Thursday, January 19, 2006

Where Is Harvard?

Courtesy of

Fred Shapiro of Yale Law School has kindly allowed me to reproduce the following question which he posted to a constitutional law professors' mailing list a few days ago:

I apologize for diverting attention from the very important substantive discussion of the Alito hearings with a question about the sociology of legal scholarship that may be too much elite-law-school-inside-baseball for many on this list, but here goes:

I notice that the New York Times "News Analysis" about the hearings this morning quotes Cass Sunstein of Chicago, Jack Balkin of Yale, Vikram Amar of Hastings, Mark Tushnet of Georgetown, John Yoo of Berkeley, Noah Feldman of NYU, Douglas Kmiec of Pepperdine, Judith Resnik of Yale. It strikes me that no one from Harvard Law School is quoted, reminding me that I recently compiled data for a list of the most-cited law review articles of the last 10 years and found that Harvard Law School faculty figured on the list only minimally. I also found that none of the seven most-cited articles from that period were published in the Harvard Law Review, which has dominated all previous most-cited lists.

So I am wondering whether Harvard Law School may have in recent years dropped off the intellectual map of legal scholarship relative to its past position of great prominence? Does this ring true subjectively with any students of legal scholarship? (I realize that Harvard Law School may still kick ass in other aspects of its mission, such as training leaders of the bar or future Supreme Court justices or influencing the corporate world or influencing elites in foreign countries.)

There's more; read the whole posting. Among the comments:

I have intimate knowledge on the functioning of HLS; we'll leave it at that.

HLS has become too obsessed with its own dominance of the endowment race to effectively provide any service to the legal community. On a student level, the school exists to staff the Amlaw 100, with only a handful entering jobs with any connection to the public interest (including government jobs, which students are told to enter not for service, but as political ladders or experience before movement to private regulatory practice).

HLS further provides minimal support to public interest or academic or government minded students; in fact, in the past year HLS decided to (1) whine about financial difficulty to HLS while increasing tuition several thousand dollars (2) reneg on promises to students entering the military that the cost of their living in the barricks would not be considered "income" that would reduce future loan forgiveness and (3) explicitly rejected the idea of using legal scholarship to determine tenure, instead preferring arbitrary political "balance." As one student told me, "it's really easy if you're going to a big firm, but if you try something else, they turn on you."

Outside the Amlaw 100, HLS barely exists, which is surprising for a school of such a bloated size. Sure, Eliot Spitzer is HLS -- and so are the hundreds upon hundreds of Wachtell, Cravath, and Skadden lawyers he opposes every day. HLS has minimal enrollment and involvement in the plaintiffs, civil rights, technology, and international bars. There are a few superstar, publicly minded HLS grads who contribute, for better or worse, to their society, like Eliot Spitzer and Barrack Obama. But most of the big names -- Lawrence Tribe, Alan Dershowitz -- are known more for their neutrality on the important issues of the day (Tribe refused to finish his own ConLaw book!) than for particularly original thinking. Students go ga-ga for Cass Sunstein and Federal Judges go ga-ga for Chermerinsky; can you name a single HLS professor or administrator whose word on any issue would make any other intellectual take pause? So, Posner was top of his class at HLS. Does anyone believe he's contributed anything new to the field in the past few years, except for run-of-the-mill pop economics? And yet he introduced the last issue of the Harvard L. Rev. Pathetic.

The reasons for this are multivariate, but boil down to a few problems:
(1) Harvard University's horrific bureaucratic structure, which can turn even the best intentioned and most competent of people into evil drones. E.g., a single "dean" runs the academics and social life for the 1500+ HLS students. That's impossible. Period.
(2) The arrogance of power, which has lead HLS to value that at which it is good, which is having a large endowment. And they spend the money on... ice skating rinks and free coffee. That's nice -- how about reducing the >$180,000 debt load so students can do something other than AmLaw 100?
(3) The conservatism of the top, which has lead HLS to not take "risks" by encouraging its professors only to espouse boring, highly technical opinions on the issues of the day. When's the last time you heard a HLS professor say something that did not reflect a calculated guess of the status quo?
(4) The fact that there are very few selective pressures in its world. AmLaw 100 is more than happy to chew through hundreds of HLS students every year, even as studies (see Adam Smith, Esq. for more) show time and time again that the "leverage" model of law firm management is not the most profitable. Outside of that, it is extremely difficult for any student to turn down HLS, once of course YLS has turned them down. So HLS every year swallows up 500 top applicants and walks them down the beaten path of AmLaw 100; whaddyagonnado, turn down Hah-vahd?

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