The Legal Beat
AALS 2017 (Part III): Invidious Distinctions
Posted on Friday January 06, 2017
“Wherever the circumstances or traditions of life lead to an habitual comparison of one person with another in point of efficiency, the instinct of workmanship works out in an emulative or invidious comparison of persons. The extent to which this result follows depends in some considerable degree on the temperament of the population. In any community where such an invidious comparison of persons is habitually made, visible success becomes an end sought for its own utility as a basis of esteem. Esteem is gained and dispraise is avoided by putting one’s efficiency in evidence. The result is that the instinct of workmanship works out in an emulative demonstration of force.”—Thorstein Veblen, Theory of the Leisure Class
I received a lot of responses about my last post at AALS. I expect I struck a nerve and that some of the things I experience at AALS are not just isolated to the joys and wonders of being me.
For example, some expressed frustration to me about having “hot topic” proposals repeatedly denied year after year, only to see far more familiar names have similar panels. Some have expressed frustration at the level of repetition, both in terms of topics and in terms of speakers. Profsblawg proposed ending “frequent fliers” or at least deterring repeated casting of the same players. Some have claimed the problem is the hierarchy of AALS, which culminates in badges showing who is attending, speaking, or exhibiting.
I think the problem though is that AALS isn’t to blame for this, and that the problem is within the halls of academe itself. We love hierarchy, unless it works against us. Rankings of schools, rankings of law reviews, where you clerked, prestige of your firm, and other signals tell where we are in the pecking order. Tenure-track law professors are above the legal writing law professors and clinical law professors, getting to vote on things that others do not, getting lifetime employment, and all of that. Tenure itself is a hierarchy. It is hard to critique a game in which many of us have been very successful, because, damn it, we know we earned our prestige.
The problem is that “merit” is intertwined with “privilege,” and we tend not to think about what is our doing and what is merely the fate of the gods. For example, I told this stylized story last night…
Once upon a time a successful undergraduate student from an awesome undergrad institution had an amazing GPA and LSAT score. He had mommy and daddy help pay for his education at an excellent top-ranked law school, where they were both alums. Through hard work, he rose to the top of the class (thankfully didn’t have to be employed at all during law school except summer internships). He got a clerkship and went into academia, where he proceeded to write 12 articles before tenure, appearing frequently on AALS panels. He always voted his law school the best in U.S. News rankings, along with where he taught.
Now multiply that times 1,000s and you get the picture. Things were earned, and things were received through fate.
If you aren’t one of those folks, your story feels more like this: Once upon a time a mediocre college student at a no-name college was working 50 hours a week and barely had time to study. Worried about paying for college, sacrificing his 20s, he finally graduated from the no-name university. A college professor saw his potential, and encouraged him to go to law school. But it wasn’t Harvard. Not with his terrible grades, and who has time to study for the LSAT? He had to work throughout law school, but managed to through some miracle land at a firm. He did okay, but not okay enough to get the best grades and prestige.
He gets a passion for teaching, writes, writes more, and clubs and scrapes and finally lands at a lower-ranked law school. He publishes like crazy, but can’t land in the higher-ranked journals for some reason.
Now multiply that times 10,000 and you get the picture. Things were earned, and things were handed down through fate.
Once the distinctions are handed down, people don’t look too carefully beneath the screening devices. Is that article in the low-ranked journal worth reading? Can it be any good? Is that faculty candidate who is different from us because she doesn’t come from Harvard, Yale, or even Stanford any good? Can that vendor at AALS really know anything about empirical methods? Is it worth conversing with that professor who isn’t famous?
Most of us don’t know the answers to those questions. Many of us are too busy trying to be seen to think about those who are not seen. Those of us who have been or are now on panels oftentimes do not think about the fact we don’t exist without the audience (but man, are we mad when the audience member tries to become a member of the panel!). And those of us in the audience are not merely idolizing the panelists, no matter how famous (but man, are we mad when they blow us off!). Some of us who have chaired sections would love to have different voices, but we don’t want to lose our time slot, or make it even worse. The endogeneity of the cycle of success sucks for those not in the positive feedback loop. For those of us who are in it, it’s hard to recognize that it’s not all about our hard work.
Thus, I almost feel that I was too harsh in my critique of AALS yesterday. The problem is deeper. Perhaps if we think about it, that which we dislike about AALS is that which we may dislike about our profession generally.