Legal Education and Rankings: A Role for the AALS?
© Paulo Barrozo
What is happening
American law schools are on the verge of a transformation unseen in half a century. In news only astonishing because of the preceding three decades of timorous conformity, Harvard and Yale law schools announced that they were ceasing cooperation with the law schools ranking produced by U.S. News and World, a business enterprise headquartered in Washington, D.C.
In the days and weeks after Harvard’s and Yale’s announcements, several other prestigious law schools in the country joined them: Stanford, Columbia, Georgetown, and Berkeley among them. Chicago did not, and it seems that it will not. Initially, less prestigious schools vacillated about joining this movement, another evidence of the structure of incentives around rankings. Today, while some schools still wait for a variety of reasons, the list of those that ceased cooperation with the rankings is in the dozens.
Dean Martinez of Stanford wrote that the law school rankings “distort incentives in ways that are harmful to legal education as a whole.” Yale’s Dean Gerken stated that “we have reached a point where the rankings process is undermining the core commitments of the legal profession.” Dean Manning of Harvard also recognized the harm of rankings, writing that “rankings can also emphasize characteristics that potentially mislead those who rely on them and can create perverse incentives that influence schools’ decisions in ways that undercut student choice and harm the interests of potential students.” They are right.
Rankings are not a benign exercise of providing information for applicants. Rather, rankings metrics shape behavior. In other words, that to which rankings attribute a positive weight will in time overgrow at the expense of whatever stands in the way. The results for law schools have been deeply damaging to both spine and brain.
Remarkably if one considers the intellectual talent and social capital of law schools, rankings create collective action problems for ranked participants and drive the decision-making of faculty and their administrative agents in a race to the bottom of scholarly excellence and of demographic diversity. Once, the faculty of a fine law school spent considerable time in a meeting discussing whether snow cleaning costs should be shifted from the expenditure ledger of the university to that of the law school in order to enhance the per capita expenditure of the latter, a factor in the rankings. This probably holds the world-record for mismatch of talent time and subject matter intrinsic importance.
But there is more. Crucially to the centuries-old ideal of the university, rankings collapse the distinction between quality and prestige. A distinction essential to the health of societies.
Prestige assignment in societies is a complex, multicausal mechanism. In contrast, prestige signaling is simple and efficient. Indeed, relevant actors with minimum information have no difficulty in decoding the prestige signs in force in their societies. In the context of legal academia, for example, minimally informed students and faculty offered positions at Harvard or Yale will accept those positions over positions elsewhere. The statistical preponderance in question is overwhelming. Prestige alone accounts for that, as the consideration of other important factors would weaken this level of statistical prevalence. Change the countries and the phenomenon, with some local flavor, repeats: Cambridge and Oxford for the U.K.; University of Chile and PUC for Chile; Tokyo for Japan; Rio de Janeiro and Sao Paulo for Brazil; Munich and Heidelberg for Germany; etc.
While prestige is tough to engineer but easy to detect, academic quality inverts this equation. There is no mystery about what academic excellence is and how to achieve it. On the other hand, the path to make academic excellence broadly known and translatable into prestige is very narrow and sinuous.
Ask the capable experts in a given area where the best scholarship in their field comes from. The resulting list will perhaps substantially but certainly only partially overlap with the list of the most prestigious institutions. However, ceteris paribus, in the long-term quality and prestige tend toward convergence primarily through the mechanism of preference in faculty and student recruitment. Thus, after approximately 130 years of existence of serious legal academia in the U.S., the convergence between prestige and quality should be complete by now. But it is not.
Several factors account for that. Let me mention two. First, quantity. There are only so many faculty and student positions available at any given time at the most prestigious schools. The pool of talent is deeper than they can accommodate. Second, fashion in intellectual and admissions standards has a much firmer grip over faculty and student recruitment than scholarly caliber. Combined, numbers and vogue constantly create a sufficient incongruity between quality and prestige. That is where rankings step in. They seek to artificially close the gap between prestige and quality. In the process, prestige is reaffirmed, scholarly and educational quality sacrificed.
For all the above reasons, in my view legal scholars should all feel fortunate that Harvard and Yale have found the light. Furthermore, if you agree with me that there is a connection between what goes on in legal education and what the chances are for the long-term viability of constitutional orders, you will probably also agree that everyone in the U.S. should feel hopeful about the recent developments. If law schools fail, they put at risk the cultivation of the kinds of agents and the forms of thought required for the promotion of order, democratic self-governance, justice, and the rule of law.
A role for the AALS?
The belated revolt of law schools against rankings is thus a very positive development, opening the opportunity for a transformation of what law schools do and how they operate. If this moment is seized, it may signal the start of a golden age for legal scholarship and education.
In comparative terms, this century’s legal scholarship and education is already a favored academic field. First, at no other time or place has it been better overall than it has the potential to be in today’s United States. Second, legal scholarship is not rocket science—it is harder. Consequently, legal scholarship and education are seriously challenging, demanding, and exciting intellectual endeavors. Third, law schools select faculty and students from among the best intellectual and entrepreneurial talents of each generation. These are typically people holding high aspirations for themselves, the world of ideas, and their societies. Fourth, in law school, gifted and ambitious individuals encounter a well-funded field of study.
However positive this moment of emancipation from rankings promises to be, without more it is not enough to usher us into the golden age of legal education. Generally speaking, for that to happen law schools need, among other things, to join en masse the standards and procedures of the modern research university. But that is too unwieldy a topic for this occasion. Instead, let me focus on one risk which materialization would foreclose the path to that golden age: the revival of rankings. The risk is real. Society is addicted to rankings, and unless preempted in important ways, they will resurge. But if we counter this one risk well, we may in the process also make important progress on the larger objective of bringing law schools in line with the standards of the modern university.
To prevent the restoration of rankings, a heretofore missing natural leader should step in: The Association of American Law Schools. A non-profit with 176 members, the AALS reviews its members every 10 years, in a process that includes site visits. Unlike what many suspect sometimes happens with data provided by law schools to ranking businesses, AALS members fabricate data given to the Association only at great peril to themselves.
In sum, people look at rankings in part because they believe them to be informative, and in the era of indicators they seem to be culturally irresistible. In fact, for too many rankings are an obsession. Bearing this in mind, the AALS should preempt, occupying a sizeable part of the space of rankings. The first step would be for it to create its own assessment of member law schools.
Here is what the AALS should do
The AALS assessment would promote standards specifically designed to capture the quality of law schools’ contributions both to the grand, diverse, and ever-expanding traditions of legal knowledge and to the education of scholars and lawyers. Call this the Legal Education Peer Quality Assessment. Once created, law school members of the AALS, in a collective action turn of the tables, would provide data only to the Legal Education Peer Quality Assessment, in addition to any legally mandated disclosures.
Instead of placing law school in an ordering hierarchy of winners and losers, the Legal Education Peer Quality Assessment would work with the notion of tiers. Tiers are designed to declare how each school fares in light of absolute standards while dispensing with competition. Thus, Tier 1 law schools would represent our reflected judgment about what makes for greatness in legal scholarship and education. As those factors remain sufficiently stable over time, schools falling short of them would have a clear sense of what to work on for improvement, without the current hamster-wheel they commit to when they embrace rankings.
The Assessment would have only, let us say, five tiers plus the new-school tier, and each law school would initially be placed in one of them. In their 10-year review each law school would have their tier assignment confirmed or modified.
There would be no maximum or minimum number of schools in each tier. Ideally – and I think also realistically – there would be no reason why over time all law schools would not end up in the first to third tiers, plus any in the new-school tier.
The AALS Assessment would reflect the highest standards of independence, insulation from market pressures, integrity, and knowledge.
Conscious that metrics and standards grow that which they value, the Assessment would measure only aspects we have good reason to wish to see thrive and that attract no unacceptable, all relevant things considered, perverse incentives. The Assessment would be oriented by the distinction between quality and prestige, becoming an independent guardian of their shared border. Only that now that border would no longer be dependent on numbers and vogue but on the truth of the distinction they draw.
Much thought would go into what aspects of legal academia should count toward recognizing their quality. This may serve as a tentative list:
- Formal faculty academic and research credentials.
- The quality of faculty scholarship.
- The depth and range or the elected focus of the curriculum and the adequacy of the delivery pedagogy.
- The existence and caliber of advanced research degrees and post-doctoral research opportunities.
- The extent to which library physical and digital holdings and research assistance meet the needs of student formation and advanced research.
- The suitability of law school campuses.
Perhaps the AALS instead of capitulation should denounce as a matter of principle all efforts at ranking its members. Maybe the members themselves would think that their association should not be ranking them. Otherwise, there might be some antitrust consideration undermining the entire idea?