff Yates | Aug 29, 2018 3:58:08 PM

I wonder if all could agree with the following:

1) It is problematic that legal academia draws a very high percentage of professors from a very narrow socio-economic group.
2) It is problematic that legal academia tends to draw its members from graduates of a very small number of law schools.
3) The link between (1) and (2) is unclear, but each, standing alone, is problematic.

Posted by: Orin Kerr | Aug 29, 2018 3:47:32 PM

what's "significant"?

what jumps out to me in that chart is that for the top ten law schools, there's a bump up in the percentage of top 10% of SES.

27% for schools ranked 101-200;
36% for schools ranked 51-100;
48% for schools ranked 21-50;
49% for schools ranked 11-20 (note the increase flattened out); then
57% for schools 91-100.

Posted by: anon2 | Aug 29, 2018 3:15:05 PM

The Sanders article in the Denver Law Review is the study that I mention in the blog post itself. As I said "the study doesn’t show a significant difference between the top 10 law schools and the top 50 law schools. According to the table on page 9, 82% of students at top 10 law schools are in the top quartile of socioeconomic class, as compared to 77% at schools ranked 11-20, and 73% at schools ranked 21-50."

Posted by: CBHessick | Aug 29, 2018 2:12:37 PM

Richard Sander has written extensively about this: http://www.law.du.edu/documents/denver-university-law-review/v88-4/Sander%20Final_ToPrinter_917.pdf

Posted by: Anon | Aug 29, 2018 12:45:11 PM

Harvard and Yale do a better job of convincing their students that they are the brightest, they are the best, and they are the ones worthy of teaching others and capable of doing meaningful scholarship. As a working class top 10 law school grad, I actually had a small committee of people attempting to convince me to join academia, but I could not convince myself I had anything worthy to say or was as smart as all the uber confident professorial candidates.

Posted by: Anonymous | Aug 29, 2018 10:29:02 AM

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