Monday, January 31, 2011

Whether law school is a losing game is not the right question

Not a day goes by that a friend or acquaintance does not ask me about the Times piece a few weeks ago that posited whether law school is "a losing game."  This is because law graduates incur great debt to acquire their law degrees only to enter into an over-burdened market that will not provide adequate jobs for all.  At the center of this mess are the law schools, which massage their numbers in order to win (or not lose) the rankings game.  According to my colleague Bill Henderson, “Enron-type accounting standards have become the norm.” Things are so bad, he says, that “[e]very time I look at this data, I feel dirty.”

The examples can be quite disheartening.  Most troubling are the numbers that involve students and jobs.  What does it mean to be working right after graduation, for example, or nine months after?  Waiting tables counts, or stocking shelves at the local grocery store.  Worse yet are anecdotes of law schools hiring their own graduates for short periods of time in order to count them as "working," whether at graduation or nine months later.

Henderson calls this state of affairs an open secret, and he is certainly right about that.  My first reaction upon seeing the the Times piece was one of surprise tinged with incredulity.  I could not believe, that is, that people did not know about this.  How could they not?  Or put another way, how could law schools keep their actions secret for as long as they have?

My second reaction was more cynical.  The U.S. News rankings are often defended -- by the editors of the magazine, of course -- as a way to give law school applicants needed information upon which to make sound educational and financial decisions.  This is an argument for the proposition that all information is good information, and students deserve whatever it is that the rankings give them.  But this article makes amply clear that there is such a thing as bad information.  Not all information is the same, yet applicants have no way to sift between good and bad information.

This leads to a more important point.  When you think about law school rankings, the obvious question is one of intended audience.  Why is it that these rankings matter as much as they do?  Why is it that law school deans spend as much time as they do trying to influence them (or game them, as the case may be)?  Who cares, in other words, whether your law school is 10th, 20th, or 55th in the rankings of a magazine that probably would not even exist anymore but for these silly rankings?  Call me naive, but I don't have a good answer to these questions.  Yet somehow, applicants care; and deans care; and alums care.  To which I say: heaven help us.  

I am far more intrigued by these rankings for a different reason.  They demonstrate, for anyone who cares to pay attention, how hard it is to ascertain merit.  I'd suggest it is downright impossible.  This is a pervasive problem.  For example, who deserves admission to our law schools and institutions of higher education in general?  How to decide who to hire to our faculties?  Who to hire for the fancy law firms in the big cities?  We pretend as if these are easy questions.  This is the lesson from the U.S. Supreme Court  and its affirmative action cases, and it is also a myth deeply ingrained in our consciousness.  Merit matters.  But this is a canard.  Of course "merit" matters as an abstract proposition.  The far more difficult question lies in ascertaining what encompasses a sensible definition of merit and how anyone goes about applying it in practice.  This is not easy, conservative critics notwithstanding.  To suggest that we know what merit looks like and that we can easily discern it is presumptuous at best or, to paraphrase Justice Brennan, it is arrogance cloaked in humility.

The U.S. News pretends that it has a fool-proof formula to determine which law schools rank as the best law schools, and which ones do not.  But this is silly, and presumptuous.  Yet somehow, these rankings have taken a hold of our legal institutions.  And that is the bigger story.  How is it that sensible people have gotten caught in this mess?

Maybe the Times should do a follow up story about that.

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