Many prominent people, including Chief Justice John Roberts and Judge Harry Edwards, have raised their voices about the increasing irrelevance of academic writing to practicing lawyers and judges. Yet, despite railing at the academy, those judges — and law firms, and sophisticated purchasers of legal services — all rely on the academics to identify talented lawyers. Law schools brand the beef, and purchasers buy based on the brand. What do I mean, and why is that process natural and appropriate?
Let’s start with an example for people coming right out of law school: How should judges pick law clerks? One way — perhaps even the “fair” way — would be for judges to assume that each of the 45,000 people graduating from law school is equally likely to make a fine clerk. Judges would solicit applications from all 45,000 and then start the process of sorting the good from the bad.
That cannot work, of course. Judges don’t have the resources (or, necessarily, the ability) to study transcripts, read writing samples, conduct interviews, and do the other spadework needed to assess all of those candidates comprehensively. And judges can’t externalize the cost of the screening process; there’s no person or institution that would play that role for an acceptable price.
What are judges to do? They rely on law schools to brand the beef.
Rant as they may about scholars producing unhelpful scholarship, most judges rely essentially unthinkingly on those same scholars to have separated the potentially gifted lawyers from the crowd. Judges assume that the best students went to the best law schools; that, after arriving, the more talented law students outperformed the less talented ones; and thus that the best performers at the best law schools will make the best clerks. Judges typically pick their clerks from among the top graduates of the elite schools. Judges may think that professors are insane when they’re selecting topics for their scholarship and then devoting months to researching and writing on those subjects, but those same judges rely on the same professors to brand the beef astutely. Whatever criteria law schools are using within the asylum to rank their students, the outside world seems quite happy with it.
Is that fair?
I haven’t yet said a word about fairness. I’m starting first with truth, and then I’ll move on to justice.
The process may be unfair to the student at the bottom of his or her class at a fourth-tier law school who will prove, years later, to be a great lawyer. And the process is surely unfair around the edges, where the first person to miss the law review at a school is indistinguishable from the last person to make the cut. But someone has to brand the beef, and there’s no obvious alternative.
How do law firms decide who to hire as new associates? The same way the judges do, although the firms are hiring more people. Let the law schools (and, among the elite graduates, the judges who hire them as clerks) brand the beef, and then choose from among the candidates with the right brand.
How do sophisticated purchasers of legal services decide which counsel to retain?
We could, of course, assume that all of the million-plus lawyers in the country are equally likely to be competent, and then start the process of screening the candidates one by one. Or we can let the system brand the beef: Assume that celebrated firms hire the best candidates and that the screening process known as “partnership” generally separates the better lawyers from among the many who joined the firm together as associates. After the system has thus narrowed the field of candidates for us to consider, we can start our own, limited screening process. If we couldn’t buy beef by the brand, what would we do?
How can a person who’s been misbranded overcome the injustice of this situation?
Personal relationships can help. If you know the judge personally, or know someone who’s close to the judge and whose opinion the judge respects, you might land a coveted clerkship even though you’re an untraditional choice. So, too, if you have a connection with the hiring partner at a white-shoe law firm or someone in-house who’s deciding who to retain for a new matter. But howling at the moon — complaining that the system is unfair and judging you incorrectly — isn’t likely to do much good. There’s no real alternative to letting the system winnow the number of candidates for legal positions to a manageable size.
Mark Herrmann is the Vice President and Chief Counsel – Litigation at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law (affiliate link). You can reach him by email at [email protected].