Journal of Legal Education (Association of American Law Schools)

Kerr, Orin

English

Line-Drawing

Dinerstein, Robert

Rosser, Ezra

1
Journal of Legal Education, Volume 70, Number 1 (Fall 2020)
From the Editors
Although this issue arrives on desks roughly two years after the start of 
the coronavirus pandemic, it offers a degree of continuity with our usual fare 
concerning scholarship about legal education. Our next double-length issue 
will explore in depth matters of teaching modality, technology, and change 
connected with the ongoing pandemic. This issue offers fresh perspectives 
on matters of long-standing concern—line drawing, pro bono requirements, 
pedagogy, law student instruction of high school students, and bar exams. We 
found the articles, as well as the three book reviews that fill out this issue, to be 
engaging and insightful and we hope you agree. 
In Reframing Faculty Pro Bono, Professor Ezra Ross argues that progress on 
increasing levels of faculty pro bono may be furthered by moving away from 
tired debates about a faculty pro bono requirement in favor of an approach 
that emphasizes softer nudges. Observing that earlier efforts to spark debate 
around faculty pro bono requirements have largely stalled, Professor Ross 
suggests that nudges—including everything from curating bite-sized volunteer 
opportunities across a range of issues to collecting and sharing information on 
the extent to which individual faculty members are engaged in pro bono work—
might provide better ways of encouraging faculty to meet this professional 
norm. 
Turning from faculty engagement with the outside world to faculty meeting 
practices, Professor Jonathan Siegel provides readers with a practical guide 
to parliamentary procedure. A Law Professor’s Guide to Parliamentary Procedure 
dispels common misconceptions about Robert’s Rules of Order. Though 
parliamentary procedures are a standard part of faculty governance, many 
rules are either misunderstood or abused. Siegel’s article provides a useful 
guide to parliamentary procedure that will interest any faculty member who 
has experienced the frustrations of navigating procedural barriers when either 
pushing for or objecting to a particular policy. 
Professor Mark Kelman’s contribution, Of Moore, Players and Owners, and 
Consequentialist Pedagogy: Can the Center Hold?, is arguably the most far-ranging 
article in this issue, moving as it does from a case about patient rights over cells 
removed from their body to questions of free agency in professional sports. 
Explaining that when faced with hard cases many students tend to avoid 
consequentialist reasoning and are drawn instead to facile black and white 
positions, Kelman shows the value of pushing students into uncomfortable 
territory when they are forced to defend their initial statements. Whether you 
are interested in how to expose students to consequential reasoning or just 
really like baseball, this article is both fun to read and insightful. 
2 Journal of Legal Education
With their article, Preparing Lawyers for Practice: Developing Cultural Competency, 
Communication Skills, and Content Knowledge through Street Law Programs, Ben Perdue 
and Amy Wallace highlight the value of Street Law programs. As they show, 
law student participants in such programs report numerous benefits associated 
with their experience teaching high school students. The article provides 
readers with an understanding of the animating philosophy behind Street 
Law programs, the variation in their teaching and credit hours, and the basic 
details of similar programs. 
In Safeguard or Barrier: An Empirical Examination of Bar Exam Cut Scores, Michael 
B. Frisby, Sam C. Erman, and Victor D. Quintanilla show that bar exam cut 
scores are not correlated with disciplinary action against lawyers. Given the role 
the bar exam plays in limiting the diversity of the practicing bar, the authors 
argue that their analysis of disciplinary action suggests that the bar exam does 
little to protect against malpractice and instead serves as a discriminatory 
barrier to entry into the profession. 
Finally, Professor Orin Kerr provides the issue with an “at the lectern” 
feature. He explores the common pedagogical tool that asks students to zero 
in on where and how they would “draw the line” between two conflicting 
positions. Such line-drawing questions, he notes, force students to address 
the challenges that arise when values aligning with a particular conclusion 
compete with alternative values that would support drawing the line in a 
different place. 
This issue ends with book reviews by Professors Cynthia Grant Bowman, 
O.J. Salinas, and Katharine G. Young, that cover, respectively, a comparative 
study of women’s experiences in the legal academy, an edited volume on legal 
writing pedagogy, and an exploration of the role of constitutional rights in 
protecting individuals. 
As much as the challenges of the ongoing pandemic have disrupted legal 
education, the articles in this issue underscore ways in which life, inevitably, 
goes on and that while legal education is impacted by the pandemic, some 
challenges are perennial ones. We hope that you get a chance to check out 
these great contributions. It is a privilege to have the chance to teach law, but 
a privilege that invites reflection. These articles collectively respond to that 
need for reflection and critical consideration of our work in the legal academy.
-Robert Dinerstein and Ezra Rosser


From the Editors

Young, Katharine G.

Book Review of How Constitutional Rights Matter

Perdue, Ben

Wallace, Amy

Preparing Lawyers for Practice: Developing Cultural Competency, Communication Skills, and Content Knowledge through Street
Law Programs

Salinas, O.J.

Book Review of Lawyering Skills in the Doctrinal Classroom: Using Legal Writing Pedagogy to Enhance Teaching Across the Law School Curriculum

Kelman, Mark

Of Moore, Players and Owners, and Consequentialist Pedagogy: Can the Center Hold?

Frisby, Michael B.

Erman, Sam C.

Quintanilla, Victor D.

Safeguard or Barrier: An Empirical Examination of Bar Exam
Cut Scores

Ross, Ezra

Reframing Faculty Pro Bono

Segall, Eric J.

Feldman, Adam

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The Elite Teaching the Elite: Who 
Gets Hired by the Top Law Schools?
Eric J. Segall and Adam Feldman
“[I]nstitutional prestige is at best a proxy for quality . . . . Nevertheless . . . the 
relative ranking of a candidate’s law school will be the single most important 
factor in predicting [academic] law job market success, beyond more direct 
measures of potential such as publications and teaching.”1
Do you want to teach at a Top Ten-ranked law school? If so, you had 
better excel at something you will encounter years before you even consider 
applying to be a law professor. Something that has no relationship at all to 
the skills academics need. You better score extremely high on the Law School 
Admissions Test (LSAT) (or now at some schools the GRE). If you don’t 
score toward the very top, you will likely not be admitted to a Top Ten-ranked 
law school. And if you don’t attend a Top Ten-ranked law school, no matter 
what you accomplish during your time at the school you do attend (even one 
ranked among the top twenty) or afterward, your chances of teaching at a Top 
Ten-ranked law school are virtually nonexistent. The reality is that by far the 
most important credential one needs to teach at a Top Ten-ranked law school 
is to attend a Top Ten-ranked law school. The elite teaching the elite, who will 
then teach more elites.
Most prominent law schools publicly claim to strive for law faculty diversity. 
Both Harvard and Yale recently issued self-study reports, parts of which 
discussed faculty diversity. The Yale report said that “students were concerned 
not just with ethnic, racial, and gender diversity, but with methodological and 
political diversity.”2 
1. Tracey E. George & Albert H. Yoon, The Labor Market for New Law Professors, 11 J. Empirical 
lEgal Stud. 1, 16 (2014).
2. John Forman, Jr. Et al., rEport oF thE committEE on divErSity and incluSion 5 (Mar. 
18, 2016), https://law.yale.edu/system/files/documents/pdf/Deans_Office/diversity_
inclusion_report_3_23_2016_to_community.pdf.
Journal of Legal Education, Volume 68, Number 3 (Spring 2019)
Eric J. Segall is Kathy and Lawrence Ashe Professor of Law at Georgia State University College 
of Law. Adam Feldman is the creator of the Supreme Court Blog, Empirical SCOTUS, and 
recently completed postdoctoral work through Columbia Law School. Segall wants to make clear 
that he has spent twenty-six happy years at Georgia State and has never tried to change schools. 
Feldman received his law degree from a Top Ten law school—UC Berkeley School of Law (Boalt 
Hall). We mention this because this essay might be viewed by some critics as sour grapes. It most 
emphatically is not. We hope it is more like good red wine.  
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Harvard’s report said that “a diverse faculty is important not just so that 
students can see themselves in the people who teach, advise, and mentor them 
and be assured that there are faculty who understand their differences. It is also 
essential to advancing knowledge broadly and to pursuing ideals of justice in 
ways that recognize and include the experiences, aspirations, and needs of an 
even more diverse world.”3 Other schools have issued similar reports.4
According to our examination of law school faculty, however, most schools 
are not meeting these goals. We examined law faculty profiles at the U.S. News 
2019 top twenty-five law schools, as well as at a number of other schools across 
the country, looking at a variety of characteristics.5 
Although it is not the focus of this essay, we did review the faculties’ gender 
ratios and found that only thirty percent of those faculty members are women. 
(We also attempted to observe faculties’ racial diversity but could not accurately 
code many faculty members’ races based on their faculty profiles.) Much has 
been written, and more needs to be written, about the need for greater gender 
and racial diversity in law school hiring. But this essay emphasizes a different 
aspect of diversity, though this aspect also affects gender and racial diversity.6
We examined where law professors received their legal education. 
According to their websites, Harvard and Yale have 152 tenure-track or tenured 
faculty with law degrees from domestic institutions (some faculty have other 
advanced degrees or degrees from institutions outside the United States). All 
but three of those 152 faculty members received their law degrees from U.S. 
News Top Ten-ranked law schools (and one of those faculty is a law librarian). 
This means that graduates of any of the other approximately 190 accredited 
American law schools outside the Top Ten have virtually no chance of being 
tenured professors at Harvard or Yale, regardless of their success in law school 
and/or post-degree achievements. 
The numbers are not considerably different at other Top Ten-ranked schools. 
Stanford and Chicago combined have only seven tenure-track or tenured 
professors from outside the Top Ten schools (and four went to Northwestern, 
which was a Top Ten law school, according to the 2018 rankings), while 
Michigan and Pennsylvania have a total of six. All told, almost ninety-five percent 
3. BrucE h. mann Et al., rEport oF thE taSk ForcE on acadEmic community and StudEnt 
EngagEmEnt 6 (June 29, 2017), https://hls.harvard.edu/content/uploads/2017/07/Task-
Force-on-Academic-Community-Student-Engagement-Report-Addendum.pdf.
4. See, e.g., univErSity oF pEnnSylvania’S action plan For Faculty divErSity & ExcEllEncE 
(May 31, 2012),https://www.law.upenn.edu/cf/faculty/PennLawDiversityActionPlanFinal.
pdf; univErSity oF WaShington School oF laW, StratEgic plan For divErSity, 
incluSion, Equity and multiculturaliSm (last updated Oct. 2017), https://www.law.
uw.edu/media/140870/diversityplan.pdf.
5. U.S. News rankings have become the industry standard for comparing schools in most 
fields, including law. See, e.g., Mitchell Berger, Why the U.S. News and World Report Law 
School Rankings Are Both Useful and Important, 51 J. lEgal Educ. 487 (2001).
6. See, e.g., LaWanda Ward, Female Faculty in Male-Dominated Fields: Law, Medicine, and Engineering, 143 
nEW dirEctionS highEr Educ. 63 (2008).
The Elite Teaching the Elite: Who Gets Hired by the Top Law Schools?
616 Journal of Legal Education
of the professors at the ten highest-ranked schools who received law degrees 
in the United States obtained their degree at one of those same schools. The 
following graph shows the relative percentages of professors at Top Ten-ranked 
schools and schools not ranked in the Top Ten who went to a Top Ten school: 
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Focusing on absolute numbers, below is a breakdown of law schools 
attended by professors at Top Ten-ranked schools for all schools with two or 
more graduates.
The following figure shows the percentage of law school faculty at each of 
the Top Ten-ranked schools who attended a Top Ten law school.
The Elite Teaching the Elite: Who Gets Hired by the Top Law Schools?
618 Journal of Legal Education
As the figure shows, almost ninety-five percent of the faculty members at 
each of the Top Ten schools who attended a U.S. law school attended a Top 
Ten law school. The percentage of professors who went to Top Ten law schools 
for the remainder of the top twenty-five schools is a bit lower, but even in those 
schools, more than eighty percent of the faculty attended a U.S. News-ranked 
Top Ten school. In other words, there is little diversity on the plane of law 
schools attended at our country’s twenty-five top-ranked schools.
We also researched schools outside the Top Ten on a stratified random 
basis to select schools ranked thirty to forty, forty to fifty, fifty to sixty, sixty to 
seventy, and seventy to eighty. The following figure shows the percentage of 
faculty at the non-Top Ten law schools we examined who attended Top Ten 
law schools.
Among non-Top Ten schools there is still a strong bias toward hiring 
applicants who went to Top Ten law schools; but this bias—or at least a school’s 
ability to hire applicants who attended Top Ten institutions—decreases as we 
move away from the Top Ten-ranked schools. When we isolate schools ranked 
between eleven and twenty-five, just under eighty percent of the faculties that 
attended U.S. law schools went to Top Ten-ranked schools. Looking at faculty 
from schools we sampled outside of the top twenty-five, only about forty-four 
percent of professors who attended a domestic law school went to a Top Ten 
school.
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Is it important that the twenty-five top-ranked schools hire eighty percent of 
their faculty from the Top Ten-ranked schools? We think it is. By limiting their 
hiring to the most elite schools (and just two, Harvard and Yale, account for 
more than fifty percent of all faculty in these schools with U.S. law degrees), 
these schools limit the range of pedagogical choices they adopt and provide 
for their students. There are many ways to teach law and set priorities for law 
students. The top-ranked schools do not have a monopoly on the best legal 
education methods. Moreover, for better or worse, how these schools teach 
future lawyers has a great impact on the other 165 or so accredited law schools, 
but the law school experiences of their faculties are mostly limited to ten law 
schools. This inbreeding stunts creativity, experimentation, and growth, and 
might even prioritize the theoretical over the practical to the detriment of 
the legal profession. Moreover, since law schools do not teach law students 
how to teach, professors at Top Ten-ranked schools have only their shared 
experiences to rely on, which likely makes it difficult to improve how they 
teach their students.
One Yale Law professor told us she was not surprised that Yale turns out 
so many professors, as the Yale faculty focus on preparing their students to be 
academics. When we asked how they do that, she said by teaching them how 
to write good law review articles. We are skeptical that writing such articles 
should be the primary measurement by which law professors are judged. 
Moreover, there are data to suggest that “inbred” law professors, those whose 
first teaching jobs are at the same school from which they earned their J.D., 
have less scholarly impact than non-inbred professors.7 Given how often the 
Top Ten schools hire their own, these data suggest that, if the goal is to identify 
people who will become the most influential scholars, perhaps hiring entry-
level applicants from other schools would be a better tool to achieve that goal.
There are many reasons that nepotism is often strongly discouraged in 
both private and public employment. One of those reasons is fairness. Are the 
faculty at the top-ranked schools willing to argue that only graduates of those 
schools are the most qualified to teach at those schools? There are hundreds 
if not thousands of graduates of excellent law schools outside the Top Ten 
who have had distinguished legal careers. Yet they have virtually no chance 
of obtaining a tenured position at a Top Ten-ranked school. For example, as 
of the time of this writing, none of the 750 faculty members at the Top Ten 
schools attended Boston College, Cornell, or the University of Georgia, all 
ranked in the top thirty law schools by U.S. News.
Two Harvard professors suggested to us that one reason they hire so few 
non-Top Ten graduates is that hiring is quite time-consuming, Harvard can 
fill its needs through looking almost exclusively at graduates of the Top Ten 
schools, so there is little reason to extend the searches to other criteria. One 
must ask, however, whether the school would take the same position regarding 
other diversity factors. We seriously doubt it. The reality is that most high-
7. See Theodore Eisenberg & Martin T. Wells, Inbreeding in Law School Hiring: Assessing the Performance 
of Faculty Hired from Within, 29 J. lEgal Stud. 369 (2000).
The Elite Teaching the Elite: Who Gets Hired by the Top Law Schools?
620 Journal of Legal Education
ranked schools do not see diversity in law school attended as an important 
diversity factor.
Justice O’Connor once explained why diversity in the student bodies of 
elite law schools is so important:
[U]niversities, and in particular, law schools, represent the training ground 
for a large number of our Nation’s leaders . . . . Individuals with law degrees 
occupy roughly half the state governorships, more than half the seats in the 
United States Senate, and more than a third of the seats in the United States 
House of Representatives . . . . The pattern is even more striking when it comes to highly 
selective law schools. A handful of these schools accounts for 25 of the 100 United States Senators, 
74 United States Courts of Appeals judges, and nearly 200 of the more than 600 United States 
District Court judges.8
These future judges and political leaders are being taught by the graduates 
of only a handful of law schools—ten, to be precise. Our country and our 
government would be well-served by leaders with more diverse backgrounds. 
All nine Supreme Court Justices went to one of these ten schools (eight out 
of nine graduating from Harvard or Yale), and they were taught law almost 
exclusively by graduates of those ten law schools. 
Finally, there may well be substantial discriminatory racial and class 
elements to the hiring practices of these schools. To attend an elite law school 
(a prerequisite to teaching at one), one must have extremely high college grades 
and LSAT scores. According to 2018 rankings, the median LSAT for Yale and 
Harvard admits was 173.9 The median GPA for admits to those schools was 
3.93 and 3.86, respectively. The Top Five schools all had median LSATs at 170 
or above for admitted students. The lowest median LSAT for admits to a Top 
Ten school was 166, for UC Berkeley, and the lowest median GPA was 3.7, for 
Columbia.
The LSAT, at most, might predict first-year law school grades and perhaps 
bar exam performance.10 But no one has ever suggested that there is any 
relationship between the LSAT and excellence as a law professor. Moreover, 
the LSAT is biased across both race and class lines. As to race, one study found 
that “[e]ven when diversity is a factor in admission decisions, the negative 
impact of the LSAT is so severe that among applicants with approximately the 
8. Grutter v. Bollinger, 539 U.S. 306, 322 (2003) (emphasis added) (citations omitted).
9. U.S. News & World Report 2018 Law School Rankings, https://www.usnews.com/best-graduate-
schools/top-law-schools/law-rankings (last visited Aug. 1, 2018). The U.S. News and World 
Report website lists the most recent version of their law school rankings and limits access to 
older iterations. The website currently hosts the 2019 edition which is slightly different from 
that in 2018, which we used for this article. 
10. See, e.g., Katherine A. Austin, Catherine Martin Christopher & Darby Dickerson, Will I Pass 
the Bar Exam: Predicting Student Success Using LSAT Scores and Law School Performance, 45 hoFStra l. 
rEv. 753 (2017); David A. Thomas, Predicting Law School Academic Performance from LSAT Scores and 
Undergraduate Grade Point Averages: A Comprehensive Study, 35 ariz. St. l.J. 1007 (2003).
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same GPAs, whites consistently have the greatest chance of being accepted 
into ABA law schools.”11 
The LSAT also results in a huge class bias. An article in The Atlantic put this 
sad but true statement in its title: “How the LSAT Destroys Socioeconomic 
Diversity.” To do well on the LSAT, preparation classes are extremely 
important, and their average cost for in-person sessions is $1300. According 
to this article:
While law schools are steadily becoming more racially and ethnically diverse, 
they remain overwhelmingly upper-middle class. Only 5 percent of students at elite 
law schools come from families that fall in the bottom half of the socioeconomic spectrum—a 
number that has hardly changed since the 1960s. The Logic Games section [of the 
LSAT] contributes to this lack of socioeconomic diversity. If you can’t afford 
to adequately prepare, it’s a lot harder to earn the LSAT score you need to get 
into a Top 14 school. The vast majority—180—of the 200 accredited U.S. law 
schools can’t find jobs for 80 percent of their graduates. That means that a low 
score on Logic Games might stop you from becoming a lawyer.12
Substitute the word law professor for “lawyer” and the LSAT plays an 
even larger role in eliminating many excellent prospective teachers from 
consideration based on their socioeconomic status. This point cannot be 
emphasized enough. A student from a top-ranked college with a 4.0 GPA, but 
only an average-plus LSAT score, has almost no chance of gaining admission to 
a Top Ten law school. This is apparent from using the Law School Admission 
Council (LSAC) online calculator that shows the likelihood of admission 
to various schools based on a student’s GPA and LSAT scores.13 Once they 
attend a non-Top Ten school, their chances of becoming a law professor at a 
Top Ten school are remote regardless of their post-education achievements. In 
effect, the LSAT, because it strongly affects the law school admission process, 
also strongly affects the law professor hiring process. The test was never meant 
for that purpose, and using it that way results in substantial class bias.
This class-based bias has not gone unnoticed by other scholars. As Professor 
Higdon found a few years ago:
the students who attend top-tier law schools are overwhelmingly representative 
of the elite socioeconomic class—often times as a result of merely being born to 
parents who were also a member of that class. As such, hiring faculty members 
11. Aaron Salaymeh, Artificial Selection: LSAT Bias Affects Us All, harv. l. rEc. (Sept. 25, 2002). 
12. Caroline Kitchener, How the LSAT Destroys Socioeconomic Diversity, thEatlantic.com (Oct. 18, 
2016), https://www.theatlantic.com/education/archive/2016/10/the-lsat-is-rigged-against-
the-poor/504530/[https://perma.cc/AU3J-HUF9] (emphasis added).
13. LSAC Official Guide to ABA-Approved Law Schools, UGPA/LSAT Search, https://
officialguide.lsac.org/Release/OfficialGuide_Default.aspx (last visited May 10, 2019). 
Several top twenty-five schools including Yale and Harvard do not participate in this 
calculation. The full list of non-participating schools can be viewed at https://officialguide.
lsac.org/Release/UGPALSAT/UGPALSAT_OptOut.aspx.
The Elite Teaching the Elite: Who Gets Hired by the Top Law Schools?
622 Journal of Legal Education
from primarily those ranks undermines a law school’s ability to achieve 
socioeconomic diversity on its faculty and instead helps perpetuate a class-
based monopoly within the legal academy to the detriment of all involved.14
Unless Top Ten-ranked schools are willing to say that only students who 
graduated from Top Ten school are easily the most qualified to teach at their 
schools, a doubtful proposition at best, the obsessive focus by elite schools 
on where law professor applicants received their degree should be seriously 
reexamined. Otherwise, these law schools will continue to comprise faculties 
drawn mostly from the elite classes resulting in an endless cycle of elite law 
professors handing down elite values to elite law students. The teaching of law 
should be better than that.
14. Michael J. Higdon, A Place in the Academy: Law Faculty Hiring and Socioeconomic Bias, 87 St. John’S 
l.rEv. 171, 175 (2013) (citation omitted).


The Elite Teaching the Elite: Who Gets Hired by the Top Law Schools?

Fisher, George

Evidence by the Video Method

Not a member yet

Line-Drawing

From the Editors

Book Review of How Constitutional Rights Matter

Preparing Lawyers for Practice: Developing Cultural Competency, Communication Skills, and Content Knowledge through Street Law Programs

Book Review of Lawyering Skills in the Doctrinal Classroom: Using Legal Writing Pedagogy to Enhance Teaching Across the Law School Curriculum

Of Moore, Players and Owners, and Consequentialist Pedagogy: Can the Center Hold?

Safeguard or Barrier: An Empirical Examination of Bar Exam Cut Scores

Reframing Faculty Pro Bono

The Elite Teaching the Elite: Who Gets Hired by the Top Law Schools?

Evidence by the Video Method

2,927

2,929