Legal Commentary

Given that U.S. News & World Report rankings are probably going to loom large in the minds of applicants, alumni, and some employers no matter what, I?m hopeful that Jason Solomon, Dave Fagundes & co. will succeed in their ?Race to the Top? project ? so that when law schools predictably work to climb as high as possible in the rankings, they?ll have added incentive to improve their educational quality (in those respects that the project can measure). 

But in an ideal world, I think that a ?Race to the Top? project would be more useful as an entirely independent ranking system ? because when its educational quality rankings are folded into the US News & World Report rankings, they?ll be folded into rankings that have little to do with, and make it harder to assess, educational quality.

To the extent the current U.S. News & World Report rankings serve a function, I think their function is more akin to that of what Thomas Schelling described (in The Strategy of Conflict) as a ?focal point? in situations where people who can?t easily communicate can coordinate their actions.  Schelling explains this concept with the aid of following scenario:  Imagine ?[y]ou are to meet somebody in New York City.  You have not been instructed where to meet; and you cannot communicate with each other.  You are simply told you will have to guess where to meet and that he is being told the same things and that you will just have to make your guesses coincide.?  People can coordinate their actions with such guesses, Schelling explains, if they have ?some focal point for each person?s expectation.?  It seems to me that the key role rankings play for law school applicants and employers is to structure their guesses in this way:  Law school applicants might rationally take the rankings into account not because they believe these rankings reflect educational quality (or any other inherent quality of the institution), but rather because they understandably often try to make predictions about where desirable employers will do their most intensive recruiting.  Likewise, to the extent they care about the kinds of conversations they?ll have with their law classmates from day to day, they?ll have to guess where the best conversation and debating partners among their fellow applicants will choose to go (and many of the comments to Jason Solomon?s posts a few weeks back emphasized that this aspect of legal education was often as important, if not more important, than in-class discussion).

If that?s right, law professors and law classes may be a whole lot less important to the current uses of school rankings than some of us might like to think we are:  After all, a focal point ? for example, a prominent structure, like the Empire State Building in New York City -- is important in Schelling?s example not because of what it is, but solely because of the people its prominence attracts.  The people in Schelling?s scenario would be just as happy with another focal point that would bring them together, like the Central Park carousel or the Washington Square Arch, since what matters to them is not where they are, but only that the other person is likely to be there.  Law students might similarly find it rational to go to Yale, Harvard, Chicago or the highest-ranking school they can get even if they for some reason decided that the educational quality at those schools is worse than lower-ranked schools (perhaps just worse for them, given the type of classes they find most engaging or the type of tests they perform best in).

For those top-scoring law applicants (and prominent law firms) looking to find each other, it?s possible that educational quality will provide a useful focal point.  But that seems unlikely to me, given that the educational quality of an institution is a hard thing to measure or rank and that the basic curriculum doesn?t vary much from law school to law school.   It makes more sense to use a measure like reputation as measured in peer surveys which, to a far greater extent than educational approach or some measure of the value students get from courses, is both easier to quantify and (as this recent post on Brian Leiter's Law School Reports makes plain) tends to remain stable from year to year.   In fact, even an arbitrary ranking system ? like one that ordered schools with a system analogous to Willie Wonka?s Golden Ticket contest ? might help provide guidance so long as it lets everyone know what others will do.

It?s also conceivable, in this day and age, that instead of trying to simply guess where other applicants and desirable employers will be heading, existing applicants might try to communicate with others and coordinate their actions in a more detailed way ahead of their decision.  Perhaps, instead of just focusing on the usual suspects, those applicants with a 180 LSAT might set up a space on Facebook, My Space, or their own Web site, engage in some collective priority-setting there, and then commit to go, as a group, to the law school that makes them the best offer (letting prospective employers know to seek them out there).  That probably won?t be happening any time soon.  But if it did, it might also provide us with some information on how much importance the ?value added? component of a law school education really has for applicants and prospective employers. If, for example, the top applicants decided to choose the newly-established American Law School on the French Riviera over Harvard, Yale, and Stanford and prominent law firms then worked hard to hire them from there in spite of a shared sense that students learn less about law and lawyering in that new (still non-existent) school, that might be a hint that ?value added? is a whole lot less important to major actors in the legal market than the talents that law school students bring with them to law school. (This might be the case, not because law school education is irrelevant or unimportant to being a lawyer, but rather because ? if students are likely to get roughly the same ?value added? from law school education regardless of where they go, it is other differences between them ? and not the differences in the education they receive ? that will likely be of most significance for them and their future employers).

I?m not saying that law school applicants are ? or should be ? entirely indifferent to educational quality or to differences in approach between one law school and another.  Nor should they (or are they) likely to be entirely indifferent to the contributions that a particular institution?s faculty have made in the realm of scholarship or policy-making.  But I?d be very surprised if these factors were anywhere near as important for law school applicants as they are for graduate school applicants in the Arts and Sciences (who will often choose to study in a particular department because they want particular faculty members on their dissertation committees).

That said, I think law schools and law professors should still care deeply about the quality of their curriculum design and teaching and to the extent the ?Race to the Top? gives them more incentive to do so, I?m all for it.  But it seems to me (a) that the project would do well to make its educational quality rankings available in a form where it isn?t combined with the many other measures in U.S. News & World Report that have nothing to with educational quality (including reputation scores from respondents who don?t take the time to analyze educational quality) and (b) that it would also do well, given the difficulty of measuring and ranking some aspects of educational quality, to create a forum that might help faculty, students, and those applicants who are interested obtain purely qualitative information about what separates one law school?s approach, or performance, from another where scoring and ranking are impossible.