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A Graduation Missive on Elitism in the Law:
Or, as Larry David Would Put It, "I need a little more flair. I don't have enough flair."


Friday, May. 11, 2007

In an October 2005 column endorsing Harriet Miers's nomination to the U.S. Supreme Court, one of us (Scott Gerber) argued that it was a myth that great Supreme Court justices must be former judges from elite law schools. The other (Kevin Hawley) enjoyed the column, but disagreed with almost every word of it. (Hawley was pleased to see that Gerber had managed to spell Miers's name correctly.)

With law school graduation season in high gear, we were invited to write a joint column about two other aspects of elitism in the law: elitism in legal academia, and elitism in law practice. Gerber, a full-time law professor and the son of an academic, knows a fair amount about the first. Hawley, a part-time law professor and a former partner in one of the most prominent law firms in the United States, knows a lot about the second.

This time, each of us agrees with what the other has to say. Well, not really . . .

Elitism in Legal Academia: Is Anything Professor Ivy League Has to Say Better than Everything Gerber Has to Say?

At the outset, we should mention that we admire and respect the icon we shall call Professor Ivy League, although we have never met the man. (We changed his name to protect the innocent--us.) How could we not think highly of him? He (and it usually is a "he") received both his undergraduate and law degrees from Harvard, clerked for a U.S. Supreme Court justice, worked as an attorney-advisor in the Office of Legal Counsel, and has been on the law faculty at one of the finest universities in the nation since the early 1980s. He also is a member of the political science department at that university, despite the absence of a Ph.D.

Still a relatively young man, Professor Ivy League has published more than twenty-five books and over 175 law review articles. He likewise has penned scores of Op Eds, book chapters, and short essays. (We were planning on being more specific than "more than," "over," and "scores of," but we got tired of counting.) And many--nay more, most--of his law review articles were published by the nation's top ten law journals. For those readers without a current subscription to U.S. News, the list includes Yale, Harvard, Stanford, Columbia, NYU, Chicago, Penn, Berkeley, Michigan, Duke, and Virginia.

Gerber, in contrast, has placed only one article in a top ten law review, and that was a fluke: He was invited to write a short response to the issue's lead article, which happened to cite one of his books in two footnotes. (Hawley isn't required to try to place law review articles, nor does he need to respond to citations in footnotes.)

Even assuming that Professor Ivy League is a lot smarter than Gerber is (Gerber is willing to assume this for the sake of argument; Hawley is willing to admit it), recent events have made us skeptical about whether the professor's intellectual superiority is the sole explanation for his success in placing his law review articles and for Gerber's lack thereof. For example, Gerber, who holds a Ph.D. in political science in addition to a J.D., has published in the American Political Science Review, while Professor Ivy League has not. The American Political Science Review is a peer-reviewed journal that employs a "double-blind" evaluation process, in which the professorial referees don't know the author's identity, and the author doesn't know the referees' identities. Law review publication decisions, in comparison, are made by law students who are fully aware of the author's name and where he or she teaches. In fact, the law student editors insist on this information.

For what it's worth, even Hawley is willing to concede that Gerber is at least as talented a literary stylist as Professor Ivy League is: Gerber has written two novels, whereas Professor Ivy League hasn't published any. (Hawley also is willing to concede that it was Gerber's idea to write this sparkling Op Ed.)

There's also the matter of a couple of smoking guns. (Both lawyer/novelists--Gerber--and real lawyers--Hawley--enjoy a good smoking gun every now and again.) The first came in the form of a February 28th email rejection from an articles editor at one of the elite law reviews in question. Gerber had submitted his article--the best article he has ever written (we're being serious this time)--the previous day, February 27th. Gerber followed up with a quick email inquiring whether the articles editor had actually read the 83-page submission that quickly. (To be blunt, we don't think it's possible to print the article as quickly as the law review editor rejected it.) Gerber never received an answer to his question.

A second smoking gun was uncovered two months later. After Gerber finally received a publication offer for his article, he did what any self-respecting (read: ambitious) law professor would do: he tried to trade up to a higher-ranked journal. (Law professors aren't the only folks who try to trade up. See, e.g., Olivia Goldsmith, The First Wives Club (1992)). One of the higher-ranked law reviews revealed in its email response--rejecting the article, of course--that it hadn't bothered to read Gerber's article prior to his request for an "expedited review" (the term the law review world attaches to requests that journal A read the article, in light of a publication offer from journal B). Other higher-ranked law reviews quickly acknowledged the same point, and several went so far as to mention that they had filled their entire volume without reading Gerber's submission. Most never got around to responding one way or the other to Gerber's request for an expedited review.

More evidence is available that calls into question the objectivity of the law review submission process, and it doesn't even require us to sing any more of Gerber's sad song. For example, one of our colleagues who is as smart as a whip, writes like a dream, and holds both a Ph.D. and a J.D. from top Ivy League institutions has been trying to publish what he considers the best article he has ever written for three successive law review submission cycles. Given how modest this particular colleague is--yes, legal academia does have a modest person or two hidden in its midst--we take him at his word with regard to the article's quality. Unfortunately, he has been unable to get a law review to offer to publish it. The last we heard about the status of our colleague's article was that he was planning on trying the peer-review route.

So what explains this sorry state of affairs? The answer is almost certainly the ranking of the law school at which the submitting professor is employed. Fortunately for Professor Ivy League, he teaches at one of the top law schools in the nation. Unfortunately for Gerber and our other colleague, they don't.

May we please borrow a box of Ivy League letterhead?

Elitism in Law Practice: The Truth is Stranger than Fiction

The above tale of woe is consistent with the experience of a colorful character in Scott Turow's novel Personal Injuries: If a lawyer has the "right" credentials, the world is his oyster. (Gerber apologizes for the cliché; Hawley doesn't.) One of the best-drawn characters in Kermit Roosevelt's novel In the Shadow of the Law, a recent Supreme Court clerk who doesn't appear to take anything seriously except his own pedigree, is insouciant about the matter: He actually admits to one of his law firm colleagues that he's simply killing time at the firm for a couple of years, before embarking on a career as a law professor. (In case you haven't noticed, Gerber reads a lot of novels, because no one seems to want to publish his law review articles. Hawley prefers to surf the web.)

As the saying goes, "the truth is stranger than fiction." (Yep, another cliché flows from our mighty pen.)

Elitism in the first-tier law firms is--as in legal academia--a circumstance before which parody stands mute. (Gerber is not mute, he thinks elitism is an outrage; Hawley, as beneficiary by association, thinks law firm elitism is fine.) True, such firms now recruit students with GPAs in the upper 20 percent of the law schools ranked in the top fifteen by U.S. News rankings. However, such slumming interferes not with the lust for Harvard or Yale graduates (especially Yale graduates, Harvard is too big and its admissions policies too indiscriminate).

For example, while Hawley's law firm might offer to hire three or four students from UVA (where Gerber went) or Duke (Hawley's alma mater) in a recruiting season, it would make offers to all of the dozen or more Yale students who interviewed (unless they signed up to interview by mistake and admitted to having no interest in working for the firm, ever). The top-tier law firms, meanwhile, reserve most of their recruiting Viagra for those who clerked for a U.S. Supreme Court justice. In addition to substantial bonuses (of tens of thousands of dollars per year), these elite judicial clerks are wooed with the promise that they will only work with a select group of the partners and associates (usually themselves former clerks) on the most interesting and high profile appellate, litigation, and corporate matters. These especially prized associates are thus sheltered from the more mundane work relegated to associates with undistinguished resumes (top 15 law school, top 20 percent of the class).

In a rare bow to candor, the best law firms actually keep the promises made to their most highly prized associate recruits. One might expect the most talented associates in a top Washington, D.C., law firm to be assigned significant responsibility in drafting of expert witness testimony, and defending and cross-examining such witnesses at trial. However, even this work is often performed by the "lunch pail" lawyers (those with neither a diploma from Yale nor a certificate of appreciation from a Supreme Court justice). The associates with the gold-plated resumes often devote the lion's share of their first few years to drafting appellate briefs or overseeing more junior associates. Most are also encouraged to rotate into mid-level federal government positions (such as the White House Counsel's Office, or the Solicitor General's Office). If they choose to return (instead of going into academia), they are put on the fast track to senior level responsibility for clients and billing, vaulting over the worker bees who stayed behind to do the chores--that is, maintaining client relationships, and developing substantially more client-counseling and courtroom litigation experience. These fast-tracked partners are frequently among those mentioned as being on the "short list" for prestigious federal courts of appeals positions, and even as long-term prospects for nomination to the Supreme Court. (Hawley is fine with that; Gerber is not, per his October 2005 column.)

So what accounts for the elitism in the large law firms? First, law firm bureaucrats can scarcely be expected to separate the wheat from the chaff based on mere merit. Instead, law firm management has identified objective measures--the most exclusive measure being a Yale degree or a coveted judicial clerkship--as predictors of future success.

Second, there's a natural tendency on the part of law firm management at the top law firms to breed clones. Because wealth, family connections, religion, and ethnicity no longer occupy the same role in the law firm reproductive process as they did in previous generations, the gold-plated resume must serve as the proxy indicator of future success.

Conclusion: "If it doesn't fit, you must acquit."

The end result of the overweening elitism in the legal profession is the elevation of tradition and uniformity over quality and creativity. Hawley prefers tradition and uniformity. (He's a closet monarchist.) But Gerber points to lawyers such as Judge Joe Brown, Greta Van Susteren, and Tim Russert--without a Yale or Harvard degree among them--to whom the doors of the upper echelon of law firm practice and law teaching are forever closed. Gerber regrets that they are relegated to peddling their wares as TV personalities. Hawley stopped worrying about it a long time ago.

Where's Johnnie Cochran (J.D., Loyola of Los Angeles) when the profession needs him most?

Scott Gerber is an associate professor of law and Kevin Hawley is a distinguished practitioner in residence at Ohio Northern University Pettit College of Law. Gerber lets Hawley win on the golf course, although Hawley thinks he wins because he's better than Gerber.

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