Professor Roberts? recalls John Roberts law school days at Harvard. One of his classmates recalls:

Barrack, Rodos & Bacine partner Mark Rosen remembered that John G. Roberts had two goals when the two young men were classmates in their first year at Harvard Law School -- becoming a professor at the law school or serving on the U.S. Supreme Court.

"It's up to him to say whether he got the consolation prize," Rosen said, just a day after Roberts was nominated by President George W. Bush to replace Sandra Day O'Connor on the Supreme Court.

His undergraduate History thesis advisor adds:

"He did not have that sort of showy type of intelligence," Strasbaugh said. "It was more of a controlled, thoughtful, not-aggressive type of intelligence."

I have wondered whether legal academia today (perhaps even more than other academic fields) tends to place an undue premium on a "showy type of intelligence" as opposed to "controlled ... not-agressive type of intelligence." I don't know, of course, whether this has always been the case. But it is my impression that this is the case today (there's no empirical test for this assertion, of course, so I could be completely wrong).

But compare, for instance, former appellate attorney Roberts to former Professor Scalia--who, I think we can all agree, has somewhat more of a "showy type of intelligence." From how he is described, one can guess that if Roberts were a professor today, he would likely be a doctrinally-oriented scholar and probably hornbook writer. In fact, Roberts does teach as an adjunct professor. These folks seem to be less-highly valued in the market today than interdisciplinary thinkers and theorists. If I am correct that law schools today tend to value "showy" intelligence as opposed to quiet intelligence, it seems to follow that we are inadvertently turning away some extremely able people from the academy.

On the other hand, given the institutional arrangement of modern law schools, it may be that this bias in inevitable. In particular, for whatever reason, law reviews today seem to overvalue novel, glib, and clever articles in the market, thus it may be that to the extent that the law school hiring process selects for "showy" intelligence, it may be an efficient response to peculiar market in which we sell our services, i.e., law reviews.

So, while at first glance the relative absence of people like "Professor Roberts" seems like a market failure in the professorial hiring market, it may be perfectly rational in light of the peculiar market for which future scholars are being selected. Today, it seems we find people like John Roberts teaching as adjuct professors (and I might add, these adjuncts are usually very popular with students who appreciate their attention to craft as opposed to bombastics) and passing along lawyering skills, whereas the profile of tenure-track professors looks completely different and selects for "showy intelligence."

Interesting contrast to the popular stereotypes of courtroom work being all about bombast and theater and academia being populated by studious dweebs.
7.22.2005 10:35am
Adam (mail) (www):
Appellate law is not traditional "courtroom work". Among other things, there are no witnesses to question.
7.22.2005 10:37am
Larry (mail):
Conservatives may be nominating Supreme Court Justices for a long time to come, if they get by the Hillary challenge in '08. That being the case, the former asset of a Harvard or Stanford law school background could well become a stigma. Roberts may just be getting in under the wire.
7.22.2005 10:42am

I think there are two issues: being showy versus modest, and being interested in law and litigation versus being interested in theory and interdisciplinary work. You can be a modest theorist, or a showy doctrinalist; the former is personality, and the later is approach or subject matter.

As for legal academia turning away bright people, I would put it the other way: Many bright people turn down careers in legal academia. It seems to me that only a small percentage of the very brightest lawyers ever try to be law prodessors. My anecdotal sense is that most of the smartest people with law degrees are practitioners, not academics.
7.22.2005 11:23am
Atty in Chicago:
I attended two law schools (one 4th tier and transferred to a top 20 1st tier) and I was enthusiastically happy with ALL of my adjunct professors and only enthusiastically happy with one fulltime professor who happened to be from the 4th tier school (Prof. Steve Friedland from Nova Southeastern Univ). I intentionally chose almost all adjuncts for my 3rd year classes.

I think the ABA is doing a disservice by requiring such a high number of full time faculty.
7.22.2005 11:44am
NR (mail):

On the other hand, given the institutional arrangement of modern law schools, it may be that this bias [in favor of "showy" intelligence] in inevitable. In particular, for whatever reason, law reviews today seem to overvalue novel, glib, and clever articles in the market, thus it may be that to the extent that the law school hiring process selects for "showy" intelligence, it may be an efficient response to peculiar market in which we sell our services, i.e., law reviews.

There's no mystery as to why law reviews "tend to overvalue novel, glib, and clever articles." The reason is that law reviews are run by law students, who tend to be easily impressed with turgid theory and multidisciplinary approaches and quickly bored with empirical analyses and doctrinal surveys. Take publication decisions out of the hand of law students, and the demand for "showy" articles may go down. This in turn might draw more people like John Roberts into academia.

I have no idea whether this would be a good or bad thing for law schools in the long run.
7.22.2005 12:30pm
John Jenkins (mail):
Yes, it's always the students' fault, isn't it. It has nothing to do with self-selecting bias where professors think we want something and so send us that. I know of law review editors who have asked for more empirical data. Law professors don;t give it to us. Guess what? They aren't TRAINED for it. Ever seen a real research methods class in a law school? Mine doesn't have one, for sure. I was fortunate enough to go through a PSCI program that was heavy on methodology (and I will never be a law professor b/c my school is something like 71st (2d tier) and I didn't finish #1) No. 1 in my class was a guy with a business admin degree. Not a lot of methodological rigor there, now is there?
7.22.2005 12:39pm
frankcross (mail):
Law reviews are increasingly looking for good empirical work, I have no complaints about their receptiveness to my research. I think complaints about student editors of law reviews are consistently overblown.

However, empirical research also distances professors from practitioners. I doubt Roberts is an empiricist.
7.22.2005 12:54pm
John J. P. (mail):
Orin Kerr writes:

My anecdotal sense is that most of the smartest people with law degrees are practitioners, not academics.

Yeah, Baby, Yeah! :-)
7.22.2005 1:15pm
Bruce Hayden (mail):
I agree with "Atty in Chicago". My best profs were adjuncts. I ended up with about a 50/50 mix. The difference, in many cases, was that the adjuncts actually knew what they were talking about. They had been down in the trenches, and their section of the law was not some dry theoretical subject for them, but their life's work.

So, I got civil procedure from a trial lawyer, criminal law from a nationally know criminal defense atty., criminal procedure from a sitting trial judge, and patent law from a patent attorney. In short, from lawyers who did it every day. My one big dissapointment was in Admin Law - but I am not sure it is possible to jazz that up at all.

So, I too, agree that the ABA hurts legal education by insisting on having such a high ratio of full time profs.
7.22.2005 1:24pm
Flavio Rose (mail):
I don't understand the bit about "consolation prize." Roberts clerked on the Supreme Court. My understanding is that all former Supreme Court clerks who are willing to do some academic writing can become lawprofs if they so desire (and want to be paid a fraction of what large law firm partners make). I would welcome correction of this misconception.
7.22.2005 2:12pm
Daniel Chapman (mail):
I think it was a joke. I also assume he could have gotten a teaching job if he'd wanted. Rosen was probably just saying something like "Congrats... but I sure wouldn't want your job."
7.22.2005 2:55pm
Craig Oren (mail):
Perhaps we need to modify Todd's hypothetical. John Roberts, so far as we know, did not seek to become a law professor. Thus we cannot infer anything about what law schools want from his failure to become a professor. What we can infer is that Roberts decided not to become an academic but rather to be a practicing lawyer. Perhaps his personality, while said to be quiet and self-effacing, is one that enjoys more people contact than that of the typical law professor. Writing articles, after all, is quite a solitary task.
7.22.2005 4:14pm
John Noble (mail):
> thus it may be that to the extent that the law school hiring process selects
>for "showy" intelligence, it may be an efficient response to peculiar market >in which we sell our services, i.e., law reviews.

The market for litigators selects out showy intelligence — if you're not intelligent enough to hide it in the courtroom. Judges or juries that smell a wiff of intellectual superiority will kill you. A lot of litigators, even appellate litigators, are bombastic or theatrical in the courtroom, but not about their intelligence. — John Noble
7.22.2005 5:53pm
Paul Gowder (mail):
Do you think appellate litigators hide showy intelligence too? I've only done a handful of appellate arguments (actually, exactly as many as I've done trials) but I don't get that sense necessarily. In fact, I've seen judges just shred bumbling counsel...
7.22.2005 7:09pm
I think it's not just a problem for law profs, but for profs in general. I think it's just the nature of the academic game.

I'm a summa cum laude graduate of Professor Zywicki's undergraduate alma mater with a PhD from the institution where he received his JD. After grad. school, I taught for a short time as a visiting faculty member at a small college in the midwest. At some point in my journey through academia, I found myself increasingly tired of the posture the most successful academics adopted, as if they were constantly advertising: "I'm so clever!" That kind of a pose never came naturally to me, and it wasn't usually reflected in my work.

I've since left teaching, and I can't say I miss life in academia.
7.23.2005 12:47pm
LT (mail):
I think that even with all of the Judge's qualifications, his many years of actual practice would doom him to adjunct status. Too much time in the trenches would make it impossible to not provide some practical, rather than theoretical, lessons to students. I believe law schools still are rewarding the theoretical to keep law in its special "professional" status. I remember looking into becoming a law professor at one time and saying "by sheer happenstance went to one of the schools where for some reason law schools want their law professors to have attended" (a pretty small list) and then reading that it was preferable to be only a few years out of law school (basically ten years too late for me). It was only then that I realized why I learned nothing practical or memorable from half of my professors. I also at that time had been completely unaware of politics, and did not realize that you had to trend liberal if you were going to have a chance at most schools -- or at least act like you have never heard of politics or had a political thought in your brain (my engineering background would have served to convince anyone of that).

Frankly, law firms seem to be going through the same issues. Half of the partners go on about the "profession of law" and the other half discuss the "business of law". Most of the big firms I am aware of have moved (or are being forced to move to keep up) towards rewarding parnters who are the "business of law" types. This was causing great controversy and discussion in law firms where I was a partner which mostly seemed to be publicly aired at partner meetings where mission statements were being discussed.
7.23.2005 3:51pm
Bill Dyer (mail) (www):
If you want to actually practice law but still live mostly in a world of concepts and ideas (without actually having to, say, cross-examine anyone), becoming an appellate advocate is the way to go. And Judge Roberts' career path has been damn near optimal for an appellate advocate who's practicing instead of teaching law. Add in a taste for public service (which one has to acknowledge; an ex-Supreme Court Clerk could have skipped the gov't jobs and gone right into six-figures in a private appellate practice), and choosing the path he's taken over the path of a law professor makes a lot of sense.

Actually, my biggest reservation about his record is that I can't see any indication that he's ever tried a case at the trial court level. But on balance, his other achievements more than make up for that, I guess. (I'd still like to see the next appointee be someone with some experience as a trial judge, though.)
7.24.2005 4:26am