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Enduring Hierarchies in American Legal Education

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Enduring Hierarchies in American Legal Education Enduring Hierarchies in American Legal Education * ** *** OLUFUNMILAYO B. AREWA, ANDREW P. MORRISS & WILLIAM D. HENDERSON Although much attention has been paid to U.S. News & World Report’s rankings of U.S. law schools, the hierarchy it describes is a long-standing one rather than a recent innovation. In this Article, we show the presence of a consistent hierarchy of U.S. law schools from the 1930s to the present, provide a categorization of law schools for use in research on trends in legal education, and examine the impact of U.S. News’s introduction of a national, ordinal ranking on this established hierarchy. The Article examines the impact of such hierarchies for a range of decision making in law school contexts, including the role of hierarchies in promotion, tenure, publication, and admissions; for employers in hiring; and for prospective law students in choosing a law school. This Article concludes with suggestions for ways the legal academy can move beyond existing hierarchies, while still addressing issues of pressing concern in the legal education sector. Finally, the Article provides a categorization of law schools across time that can serve as a basis for future empirical work on trends in legal education and scholarship. INTRODUCTION ...................................................................................................... 942 I. HIERARCHICAL COMPETITION IN LEGAL EDUCATION ......................................... 944 A. CREATING THE TWENTIETH-CENTURY MODEL ........................................ 945 B. ESTABLISHING THE HIERARCHY ............................................................... 954 II. CATEGORIZING LAW SCHOOLS ACROSS TIME ................................................... 971 A. CONSTRUCTING CATEGORIES .................................................................. 971 B. THE CATEGORIES ..................................................................................... 997 III. CONSEQUENCES OF LAW SCHOOL HIERARCHIES ............................................ 1002 A. THE IMPACT OF U.S. NEWS RANKINGS .................................................. 1005 B. THE ROLE OF INSTITUTIONAL PRESTIGE IN THE LEGAL ACADEMY ........ 1009 CONCLUSION........................................................................................................ 1017 APPENDIX ............................................................................................................ 1020 † Copyright © 2014 Olufunmilayo B. Arewa, Andrew P. Morriss & William D. Henderson. * Professor of Law and Anthropology, University of California, Irvine School of Law. AB, Harvard College, MA, PhD., University of California, Berkeley (Anthropology); AM, University of Michigan (Applied Economics); JD, Harvard Law School. We are grateful for Barbara Sellers’s magic in formatting tables, University of Alabama law librarian Robert Marshall’s legal research wizardry, the American Law Institute’s sharing of its data, and Phillip Gastineau’s research assistance. For their helpful comments, we are indebted to Jonathan Adler, Erwin Chemerinsky, Sarah Lawsky, Roger Meiners, and Peter Riegel. ** D. Paul Jones, Jr. & Charlene A. Jones Chairholder in Law & Professor of Business, University of Alabama School of Law. AB Princeton University; JD, M.Pub.Aff., The University of Texas at Austin; PhD (Economics), M.I.T. *** Professor of Law and Director of the Center on the Global Legal Profession, Indiana University Maurer School of Law. BA, Case Western Reserve University; JD, University of Chicago. 942 INDIANA LAW JOURNAL [Vol. 89:941 INTRODUCTION In the twenty-five years since U.S. News & World Report first ranked U.S. law schools, legal academics have debated whether or not the magazine’s law school rankings have created a problematic hierarchy among law schools,1 with the competition for higher ranking often characterized as an unproductive “arms race.”2 This debate rests in part on a false premise. The current hierarchy is not the product of U.S. News rankings, but instead merely the latest iteration of a long-standing, persistent hierarchy of American law schools that has endured through major changes in the market for lawyers, legal education, law professors, and legal scholarship. In this Article we use a wide range of evidence to document this persistent hierarchy. Schools have opened, changed position, changed names or university affiliations, or closed, and we show that relatively little movement has occurred between segments of the hierarchy since the 1920s.3 Moreover, while the U.S. News rankings have brought the competition among schools for places within the hierarchy more into the open, the competition––including aspects similar to those decried today––long predates the rankings.4 Understanding enduring law school hierarchies is important for four key reasons. (1) Defining of Educational Goals. The legal academy places considerable–– and, we believe, overly great––weight on institutional prestige in 1. E.g., MICHAEL SAUDER & WENDY ESPELAND, LAW SCH. ADMISSION COUNCIL, FEAR OF FALLING: THE EFFECTS OF U.S. NEWS & WORLD REPORT RANKINGS ON U.S. LAW SCHOOLS 7 (2007), available at http://www.lsac.org/docs/default-source/research-(lsac-resources)/gr -07-02.pdf (“The vast majority of administrators we interviewed held negative views of rankings: Most believed that rankings were more harmful than beneficial to their particular schools as well as to legal education generally.”); Cynthia Cotts, Deans and Watchdogs Flunk U.S. News Law School Rankings, NAT’L L.J., Mar. 2, 1998, at A13. 2. Alex Wellen, The $8.78 Million Maneuver, N.Y. TIMES, July 31, 2005, at 18, available at http://www.nytimes.com/2005/07/31/education/edlife/wellen31.html?page— wanted=all&_r=0 (“Critics say law schools are engaged in an LSAT and G.P.A. arms race in which they exploit technicalities in U.S. News’s methodology.”). 3. Despite the general stability of the hierarchy, schools can change their character. To take just one example, Catholic University rejected an effort by the Roman Catholic Church to shift Georgetown’s law school to Catholic University in the 1890s because Catholic thought Georgetown to be of insufficient quality. ROBERT STEVENS, LAW SCHOOL: LEGAL EDUCATION IN AMERICA FROM THE 1850S TO THE 1980S, at 76–77 (G. Edward White ed., The Lawbook Exchange 2001) (1983). Today, Georgetown is among the nation’s best law schools by any measure. See, e.g., Best Law Schools, U.S. NEWS & WORLD REP. BEST GRAD SCHS. 2013 ED. (2012) (ranking Georgetown #13); Brian Leiter, Top 70 Law Faculties in Scholarly Impact, 2007–2011, LEITER RANKINGS (July 2012), http://www.leiterrankings.com /new/2012_scholarlyimpact.shtml (ranking Georgetown #18). 4. Although law school hierarchies exist in the shadow of broader university hierarchies, this Article will focus to a significant degree on the impact of law school hierarchies and will not address issues related to university hierarchies that no doubt have an impact on law school hierarchies. Karen M. Morin & Tamar Y. Rothenberg, Our Theories, Ourselves: Hierarchies of Place and Status in the U.S. Academy, 10 ACME 58, 59 (2011) (discussing the impact of academic hierarchies on student educational motivations). 2014] ENDURING HIERARCHIES IN LEGAL EDUCATION 943 everything from article placement decisions (by both editors and authors) to hiring, promotion, and tenure.5 Yet, as Russell Korobkin argues, prestige competition can channel behavior in productive directions.6 A clearer understanding of the hierarchy’s nature can play a role in shifting competition toward more productive avenues. (2) Effective Reform Efforts. Understanding the enduring nature of the positional competition among law schools is essential to the ongoing law school reform efforts. Current debates over the role of U.S. News’s rankings largely ignore the pre-existing competition and divisions among law schools. As a result, measures such as calls for schools to decline to participate in U.S. News’s annual surveys7 are based on the false premise that doing away with or changing a particular ranking will end the “arms race” of competition among schools for status.8 For better or worse, the quest for status is endemic to lawyers and law professors. (3) Labor Market Outcomes. The law school hierarchy maps onto a parallel hierarchy of employment opportunities for law school graduates. As the U.S. legal academy wrestles with changes in the legal job market in the aftermath of the credit crisis and as the legal job market goes through structural changes,9 understanding the law school hierarchy provides an essential realism on the job prospects of law school graduates. (4) Better Understanding of Long-Term Trends. If an enduring hierarchy is shaping the careers of lawyers and law professors, an accurate system of categorization is essential for tracking long-term trends in legal academia and the legal profession.10 Our analysis provides the basis for variables that capture law school status across time, facilitating future research. 5. Tracey E. George & Chris Guthrie, In Defense of Author Prominence: A Reply to Crespi and Korobkin, 26 FLA. ST. U. L. REV. 877, 881 (1999) (“The perceived prestige of law schools, law professors, law firms, and law reviews has a profound impact on many of the educational and professional decisions that law students, lawyers, and law professors make.”). 6. Russell Korobkin, In Praise of Law School Rankings: Solutions to Coordination and Collective Action Problems, 77 TEX. L. REV. 403, 417 (1998). 7. E.g., Gary J. Simson, Say
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