Legal Commentary

A Great Law School Dean Doesn?t Have to be a Great Scholar

By Ilya Somin

Conservative blogger Paul Mirengoff and liberal law professor Paul Campos argue that Elena Kagan is poorly qualified for the Supreme Court because of what they argue is a weak record of scholarship. Mirengoff expresses incredulity that ?you could publish so little and still become the dean of a major law school.? 

I have a higher opinion of Kagan?s scholarship than Campos and Mirengoff. Still, I agree that she?s not one of the very top scholars in her field. But Kagan?s greatest accomplishment is not her scholarship but her record as Dean of Harvard Law School. The real flaw in Campos? and Mirengoff?s argument is the implicit assumption that being an outstanding dean requires you to be an outstanding scholar. It doesn?t. 

The job of dean is primarily managerial and political. The dean has to manage the faculty and staff, maintain good relations with the university, and raise money. He or she must be a good judge of others? scholarship, since she plays a key role in faculty appointments. But she doesn?t have to be an outstanding scholar herself. As Campos concedes, most deans don?t do much in the way of scholarship anyway, perhaps because they rarely have the time. 

I have previously compared effective law school administration and hiring to the growth of Moneyball strategies in baseball (e.g. here and here). Billy Beane?s effective use of Moneyball strategies as general manager of the small-market Oakland contains many lessons for academic institutions, ones which we have exploited at George Mason Law School. One such lesson comes from Beane?s own background. Many baseball pundits used to think that to be a successful major league executive or manager, it was important to be a good player. Beane, however, was the greatest executive of his generation even though he was (by major league standards) a terrible player. Indeed, as Michael Lewis explains in Moneyball, major league teams? overestimation of Beane?s own talent was one of the factors that convinced him that new measures of talent were needed. As Paul Caron and Rafael Gely explained in this article, this lesson applies to the hiring of academic administrators too. The skills of a good administrator are very different from those of a good scholar. A reclusive, difficult to get along with person, can be an outstanding scholar, but would be a disaster as an administrator. Contrariwise, a skilled manager and politician who is not an original thinker would make a poor scholar. But so long as he values and recognizes original thought in others, he could be an excellent dean.

To return to the case of Kagan, there is little doubt that she was an excellent dean. She successfully hired numerous top scholars in many subfields, and from across the political spectrum. Under her tenure, Harvard arguably managed to surpass Yale and Chicago as the law school with the most productive faculty (I say this despite the fact that I?m a Yale Law grad, and a longtime admirer of Chicago). At the very least, she did a great deal to regain the ground that Harvard lost to its rivals in the 1980s and 90s. 

She did this in part by pushing for the hiring of top conservative scholars like Jack Goldsmith and John Manning. In a hiring market characterized by a degree of hostility to non-leftwingers, productive right of center scholars were an undervalued asset similar to the undervalued high-OPS hitters that Beane relied on in his early years with the A?s. More generally, Kagan fostered by word and deed an atmosphere of openness and ideological tolerance at a a school that previously wasn?t exactly well known for either. She deserves special credit for achieving all this at an institution with a famously difficult to manage faculty and at a time of harsh ideological conflict in society as a whole. 

I wouldn?t go so far as to say that Kagan was the Billy Beane of legal academia. Harvard has far more resources relative to its rivals than the Oakland A?s do. Kagan is perhaps more analogous to Boston Red Sox GM Theo Epstein, who won two world series by using moneyball methods at a franchise with much greater resources than the A?s (though still much less than the rival Yankees). Kagan is also, in my view, a much better scholar than Beane was a baseball player. Both, however, had their greatest success as executives.

In sum, Kagan?s record as dean is highly impressive, and it is not undermined by her relatively lesser success as a scholar. Whether that record justifies an appointment to the Supreme Court (which requires skills somewhat different from either a dean or a scholar) is a different question.

Full post as published by The Volokh Conspiracy on May 07, 2010 (boomark / email).