Law.com 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."
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.
I think the ABA is doing a disservice by requiring such a high number of full time faculty.
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.
However, empirical research also distances professors from practitioners. I doubt Roberts is an empiricist.
Yeah, Baby, Yeah! :-)
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.
>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
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.
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.
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.)