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A failure of the elites

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Atrios asks below:

Would like your take on the problem with discussions of this sort being (almost) entirely dominated by people who attended relatively elite institutions and therefore have little real understanding of the question actually being asked.

Here’s a passage from a draft article I’m working on, regarding the stigmatization of recent and not so recent law graduates who are unable to become, in Goffman’s terminology, “normals.” The passage is part of a discussion of why legal academia has been so slow to recognize the crisis which has been building in the legal profession, and our own role in it (The second block quote is from a regular LGM commenter):

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Perhaps the most remarkable feature of this system, given that at least in theory the main reason law schools exist is to train people to practice law, is that having a significant amount of practice experience as an attorney is, all things being equal, considered a negative factor in the evaluation of faculty candidates. This is attested to both by data which show that more practice experience correlates negatively with faculty hiring as one moves up the legal academic hierarchy (in other words, the more desirable a job is, the more of a demerit actually having practiced law becomes for aspiring law professors), and by the candid admissions of law faculty themselves. Here is a law professor’s description of what is considered an ideal legal practice background – what he terms “the classic resume” –for an entry-level tenure track hire. (Based on my own involvement in faculty hiring over the past 23 years I would say this description is quite accurate, although in recent years even less emphasis has been put on any practice experience, in favor of academic training in other disciplines):

A couple of years of practice experience, often at one of the top firms in New York, D.C., Chicago, L.A., or San Francisco. Some firms, such as Covington & Burling in D.C., Cleary Gottlieb in New York, Ropes and Gray in Boston, and Gibson Dunn in Los Angeles, have a reputation for producing law teachers. Alternatively, practice experience can be with a high profile government agency like the SEC, EPA, or the Department of Justice, or with a U.S. Attorney’s or federal public defender’s office (a few state agencies, like the Manhattan D.A. and the Public Defender Service in Washington D.C., satisfy this requirement). You don’t want to have too much practice experience, though. (Emphasis supplied).

A lawyer working for a small law firm provides a pungent critique of the limited perspective this sort of background tends to foster:

Academics tend to miss the sheer drudgery and asswork involved in being a lawyer; the only reason people do it is because they believed at one point they’d be millionaires. If you are reasonably likely to make as much money being a nurse, no one will go to law school. I don’t know why so many reformers think there’s a bunch of potential lawyers in Los Angeles waiting in the wings to get yelled at by judges for $60k a year – their entire career

Even the academics that practiced for [any length of] time tended to have surprisingly, uh, delicate careers; I don’t think many of them were hired to handle appearances day after day. Being an attorney is pure ass, and the only reason people do it is the idea of riches. A lot of attorneys don’t get to riches, but if you’re 45, w/ 20 years in on your job, you don’t have a lot of choice.

A third factor contributes greatly to the gap between the virtual social identities of American lawyers as these are represented to students in law school classrooms, and the actual social identities acquired by lawyers and law graduates: most law professors are drawn from a very narrow slice of legal academia. For example, a study of entry-level tenure-track hires between 2003 and 2007 found that, out of 466 hires, 40.1% came from just two schools: Harvard and Yale (85.6% came from a total of 12 schools). And this effect becomes much more extreme the higher one goes in the legal academic hierarchy. It would be an understatement to say the faculty at Yale Law School, which on a per capita basis produces the most legal academics teaching in American law schools by an enormous margin, is dominated by graduates of Yale and Harvard Law Schools: 39 of 47 tenure-track non-clinical faculty who have their initial law degrees from American law schools received them from these two schools. This hiring pattern is even stronger at Harvard, where 71 of 81 tenure-track faculty with initial law degrees from an American law school received them from either Harvard or Yale.

Indeed, it would be accurate to say that the typical American law professor is someone who graduated from either Yale’s or Harvard’s law school, where he or she was taught by a faculty that was made up almost entirely of graduates of those two schools, before going on to spend a very short time in the kind of elite legal job in which the vast majority of the graduates of hyper-elite law schools spend at least the first few years of their careers after their graduation. And that professor almost certainly acquired that job at a time when legal jobs of all types were far easier to acquire than they are today.

This is not a prescription for developing a legal professoriate that has any experience with, or genuine understanding of, the kinds of legal and (increasingly) non-legal careers that the vast majority of law graduates go on to have. It is hardly surprising that law professors end up presenting their students with a vision of what it means to be a lawyer that often bears little or no relation to the actual legal careers or non-careers that those students will experience.

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