Legal Academia and the Blindness of the Elites

Article excerpt

The Harvard Federalist Society hosted a conference on diversity in the legal academy in the spring of 2013. The premise of this conference was that there ought to be more intellectual diversity on the faculties of America's law schools. While there are numerous ways of defining "intellectual diversity," one form of intellectual diversity tends to be overlooked: diversity of academic and professional backgrounds on a school's faculty.

In one particular respect, the faculty hiring practices of America's most elite law schools are highly unusual. Much of American academia observes a strong informal norm that programs ought to avoid "hiring their own'--that is, someone who has received an advanced degree from a graduate program will usually not be considered for a position on that faculty, or at least not until the graduate has established an academic career at another institution. (1)

This norm is a product of the assumption that, at least in regard to intellectual diversity, institutions should fight against the tendency to replicate themselves. It would be an understatement to say this norm has had little influence on the hiring practices of the Harvard and Yale Law Schools in regard to their own faculties. And Harvard's and Yale's hiring practices appear to have had a ripple effect on hiring practices through legal academia as a whole. (2) These trends are, especially under present conditions, significant.

The American legal academy is strikingly monolithic with respect to diversity of academic and professional backgrounds. Consider the following statistics:

* Of the forty-seven current non-clinical tenure-track members of the Yale Law School faculty who have their initial law degree from an American law school thirty-nine received that degree from either Yale or Harvard. (3)

* Of the eighty-one current non-clinical tenure-track members of the Harvard Law School faculty who have their initial law degree from an American law school, seventy-one received that degree from either Harvard or Yale. (4)

* A recent survey found that, among the 486 entry-level tenure-track hires made by ABA-accredited law schools between 2003 and 2007, 38.5% of those hires had a J.D. degree from either Harvard or Yale. The survey also found that 85.6% of new hires received their J.D. degrees from one of a total of twelve elite law schools. (5)

* A 2003 study found that the average amount of experience in the practice of law among new hires at top twenty-five law schools, among those hires who had any such experience, was 1.4 years. (6)

* A new study of the top twenty-six law school faculties reveals that those faculties include sixty-six tenure-track faculty members who do not have law degrees. (7)

* Even a cursory examination of the resumes of the tenure-track faculty at American law schools, and especially at highly-ranked schools, reveals that what little practice experience faculty have tends to be limited to a very narrow sector of the profession--either associate work at a large law firm, or work for a government agency, usually for the federal government.

* The large majority of tenured faculty at American law schools are over fifty years old, and graduated from law school prior to 1990. (8)

Should we even care about this type of intellectual diversity?

Several scholars at the aforementioned conference emphasized both the theoretical and practical value to students of being taught by faculty who represent a wide range of backgrounds and views.9 In addition to diversity of opinion, an appropriately diverse faculty should include a sufficient number of tenured faculty who have a real connection to, and experience with, those areas of the legal profession in which typical graduates of the school are likely to find themselves practicing, or trying to practice, law.

The statistics quoted above indicate that, at most American law schools, a strong plurality of the faculty are graduates of the law schools at the nation's two most elite universities, while the law faculties at those two universities are themselves overwhelmingly dominated by graduates of those two schools. …