Friday, September 01, 2006

Supreme Court clerkships and law teaching

Supreme CourtLinda Greenhouse's recent New York Times on the relative scarcity of female Supreme Court clerks, to say the least, has caused quite a stir among lawyers and law professors. The Greenhouse article extends an inquiry begun earlier this summer by Feminist Law Professors, Prettier Than Napoleon, and the Volokh Conspiracy. After the publication of the Greenhouse article, the Georgetown Law Faculty Blog, SCOTUSblog, Sentencing Law and Policy, the Volokh Conspiracy (again), and WSJ Law Blog have all entered the fray. Prettier Than Napoleon helpfully reminds us that Wikipedia's list of Supreme Court clerks should enable a curious empiricist to test the many hypotheses that are now swirling around the issue.

True to its mission, MoneyLaw will now make an observation or two -- strictly on the academic worth of the Supreme Court clerkship. The question of balance among men and women in this elite corps will wait.

The Supreme Court clerkship remains the most elite credential available to an American lawyer. Law firms are willing to pay substantial bonuses to associates who bring the experience or perhaps just the cachet to work. But to what extent does a Supreme Court clerkship predict success in legal academia?

Billy BeaneI strongly suspect that the Supreme Court clerkship, in the mind of a MoneyLaw-minded academic talent scout, has become the law school equivalent of the 270-foot dash that Billy Beane won when he entered the baseball draft. The story is vividly recounted in Michael Lewis's Moneyball.

The 270-foot dash measures raw speed, specifically over the maximum distance that a baseball player is likely to run on an ordinary play. It's nice to be that fast, and speed over 270 feet translates into more triples and more reliable scoring from first base on doubles hit by a player's teammates. On even rarer occasions, speed over 270 feet means scoring from first off a single (in a play most famously associated with Enos Slaughter). The related skill of covering 360 feet with extreme celerity raises the probability, however slightly, of the inside-the-park home run.

But these baseball plays are spectacular precisely because they are rare. As a result, the 270-foot dash measures something that is probably more salient in the mind of the talent scout than it is relevant to the business of trading runs for outs. Billy Beane finished his major league career with more strikeouts than hits (80 to 66) and a woeful OPS of .546. OPS, by the way, stands for On-base percentage Plus Slugging percentage. Baseball traditionalists will more readily understand Billy Beane's lifetime .219 batting average, dangerously close to the Mendoza line and flatly unacceptable for an outfielder. It was no fluke; Billy took the better part of six seasons to compile this wretched record.

If the foregoing is sabermetric gibberish to you, no amount of linking now will help you. Perhaps I shall explain in a future MoneyLaw post. Suffice it for the moment to observed that Billy Beane, first-round bonus baby, winner of the 270-foot dash at his combine, basically ... pardonnez-moi, je cherche le mot juste en français ... sucked.

This is not to suggest that the Supreme Court clerkship should be devalued altogether as an academic credential. Nor would I conclude that the clerkship hangs like an albatross around the neck of a law professor so unfortunate as to have spent a year of her or (more likely) his life working at 1 First Street N.E., Washington, DC 20543. Like any other factor that correlates only weakly, if at all, with ultimate success, the 270-foot dash, the Supreme Court clerkship, the newly fashionable brand name Pee-Aitch-Dee, and other rough guides to future performance are just that: rough guides. For every Billy Beane, there are other first-round draft picks whose careers have resembed that of B.J. Surhoff (overpaid mediocrity), Chipper Jones (marginal Hall of Fame candidate), or Alex Rodriguez (probable Hall-of-Famer, barring injury). So it is in law and law teaching. Predicting 40 years of productivity on the basis of an individual's appeal to a Supreme Court Justice at the age of 27 or 28 is at best a perilous pursuit.

4 Comments:

Blogger Lori Ringhand said...

I've got nothing to say about baseball, but I do have some thoughts about the female clerk situation. ... Until time proves otherwise, I am inclined to accept Justice Breyer's statement that this year's dip in the number of female clerks is probably a random variation. I therefore have been much more troubled by the response to this story than to the story itself. Two things in particular disturb me. First, several commentators have cited this as yet another example of young women "opting out" of high pressure, high profile jobs. Oh really? Go tell the thousands of women starting this fall as first year associates in large law firms across the country that they are making any such choice. Are we really to believe these women would not have preferred spending the year as a Supreme Court Clerk? Second, the ubiquitous chatter about how women aren't graduating at the top of the top law schools, aren't the EIC's of the top law reviews, etc., implicitly accepts that there is some objective standard of "merit" that these women aren't meeting. Again, really? Look at Brian Leiter's data of Supreme Court Clerkship Placements. Were the three clerks who graduated at or near the top of their class from the University of Kansas more objectively qualified than the woman who graduated 10th in her class from Harvard? What about the three BYU clerks - were they more qualified than someone who was an articles editor rather than an EIC at Harvard? Maybe, maybe not (I'm all in favor of increasing the range of schools clerks come from) but let's not pretend that there is some straightforward way of defining merit in this selection process.
Lori Ringhand | 09.01.06 - 5:13 am |

9/01/2006 10:28 AM  
Anonymous Anonymous said...

What a stupid post. Baseball has nothing to do with the sexism that exists even at the top of the legal profession.

9/02/2006 4:17 AM  
Anonymous Matt said...

I'd agree, except that, barring a carear ending injury in the next year or so, Alex Rodrigues isn't a likley hall-of-famer but rather a certain hall of famer. Even if he plays at a level much below his worst years for, say, 5 more year he'll still have the best stats ever for either a SS or a 3rd baseman (with the possible exception of Hornus Wagner.) Even if he stopped playing right now he'd be a likely hall of famer.

9/24/2006 6:48 PM  
Blogger tammyriggs said...

It's Honus Wagner. And Chen's point was that snagging a Supreme Court clerkship is not a good predictor of a successful career as a law professor. (Not sure why Anonymous can't understand the Beane allegory; it's not exactly oblique - but as a Red Sox fan I take exception to any praise heaped upon Alex "Slappy" Rodriguez). Although probably statistically true, Chen's assurance is somewhat like the Wizard of Oz telling the Tinman that he really shouldn't want a heart because hearts were made to be broken. The Tinman's reply: "I still want one." Supreme Court clerkships open the biggest and best doors at the beginning of one's legal career. So its the range of potential future opportunites that are at stake for women (and narrowed when they are excluded by whatever mechanism, if any, is currently at work at the SC), not the relative merit achieved looking back at one's career over time.

3/14/2007 8:16 PM  

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