Americans like to believe that people get what they deserve. The whole premise of the American Dream is that, as Bill Clinton once put it, "if you work hard and play by the rules, you ought to have a decent life and a chance for your children to have a better one." (This belief may also help explain why nearly half of Americans think the sentence "From each according to ability; to each according to his needs" appears in either the Declaration of Independence or the Bill of Rights.)
And it's a belief that in an indirect but significant way has a strong effect on law school culture. Law is an extremely hierarchical profession, and law schools both reflect and strongly reinforce that fact. That fact sits somewhat uneasily with other cultural commitments to meritocratic values and -- at least among the left-liberal types who tend to predominate on law school faculties -- some vestige of a supposed commitment to economic egalitarianism. The way these tensions get resolved is by a very strong internalization in the law school world of the idea that the hierarchy is merit-driven and egalitarian, because everybody in America starts out with an equal shot of getting into the Harvard Law School (just look at Obama!). Of course put like that the belief is completely absurd on its face, so it's almost never put like that explicitly. But some version of this belief is lurking behind almost everything law schools claim to stand for.
Why do some people get into HYS, and others into the rest of the T6, and others into the rest of the T14, and others into the rest of the top tier, and on and on and on, throughout the exquisite gradations of our ranking-obsessed profession? Because the people who get into the best schools are the hardest working and the most talented, and will as a consequence make the best lawyers, that's why. Right? Well, sort of . . . But it's a little more complicated than that.
Law school is, in terms of educational credentials, the last stop for many people in a social game that they have been brought up to play ever since, 20 years ago, their yuppie overachiever parents agonized over how to get them into the "right" preschool. That game is very expensive, in terms of what it requires in both economic and cultural capital. Consider that anybody who comes from a family that makes the median income or less (roughly $50,000) and who gets into Harvard College will go there for free, because Harvard College, unlike any law school, dispenses financial aid strictly on the basis of need. Yet only a tiny minority of Harvard undergrads come from such families. (A few years ago Harvard's Dean of Admissions defined "middle income" Harvard families as those making $110,000 to $200,000 a year -- and indeed such students are, in the context of the Harvard undergraduate student body, genuinely middle class.).
Such statistics illustrate the extent to which social class is a massively powerful factor in determining who ends up attending various strata of the American higher educational system -- and nowhere is that effect more marked than in the law school world. To get into a top law school you generally need a very high LSAT score and a very high GPA from a selective college or university. The way to get these things is to be born with a predisposition to excel at certain sorts of intellectual mazes, to work at least reasonably hard at developing that predisposition, and, crucially, to grow up benefiting from a level of socioeconomic status that will aid you in the noble quest for a 170 LSAT and a 3.9 from Williams.
(Your typical double-plus goodthinking liberal-left law professor -- I'm painting with a broad brush here Clarence; please edit for tone -- loves to prattle on at every opportunity about the importance of "diversity," when what "diversity" tends to mean these days in the upper reaches of American higher education is for an African-American child of two doctors who grew up in Georgetown to compare her junior year abroad in Paris with a those of a white kid who grew up in Winnetka and went to New Trier, but who took a different life path by spending his junior year abroad in Rome.)
Anyway. Once one has boiled off all the pretensions of law schools to providing genuine intellectual edification and legitimate professional training to their students, one is left with what law schools really do best, which is to work as highly efficient social sorting mechanisms at the terminal point of the American educational system. This is why 90% of the law school game is as a practical matter played out even before students get to law school -- what counts, for the most part, is where you go to law school, not what you do once you're there. (This also helps explain why the legal elites have traditionally been almost completely indifferent to whether top law schools actually prepared students to practice law. "Everybody" -- meaning everybody who counted -- understood that wasn't really what law school was for).
Now this sorting function does have practical value. It's true that, all other things being equal, somebody with brilliant academic numbers is going to be a better bet to succeed in the practice of law than someone with more modest formal credentials. But, as so often is the case in the law school world, this generalization is given wildly undue weight by those who control the entry points to the legal elites. I have seen, briefly in legal practice, and extensively in legal academia, the truly bizarre emphasis that's given to whether job candidates went to a tiny handful of schools (The reductio ad absurdum of this trend is reflected by the current makeup of the SCOTUS, which features justices from exactly 2.3 of America's 200 ABA law schools, while each of the last three successful nominees graduated from Princeton. Hey but one of them was a Latina. Diversity!).
Legal academia and to a lesser extent the elite bar are obsessed with these status markers for the same reason law professors keep inflicting idiotic issue spotting exams, which bear almost no resemblance to any task a lawyer would ever have to perform, on their students: Because we all excelled at running this particular social maze, so surely that maze must be an excellent proxy for "merit." The obsession with dubious status markers also helps explain the puerile fascination legal academics and high status lawyers have with law school and law firm rankings -- it's as if we want to keep acing the LSAT over and over again. (I knew someone in college who, when she got her LSAT score, actually burst into tears of joy. Her first words, I swear, were "Now I'll be able to summer on the Cape!" I'm pretty sure this was the first time I had ever heard "summer" used as a verb).
The natural evolution of this entire process is reflected in Harvard's recent decision to move to a pass-fail grade system. This makes perfect sense from the perspective of the median HLS student, who wants to emphasize the inter-law school hierarchy as much as possible over any intra-law school competition. But it also makes sense from the perspective of the school's administration, which wants to protect its brand in the face of the heretical thought that a medicore HLS student might not actually be a better lawyer than a top student at a somewhat less exalted school. In other words these people want to stop the social sorting process at the precise point where doing so has the maximum benefit to them.
It will be interesting to see how the relatively recent development of lower-ranked schools aggressively buying highly qualified students (for the sake of the rankings of course) will effect the social sorting game. I don't see why it doesn't make sense for students who get into high-ranked schools but who go to lower-ranked schools for the scholarship money to note this explicitly on their resumes (perhaps some already are). Such students may be able to get something of the best of both worlds -- the status associated with getting into the most exclusive clubs, along with the money for turning down those seductive but dangerous invitations.
This blog has focused for the most part on what law schools do badly. This post has been about what they do supremely well, which is to replicate and reinforce class privilege, under the rubric of rewarding native intellectual ability and the capacity for hard work. And of course the skyrocketing cost of legal education has played a crucial role in intensifying these effects. When I started teaching at a good state law school in the early 1990s, tuition was $5000 per year in 2011 dollars. Now it's more than $30,000. Many of my best students from my early years of teaching -- people from relatively modest social backgrounds -- would never have gone to law school if it had cost what it costs now. What law school costs now ensures that a much higher percentage of students than ever before will either be children of the affluent, or people who have neither the necessary economic nor cultural capital available to them to figure out that borrowing $200,000 in non-dischargeable loans to go to law school is almost always a terrible idea. That too is a form of social sorting -- and we are beginning to see the consequences of it on a grand scale.