Majoring in Not Law
I guess by now most have seen or read the empirical study byRoyce de Rohan Barondes showing that the higher the percentage of Yale grad clerks a judge has the higher the likelihood that a decision by the judge will run into trouble on appeal. The correlation between other elite clerks and appellate problems is equivocal. In fact, the expected negative relationship between other elites and appellate difficulty only occurs if some classes of cases are omitted. (I guess for the Yale grads you can get there by excluding all cases.)
What does this mean for the law firms that hire Yale grads, more importantly their clients and even more more importantly the law students who are taught by these graduates. I mean do they go straight from giving bad advice to their judges to teaching “not law” to their students. Do they give As based on how wrong the students are? Maybe they are just above the law – although the actual explanation may be an overdose on theory.
And, finally, what is up with the judges and appointments committees that continue to hire them. Talk about market failure!
posted by Jeffrey Harrison at 7:55 PM
6 Comments:
There is a very interesting assumption that you make, Jeff, in this post. You assume that law professors should teach the law -- as declared by the courts. But as every Yalie knows, what courts do is often wrong; judges' words are not "the law." And just because a higher court reversed opinions we worked on below, doesn't mean that the higher court was right. In the highest court of the land -- the classroom -- we finally have the opportunity to expose the errors of the appellate courts throughout the land. We can, in fact, teach students the actual "law," set, of course, in proper theoretical context. That's why I always begin con law with the constitutional right to welfare (which exists), as a jumping off point. Sure, what the students learn in such a course bears little resemblance to what the Rehnquist Court has held in its so-called cases, but my students at least get a coherent theoretical picture of what con law ought to be. (And by the way, who ever said getting reversed was a bad thing, rather than a badge of honor?)
- Yale Grad Turned Law Prof.
Very funny and all I can say is -- and I know you have heard it before: Reversed and remanded.
It would not surprise me if this were true; it seems plausible that too many clerks from Yale are hired at the district court level, since (as Barondes notes) there may be a strong preference for appellate court clerkships and district court judges wind up going too deep into the Yale bench, as it were.
It's amusing, though, to see how reactions to this study tap into deep-seated biases -- it's pretty much a lesson in how we receive analyses depends on how well they confirm what we already guessed, or even based on how they resemble other guesses we have made. Donahue has a post on Balkinization that struck me as a knee-jerk criticism of the study. And this post's concerns about Yalies teaching students poorly is, well, questionable. You ask, how important is the study for the law students taught by Yalies? My answer: not at all. The performance of an average Yale graduate acting as a jack of all trades in a district court clerkship probably has next to no bearing on the quality of education offered by Yale graduates selected for teaching and assigned the responsibility for imparting an education on a particular topic.
Shorter version: the best predictor of whether one uncritically accepts this study and extrapolates from it, or unthinkingly lambastes it, is whether one graduated from or teaches at Yale Law.
My theory for what is worth is that lower court judges may feel that a clerk from a highly ranked school compensates for their possible lack of qualifications.
I just read the abstract of the study, but am not at all inclined to go further. If all the author and his minons did was count up stop signs and yellow flags, as the abstract represents, then the methodology is breathtakingly flawed. Just to start, if a district court decision is "criticized" by backwater state trial court, then the decision will get a red flag. Red flags also get posted if some portion of the decision is superceded by statute. Neither is equivalent to getting overturned on the merits due to flawed legal or fact analysis. Similarly, having your decision distinguished on the facts by a peer or lower court will earn at least a yellow flag, though such treatment says nothing about the realistic merits of the original decision. District court opinions overturned by a circuit decision that is itself overturned by the Supreme Court frequently will keep their warning labels, despite being vindicated. Even getting overturned does not signal an inability to understand and apply the law as it is. In a significant number of cases, the issue is unsettled and the district court simply does its best, later to be overturned by a court of appeals that expresses sympathy or even apologizes in writing for the sad state of the law created by its prior decisions.
These are just a few of the heaps of fine and not-so-fine points that lie behind the stop signs and yellow flags on LEXIS. Any serious study would need to have a defensible sampling method and then go behind the signs. At least from the abstract, this author does not claim to have made any such efforts. Please advise if it is just his abstract rather than his whole study that is flawed.
--Not a Yale Grad.
Two comments, One to Anon (non Yalie) and the other to Ani. To Anon: To the extent I understand the study and your criticisms I think you make many insightful points. The question would be why those methodological flaws would affect one group more than another. Unless Yale grads are getting a really bad draw, something else is going on, it affects Yale grads and is statistically significant at the 99% level.
To Ani: Of course you could be right on the teaching point. We will never know and I am sure when I visit classes I am seeing "best" behavior. On the other hand, the study suggests to me a possibility of arrogance that could easily be carried into the classroom. Hopefully all of us spend time criticizing opinions. It is possible that some of us are not so careful about separating our editorializing from attempting to assist the class in working through the reasoning that is actually in the opinion there. The problem with this theory is that I do not understand why arrogance would be limited to Yale grads.
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