Steven Harper Responds

Steven Harper sent me an interesting response to my post yesterday on his essay in The Chronicle Review.  Here it is in full (I apologize for not having first noticed it in March–I just came across it the other day when a friend emailed it to me and I had assumed it had been more recent):

I’m certainly grateful that Professor Zywicki read an excerpt from my book, The Lawyer Bubble – A Profession in Crisis (Basic Books, 2013). The excerpt first appeared in the March 15, 2013 issue of the Chronicle of Higher Education, and I’m even more appreciative that recently he took the time to share his reactions. Perhaps my comments will help advance the discussion.

Professor Zywicki agrees with my observation that many universities have viewed law schools as profit centers: “Universities are incredibly mismanaged with very short term time horizons for their leadership, so finding a profit center and milking it is pretty much what you’d expect. That makes sense to me.”

But he concludes that my criticism about the influence of rankings “seems to miss the point” by confusing “cause and effect on the importance of rankings.” He offers a two-step argument.

First, he suggests that rankings have become important because students consider them important. I agree – and my book devotes significant attention to the stupidity of such reliance. Indeed, in my Northwestern University undergraduate course on the legal profession, we spend a week on that subject. Invariably, students come away shaking their heads in disbelief at the absurd U.S. News methodology and the danger in using the resulting rankings to make one of life’s most important decisions.

One comment to Prof. Zywicki’s piece observed: “Flawed or not, they’re better than nothing and the author should feel free to come up with a better system if he thinks he can.” As I note in my book, this “better-than-nothing” argument ignores “the unfortunate fact that bad information can be worse than no information at all.” (p. 16.) There’s a reason our society allows a cause of action for fraud.

As for developing a better system? Abolishing the U.S. News rankings would be an improvement. If they disappeared tomorrow, students would exercise more care in making decisions about whether and where to attend law school, their independent judgment would prevail over mindless deference to meaningless ranking numbers, and the profession would be better off because deans would stop pandering to the flawed U.S. News methodology.

Professor Zywicki makes a second point, and here we disagree. He argues that “the legal job market considers rankings important.” Actually, when it comes to large law firm employers (still the most desired starting positions for graduates generally), law school groupings matter, but individual U.S. News-type rankings within a particular group do not. The data confirm my own 30-year experience of recruiting new associates for a big firm.

For example, in 2012 only six law schools placed more than half of their new graduates in the nation’s largest firms, the NLJ 250. Only 23 schools placed more than 20 percent of their graduates in such firms. After that, the fall-off was even more dramatic – and always has been. By the time you get to the law school ranked number 50 on the NLJ 25 list, only eight percent of its graduates landed big firm jobs.

The important point is that the NLJ 250 placement rate differences between groups matter a lot. But the differences within each law school grouping – for example, school #2 (55 percent) and school #3 (53 percent) in the top group, or between school #19 (23 percent) and school #22 (21 percent) in a lower group – are relatively insignificant with respect to those employment opportunities.

Of course, I’m not suggesting that big firm jobs are the only placement outcomes that matter. But as indicators of an important employer constituency, they’re certainly relevant. Simply put, those employers are looking at law school groups, not at specific U.S. News rankings within particular groups of schools. I look forward to hearing from those who have found that other prospective legal employers behave differently.

Professor Zywicki and I agree that the problems we see aren’t limited to law schools. They plague higher education. In fact, they are part of a larger phenomenon whereby our society generally finds comfort in the superficial appeal of a metric — such as a ranking. So-called objective numbers eliminate the need for independent judgment and make decisions so much easier. (I’m not an anarchist; I have a Master’s Degree in Economics, so I understand the importance of data driven decisions, as well the need to challenge the assumptions that underlie data.)

As I explain in my book, “It’s easy to forget that the whole rankings system is relatively new. Somehow, prospective students and law schools managed to find each other long before U.S. News entered the scene. Well into the 1980s, pre-law students understood the general pecking order based principally on the difficulty of gaining admittance to each school. There were widely accepted groupings (e.g., Harvard, Yale, and Stanford have been the top three for a long time), but the precise order within any group depended on individual preferences and didn’t seem particularly important. All of that gave way to a numbered list in 1987, when U.S. News & World Report first published its top twenty. Whether the impact is on students’ decision making or deans’ behavior, the U.S. News listing remains the mother of all misguided metrics.” (p. 16)

The consequences seem pretty clear to me: “As reliance on the U.S. News ranking system intensified, the perverse behavioral impact of its methodological criteria became more apparent… Whatever else it may do, the frenzy over rankings has combined with most law schools’ profit-maximizing business models to inflate the lawyer bubble.”  (p. 16-17)

To be clear, I don’t think that U.S. News rankings are the sole cause of the lawyer bubble. In fact, as I explain in my book (pp. 10-14, 158-160), the combination of unlimited federally-backed loans, the inability of impoverished students to discharge educational debt in bankruptcy, and law schools’ lack of ultimate financial accountability for poor employment outcomes fuel the dysfunctional system. That begins to explain why, even as the legal job market languishes, too many law school deans still focus their attention on filling classrooms. Some are even raising tuition – a perverse market response indeed. The influence of the U.S. News rankings methodology contributes to the problem.

Perhaps, as Professor Zywicki concludes, the behavior of law school consumers “is actually individually rational.” But if so, it’s only because a fundamentally irrational system (of which the U.S. News ranking methodology has now become embedded as a integral component) has created perverse incentives, and not because prospective employers care whether a student graduates from a school that U.S. News ranks #38 or #42.

Thanks to The Volokh Conspiracy for allowing me this opportunity to express my views.

-Steven J. Harper

Thanks to Steven for his thoughtful response.