A Great Law School Dean Doesn’t Have to be a Great Scholar

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 much 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 law school administration and faculty 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 A’s contains many lessons for academic institutions. 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.

UPDATE: On closer inspection of their posts, I think that Campos doesn’t assume that an excellent dean needs to be a top scholar to anything like the same extent as Mirengoff does. He notes, for example, that Kagan was “an able administrator,” despite his low regard for her scholarship. Still, I think this underrates her achievements as HLS dean.

UPDATE #2: As a prominent scholar pointed out to me in an e-mail, one of the reasons why Kagan hasn’t produced as much scholarship as one might expect of a well-known professor at a top law school is that her academic career was interrupted by several stints in government service, and of course by her tenure as HLS dean. Moving back and forth between academia and government is not uncommon for legal scholars, though it is becoming less common as legal scholarship becomes more specialized and demanding.

UPDATE #3: Paul Mirengoff responds to this post here:

Ilya Somin of the Volokh Conspiracy takes issue with what he takes to be my claims that (1) Elena Kagan is poorly qualified for the Supreme Court because she produced a surprisingly small amount of legal scholarship and (2) an excellent dean needs to be a top scholar. Actually, I don’t think I made either claim. Instead, I argued that (1) given the slender amount of her scholarship and the fact that she’s never been a judge, Kagan would be a stealth nominee and, indeed, might be considered something of a stealth law professor and (2) that it was surprising to me (as someone who hasn’t followed law school politics closely) that a law professor could become the dean of a top law school having produced as little scholarship of note as Kagan has.

Like Somin, I believe one can succeed as a law school dean without having written much legal scholarship. For example, the managing partner of a large law firm might make a fine law school dean, as I understand Taylor Reveley has at William & Mary. And a law professor with no administrative experience and little scholarship of note might prove to be a terrific law school administrator.

I am sorry that I apparently misunderstood Mirengoff. If I read his new post correctly, he doesn’t seem to deny that Kagan was a highly successful dean of Harvard Law School. He does, however, suggest that her supposedly meager scholarship raises questions about her qualifications for the Supreme Court.

My own view of Kagan’s scholarship is that it is pretty good, though not pathbreaking. Her major articles have gotten numerous citations and are well-regarded by other scholars in her field, especially her 2001 Harvard Law Review article on “Presidential Administration.” Her 1995 University of Chicago Law Review article makes a good case for Senate questioning of judicial nominees’ legal philosophy, a position I have argued for myself. As Campos and Mirengoff suggest, the quantity of her scholarship is not impressive. However, that is in part due to the fact that she spent several years in government service in the 1990s, and then was Dean of HLS from 2003 on. She might be better-qualified for the Court had she written more and better scholarship. On the other hand, her years of service in the Justice Department, as HLS Dean, and as Solicitor General are also valuable qualifications.

Mirengoff suggests that being a successful dean of a major law school may not be much of a qualification for the Court. I agree that it probably isn’t sufficient by itself. But it surely counts in the nominee’s favor. As Dean, Kagan showed that she is an excellent judge of legal scholarship and that she understands that she is familiar with a wide range of viewpoints on constitutional law and legal theory. She also proved to be a good manager and administrator. All of these skills are useful to a Supreme Court justice, though they are not the only ones a justice should have, and often not the most important.

Overall, I think is Kagan is not best-qualified possible nominee. But I do think her professional qualifications are good enough. Any plausible objections to her appointment would have to be based primarily on her ideology and judicial philosophy.