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Leiter on the Top 20 Legal Thinkers:

Brian Leiter, who knows a few things about rankings, describes the Legal Affairs Top 20 Legal Thinkers poll as a "meaningless publicity stunt":

The list of candidates is--to put the matter gently--absurd, not because there aren't substantial "legal thinkers" on the list (there are some), but because there are far too many on the list who aren't leading legal thinkers by anyone's lights, and some who aren't even capable of thinking based on any evidence I've seen.

Hyperbole aside, this seems basically right. The list of nominees is a list of well-known academics, judges, and journalists - not a list of top legal thinkers. This raises an interesting question, though: What does it mean to be a top legal thinker? And maybe another: Why the fascination with rankings?

  I would be interested in reading what you think about this; I have enabled comments.

Crime & Federalism (mail) (www):
"What does it mean to be a top legal thinker?"

I think there's three categories here - internet consumers, legal consumer, and the academy. For the internet consumer, a "top legal thinker" is anyone with good stats whose writings reinforce an existing bias. "Oh, Law Professor X believes in Y, well, so do I, therefore, X is really brilliant." The legal consumer considers a top legal thinker to be someone like with good states and a somewhat high profile. For the academy, well, you know better than I, but I suspect that publications in prestigious journals is one piece of evidence, as is espousing certain favored beliefs. In some ways, those in the academy aren't much more sophisticated than the common internet consumer they so disdain.

"Why the fascinating with rankings?" Because they matter. If A can say, "I'm one of the Top 20 legal thinkers," it will impress the internet consumer, and perhaps, unsophisticated clients. Law school rankings matter because it will lead to a better job. Judicial clerkship rankings matter because it might lead to a clerkship at the Court. Etc.
12.11.2004 3:27pm
OrinKerr:
C&F,

You write that people are fascinated with rankings because they matter. But why do they matter? It may be sensible for an individual to care about them simply because others do. But why do others care about them? Is it that people who are trying to be rational maximizers often don't know how to evaluate their options, and they look to rankings as some kind of proxy?
12.11.2004 3:51pm
Okozark (mail):
When one considers our competitive natures it is no wonder that "legal thinkers" would be added to all the absurd rankings we ponder.

In a country where we have rankings for colleges, cities, most sports, hospitals, doctors, lawyers, etc., it is not in the least surprising that even academic folk can be as enthralled with ranking "legal thinking" as everyone else. How else can you explain students buying U.S. &World Report in droves to see how colleges rank. Do people really believe the #1 ranked college will academically dwarf the #10 college? I certainly hope not.
12.11.2004 4:29pm
mrkmyr (mail):
"What does it mean to be a top legal thinker?"
The categories I would think of would be,
1. most conspicuous in public life
2. best able to advance their views in the public
3. most influential amongst academics
4. most innovative, even if most disagree.

"Why the fascination with rankings?"
They give an authoritative summation of something that is complicated and possibly unanswerable.
12.11.2004 5:16pm
Fcb (mail) (www):
With the well now safely poisoned, would one be pleased, amused, or perhaps embarassed to be voted a winner?

Everybody loves a spoiler, don't they?
12.11.2004 6:26pm
Paul (mail):
I'm confused. They Say they relied on Brian Leiter to come up with the list. To go:

http://www.legalaffairs.org/poll/poll_list.html
12.11.2004 7:20pm
Tom (mail) (www):
Paul, the Leiter reliance is to his links to the most cited faculty, as he indicates in his posting. Apparently he wasn't involved in a discretionary process of choosing which names to include, or at least that's what I get out of his post.

One possible definition of top legal thinker extends beyond the law community to (1) consumers of information that includes law and (2) all 285-odd million Americans. The inclusion of such leading academic luminaries as John Grisham and Scott Turow seems somewhat more reasonable from this perspective, Turow even falling into category (1) because of his more recent Illinois death penalty work.

Personally, I think the whole exercise is pretty silly, though that didn't prevent me from voting.
12.11.2004 8:09pm
Greedy Clerk (mail):
William Van Alstyne not on the list---it cannot be credible.
12.11.2004 9:29pm
noahp (mail) (www):
I think Leiter's criticism is much too harsh-- for example, I don't think the existence of this survey is evidence Legal Affairs is on the verge of extinction -- and that the poll is of some value. No, it will not conclusively determine who the top 20 legal thinkers of our generation are, and yes, the inclusion of so many journalists is somewhat strange, but polls of this type-- involving only legal figures-- are almost non-existent. Even if it is a beauty contest, beauty contests among legal figures are sufficiently rare to make it of some interest.

Anyways, any ranking would cause controversy. I voted in it, and I don't feel like a whore.
12.11.2004 10:59pm
Landstuhl:
Legal Thinkers...

I would agree basically with Mrkmyr's comment above though I might add something about somehow making/influencing (how does one measure such things?) changes in the law, public policy, etc.

The need for lists. Like most things human it goes to something basic. It scratches an itch. I have no social-psych study or empirical data to back me up on this other than the simple fact that some many thousands of these bloomin' lists put out each year. They do serve to highlight issues though and encourage discussion. How many of these legal thinkers' work (both those on and not on the list) because of the discussion generated? That seems reason enough to have a list.
12.12.2004 10:19am
Landstuhl:
Why we need lists. Two reasons:
1. It scratches some basic itch we have to count, measure, etc.

2. They are excellent vehicles for encouraging discussion. Many of these legal thinkers (both on and off the list) will now be introduced to us (presumably not quite so great legal thinkers). Without the brouhaha over "the list" many of these would have labored in complete anonymity. Now with the list, these legal scholars will now labor in merely relative anonymity. Though my point still stands about the discussion-generating utility of lists.
12.12.2004 10:25am
cjb1 (mail):
Rankings only matter because navel-gazers like Leiter sit around decrying them, whining about them, and then creating alternate (read:self-serving) methodologies for generating them.

To modulate slightly, I think there are times when rankings, valid or not, serve a utilitarian purpose: for instance, school rankings can narrow choices when students choose between schools, firms choose between students, or schools choose between faculty hires. These choices may not be the best choices or the most well-reasoned, informed choices, but the process of arriving at them might otherwise be unacceptably arduous without some kind of baseline measurement stick. So, though I wonder why Prof. Leiter spends his time worrying about "major moves" and most-cited professors rather than spending that extra (even if limited) time on his own scholarship, I don't generally question why there is an impetus to rank academic programs; rather, I question any slavish fixation on them. (Confession: I still can't stop myself from reading Leiter—perverse curiosity).

On the other hand, it's difficult to imagine why truly great legal (or any other) minds would feel the need to narrow their thinking to developing a list of 20 great legal thinkers, much less to rank that list. The usefulness of ranking schools does not extend, to my way of thinking, to ranking individual scholars. Will a number 1 thinker have more influence in an amicus brief than a number 20 thinker? Will any of those 20 thinkers even focus on the same issues in their work? What utility will such a list provide to practicing lawyers or aspiring scholars? Is there group for whom such utility exists?

If it's not readily apparent already, I am a 1L at brand-new, unaccredited law school. I suppose that probably makes my opinion worthless, eh? Nonethless, it seems pretty clear to me from my first year textbooks which scholars past and present are giants in the areas we've addressed thusfar. Par example: Congratulations, Judge Posner, you've won the Updike-Oates prize in Sheer Volume of Legal Writing! Congratulations, Prof. Lessig, you've won the Eddie Haskell prize in Creative Excuses for Intellectual Property Theft!

So?
12.12.2004 2:12pm
Bruce:
I was surprised when I look through the list and did not see a single name that I would easily consider a "top legal thinker." This is not a problem I would have in other disciplines I know well -- I can immediately conjure up a few "top thinkers" in philosophy and history, for example. I think it has something to do with the fact that law is not simply an academic discipline, but rather has theoretical and practical elements that do not exist in harmony. Academic theories of law are part explanation, part justification for future arguments and decisions. But because the practical impact of most of the academics on the list is near nil, it would seem odd to rate them as a top thinker. Same with the practical side, whose impact on theory (except maybe as an object) is also near nil. Even if you throw away the practical side, there is still the problem that it is hard to identify what legal scholarship as an academic field of study consists of, exactly. And so it seems difficult to me to identify any one person that is particularly good at it.
12.12.2004 2:40pm
Crime & Federalism (mail) (www):
"Is it that people who are trying to be rational maximizers often don't know how to evaluate their options, and they look to rankings as some kind of proxy?"

Others can about rankings because accurate rankings are an indication of ability of quality. Generally the #1 ranked college football team is really the best college football team. Generally the #1 ranked heavyweight boxer is the best heavyweight boxer. Generally the #1 ranked student at law school is the best law student. (Maybe not the smartest person, but "best" might not always mean most brilliant. A high class rank does indicate, in Justice Kozinski's words, a certain "imperviousness to pain," or an ability to tolderate boredom, since the #1 student, like everyone else, probably took Wills &Trusts or some other class he or she found boring. Yet that person was able to overcome disinterest to obtain excellence. Surely that has something to do with being the best law student). Thus, decisionmakers are rational to rely on proper ranking systems.

The problem with any ranking is first, defining what is "bestness"? In college football, bestness is the team that scores the most points and gives up the fewest points, leading to the most victories. But what is bestness among "legal thinkers" What about a brilliant guy who has great ideas but never buckles down to write out a law review article? You can always leave his or her office inspired, and sure that he or she is on to something big. But that person never produces. Is he or she a great legal thinker?

What about a dullard who plows through scholarship to produce a comprehensive, but uninspiring work? Who is the thinker? Is an intellectual different from a scholar? Nietzsche thought so, and I think so, but if you asked me to name the best legal thinker, I would raise my arms in frustration, because I think it's relative.

The LA survey links to several people who do nothing more than link to articles and say caveman-like things, e.g., "This is a must read article." Or, "Yeah." Is a person who links to articles a legal thinker or writer? I sure don't think so. The person undoubtedly provides a valuable service, but that person is neither thinking nor writing. My conclusion might change if LA nominated a person who links discriminately. This discriminate linking would indicate the exercise of discretion, which presupposes thinking. But I don't see people who use such discretion on the LA list.

What about the person who does nothing more than put a microphone up to a person's mouth for a story write-up. Is that person a thinker or writer? Again, I sure don't think so. Though the person does write and does some thinking. But, again, they're just going off what other people have said or thought about the case.

So I think the survey is sorely flawed, though these flaws might be deliberate. I suspect they have received tens of thousands of hits to their magazine they would not have otherwise received.
12.12.2004 2:50pm