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A Foucauldian View of Law School Rankings

By Jack M. Balkin

Sociologists Michael Sauder and Wendy Nelson Espeland (NE&S) recently published an insightful article on the disciplinary function of law school rankings. They apply both Foucauldian and organizational theory to "unpack the power and influence of rankings as a peculiar type of environmental pressure." They conclude:

[that r]ankings simultaneously seduce and coerce, and . . . [the fact that] this complex interplay of co-optation and resistance is conducted in the bland language of numbers makes it all the more compelling. At schools with improving rankings, even critics may find it hard to avoid a flush of pride, along with relief and anxiety about next year. The allure of rankings may be subtle, but it shapes resistance while securing the engagement of critics and supporters alike.

NE&S document several responses to the culture of rankings. Given some recent work I've been doing on trade secret protection for ranking algorithms, I found their description of a dialectical "gaming/surveillance" dynamic particularly interesting:

?Gaming? is one example of how resistance extends discipline by restructuring relations both among law schools and between law schools and the rankings. We define gaming as cynical efforts to manipulate the rankings data without addressing the underlying condition that is the target of measurement. [For example,] some schools encourage underqualified applicants to apply to boost their selectivity statistics, ?skim? top students from other local schools to keep entering first-year cohorts small[, etc].

Such gaming strategies prompted USN to change its methodology and reporting, develop more explicit rules about how to measure rankings criteria, and monitor information more closely. The result, predictably, is a more precise and stringent discipline and more ingenious forms of gaming.

NE&S's work also suggests a reason why there are so many dean searches presently. A law school dean is under great pressure to improve her or his school's ranking, but "administrators? ability to manage them is limited. Work that demands responsibility without control is especially stressful."

NE&S deserve commendation for their exhaustive empirical work:

Along with open-ended interviews of law school personnel (described below), we conducted 92 brief interviews with prospective law students, visited seven law schools, observed and participated in professional meetings and conferences, analyzed 15 years of admissions and yield statistics (Sauder and Lancaster 2006), monitored online bulletin boards for prospective law students weekly for an entire admissions cycle, and analyzed the content of Web sites, newspaper stories, and organizational documents (including strategic plans, marketing plans, promotional brochures, and internal memoranda). To identify distinctive effects on law schools, we interviewed 35 business and dental school administrators (Sauder and Espeland 2006) and reanalyzed evidence from two other research projects. . .

While law school rankings may seem insignificant in the grand scheme of things, I think they are well woth studying for their implications in many other realms of life. I used scholarship on the topic to critique the practices of search engines in my piece Rankings, Reductionism, and Responsibility. McKenzie Wark's fascinating book Gamer Theory (published both by Harv. U.P. and online here) extrapolates the condition of video gaming to the world at large:

The whole of life appears as a vast accumulation of commodities and spectacles, of things wrapped in images and images sold as things. But how are these images and things organized, and what role do they call for anyone and everyone to adopt towards them? . . .

Everything has value only when ranked against another; everyone has value only when ranked against another. . . The real world appears as a video arcadia divided into many and varied games. Work is a rat race. Politics is a horse race. The economy is a casino. . . . Games are no longer a pastime, outside or alongside of life. They are now the very form of life, and death, and time, itself. . . . You are a gamer whether you like it or not, now that we all live in a gamespace that is everywhere and nowhere.

As network power accumulates behind certain ranking systems, platforms, languages, and methodologies, individuals are both "forced and free" to accept them. The collective freedom manifest in coordination and political action could perhaps enable us to develop a rankings system that better accommodated the diversity of law school aims and missions. But it's a safer bet that the disciplinary powers now shaping law schools will eventually reach down to shape the careers of lawyers themselves. Doctors appear much better able to influence the rankings systems developing in their field than lawyers have been.

Cross-posted at Concurring Opinions.

Full post as published by Balkinization on March 13, 2009 (boomark / email).