Yale And Harvard Law To U.S. News: Drop Dead

Note the UPDATES at the end: several other schools have already followed suit.

Wasserstein Hall at Harvard Law School (photo by David Lat). Yale Law deserves credit for leading the charge against U.S. News, but my YLS photos have been overused.

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

Yesterday brought huge news to the world of legal education: Yale Law School withdrew from the highly influential U.S. News law school rankings, and Harvard Law School followed shortly thereafter. The schools announced the decisions on their websites, posting statements from YLS Dean Heather Gerken and HLS Dean John Manning of HLS. Dean Gerken also gave an interview to the Wall Street Journal, which broke the news on Wednesday morning.

Both schools have fared well in the rankings over the years. Yale has been #1 in the U.S. News Best Law Schools rankings since their inception in 1990, and Harvard has been in the top three for every year except two (including last year, when it dropped to #4). But their deans concluded that any reputational benefits to their own institutions were far outweighed by the negative consequences of the rankings for legal education as a whole.

“I have a big agenda as dean, and this is a part of it,” Dean Gerken told me in a telephone interview yesterday. “I want Yale Law School to drive the conversation about the future of legal education—and U.S. News stands in the way of reform.”

Problems with the U.S. News rankings

As Dean Gerken explained in her statement, “The U.S. News rankings are profoundly flawed—they disincentivize programs that support public interest careers, champion need-based aid, and welcome working-class students into the profession. We have reached a point where the rankings process is undermining the core commitments of the legal profession.”

For example, take how the rankings penalize schools that support postgraduate public-interest work. U.S. News considers law school employment outcomes in its rankings, and it heavily discounts school-funded positions. Because of its strong commitment to public service and its deep coffers, Yale Law funds numerous public-interest fellowships for its graduates—and this hurts YLS in the rankings. As noted in Dean Gerken’s statement, “Even though our fellowships are highly selective and pay comparable salaries to outside fellowships, U.S. News appears to discount these invaluable opportunities to such an extent that these graduates are effectively classified as unemployed.”

Why does U.S. News discount these positions? As I wrote back in 2018—commenting on YLS’s performance in Above the Law’s law school rankings, a leading alternative to U.S. News—school-funded positions historically were abused by lower-ranked schools to make their awful job numbers look better. But a policy of discounting school-funded jobs, which makes sense when applied to many if not most of the 192 ranked law schools, doesn’t make sense when applied to Yale—whose graduates could easily find Biglaw or other gainful employment, but voluntarily choose to take advantage of YLS’s largesse to pursue public-interest work.

This might seem like a discrete and minor issue, but it actually goes to a more fundamental problem with the rankings: what Dean Gerken’s statement criticizes as U.S. News’s attempt to rank almost 200 law schools “with a small set of one-size-fits-all metrics that cannot provide an accurate picture of such varied institutions.” See also this 2019 Los Angeles Times op-ed by Professor Akhil Reed Amar of Yale Law, who criticized the totalizing approach of the rankings and argued that despite YLS’s many strengths, it’s not the “best” school for every applicant.¹

The damage from flaws in the U.S. News methodology extends beyond the abstract realm of reputation into the real world. Because the U.S. News rankings are so influential in shaping where students (and their tuition dollars) end up, schools “manage to the rankings,” adopting policies designed to help them move up in rank. But some of these policies can be harmful to schools, students, or both.

For example, because the U.S. News rankings place so much weight on LSAT/GRE scores and GPAs—about 20 percent of a law school’s overall ranking—schools fixate on these numbers. They overlook students who don’t have great stats but show promise in other ways, including students from modest means who can’t afford expensive test-prep classes, and they throw financial-aid dollars at students with the best numbers, not the greatest need.

Dean Gerken didn’t call out any school by name in her message. But I immediately thought of the Rubenstein Scholars Program at the University of Chicago Law School, the most well-known merit-scholarship program, which provides full-tuition scholarships plus living stipends to outstanding law students—generally students with super-high GPAs and LSATs. Every year the Program draws to Chicago some number of top students who would otherwise have gone to Harvard, Yale, or Stanford. In the latest U.S. News rankings, Chicago leapfrogged Harvard to take the #3 spot—and I wonder whether the Rubenstein Scholars Program helped.²

These are just some examples of problems with the U.S. News law school rankings specifically and educational rankings more generally. For more—and there’s a lot more out there—I refer you to excellent critiques by Princeton president Christopher Eisgruber in the Washington Post (2021), YLS professor Akhil Amar in the Los Angeles Times (2019), former K&L Gates chairman Peter Kalis in the National Law Journal (2008), and bestselling author Malcolm Gladwell in the New Yorker (2011). Like me, Amar and Kalis have criticized the current YLS administration on several fronts, including free speech and intellectual diversity—but they agree with Dean Gerken that the rankings as currently constituted do more harm than good.

Reactions to YLS’s move

Perhaps not surprisingly in light of these criticisms, response to YLS’s withdrawal from the rankings has been overwhelmingly positive, Dean Gerken told me. When we spoke yesterday, she said she has been deluged with calls and emails from supporters of the pullout, from both within and beyond the Yale Law community.

One such supporter is Professor Ian Ayres, who wrote to me, “This is a proud day for the school. The faculty is overwhelmingly supportive of this move because we care deeply about issues of public service and need-based aid. The U.S. News ranking system makes it harder for law schools to take action on these issues without paying an undeserved price.”

And I don’t believe this is just spin. I interviewed current and former faculty, administrators, and students for this story, and most responses were positive. I’ve also been following conversations among YLS alumni on LinkedIn and Facebook, where supporters outweigh critics, and in a Twitter poll I posted yesterday, approximately two-thirds of respondents expressed support for Yale’s pullout.

What does U.S. News have to say for itself? Eric Gertler, executive chairman and CEO of U.S. News, issued this statement:

The U.S. News Best Law Schools rankings are for students seeking the best decision for their law education. We will continue to fulfill our journalistic mission of ensuring that students can rely on the best and most accurate information in making that decision. As part of our mission, we must continue to ensure that law schools are held accountable for the education they will provide to these students and that mission does not change with this recent announcement.

Reading between the lines, Gertler’s message confirms what former Northwestern Law dean Daniel Rodriguez told me over Twitter: “Unless @usnews abandons current policy, they will impute rankings from generally available data. There is precious little reason to expect that @YaleLawSch wouldn't retain its top spot.”

But might YLS be more vulnerable than Professor Rodriguez suggests? As noted by Dean David Yellen of the University of Miami School of Law and Justin Kane of Spivey Consulting (which advises law schools on U.S. News rankings), when schools withdraw, i.e., stop providing U.S. News with their non-public information, U.S. News comes up with “placeholder values” for it (as explained in this Spivey Consulting blog post). And when schools don’t play ball with U.S. News, forcing the magazine to use “placeholder values,” they tend to drop. When Columbia withdrew from the most recent U.S. News rankings of national universities, it dropped from #2 to #18. A similar thing happened to Reed College years ago, which stopped participating and went from the top to the bottom quartile of national liberal-arts colleges.

In the first year of the U.S. News rankings, Harvard Law didn’t cooperate; it wound up as #5. The following year, HLS coughed up its data and broke into the top three, where it remained until last year. So I wouldn’t be shocked to see YLS and HLS drop in the rankings after Bob Morse, the U.S. News rankings guru cum enforcer, breaks their kneecaps with “placeholder values” (especially for “expenditures per student,” a non-public data point that has been crucial to YLS’s high ranking over the years).

Critiques of YLS’s move

As discussed above, overall response to the Yale and Harvard Law decisions has been positive. But Dean Gerken’s decision also has critics—in terms of substance, process, and motives.

First, let’s talk substance. In the world beyond YLS and HLS, some have criticized the schools’ withdrawal as threatening the rankings system, which these critics argue has utility for schools beyond the super-elite. The top-14, top-6, and top-3 schools barely change, so one could argue that the U.S. News rankings offered little informational value as to those schools. The entire so-called “T14” could secede, and not much would change; the old advice of “if you get into a T14 school, go” would still apply.

But beyond the T14, some schools have made dramatic jumps over the years, as reflected in their U.S. News rank—e.g., George Mason/Scalia Law or Pepperdine Law, former fourth-tier schools that are now #30 and #52, respectively. If YLS and HLS end up killing the law-school rankings, with U.S. News either leaving the space or making the ranks much more imprecise, how can these other schools demonstrate their progress? And how can law-school applicants make informed decisions when choosing between non-T14 schools?

Other observers have criticized the rankings pullout as part of a larger assault on standardized test scores and other traditional barometers of merit. If U.S. News changes its rankings to deemphasize or eliminate LSAT/GRE and GPA factors, which YLS and HLS have criticized U.S. News for fetishizing, how can applicants from less-privileged backgrounds—applicants who didn’t go to Ivy League undergraduate institutions, who don’t have well-connected parents, or who don’t have well-paid law school admissions counselors—distinguish themselves?

Within the YLS community, I have heard from some YLS students and alumni who worry about what it might mean for the value of a YLS degree as a credential. This concern generated mockery on Twitter—cue the small violins—but let’s hear them out. Here’s an alum opposed to the change:

I don’t think a lot of supporters [on the YLS alumni Facebook group] fully understand the ramifications of the loss of our #1 rank or that our professional and peer assessments have been dropping steadily over the last few years. This is supposed to be an institution of excellence, and as much as people hate that, rank matters. It hurts YLS more than any other school to pull out of the rankings. The rankings legitimized our quirkiness. No matter what criticism people threw at our unique learning model, we could always say we are #1, and the hecklers would shut up.

And here’s a current student:

Count me among the students disappointed in this move. While the USNWR are of course flawed, they were a useful entry point for applicants like me who don't have any lawyer relatives and didn't know anything about the law/legal market when applying to law school. Public rankings are useful to get a sense of, roughly, what the state of play is for students/applicants who lack that background knowledge.

I raised this point with Dean Gerken, who said that she made the change with precisely these applicants in mind—applicants who might not have lawyer relatives or who might be first-generation professionals. She said that although YLS will no longer provide its data to U.S. News—a private, for-profit magazine—the school will continue to provide important consumer data to applicants and prospective students. This is a subject of great interest to Dean Gerken—who has focused her work as a scholar on how better information and greater transparency can improve democratic decision-making—and she and other YLS administrators will be thinking about what additional information they can provide to help guide applicants, especially applicants who are new to the world of law.

Second—and not surprisingly, since we’re dealing with a law school, after all—there were procedural objections from within the Yale Law community. The claim is that Dean Gerken made an important and consequential decision without sufficiently consulting YLS faculty, students, alumni, or other stakeholders.

Based on my reporting, I can confirm that the decision to withdraw from the rankings was made by Dean Gerken. No faculty vote was taken or required to be taken; it was a decanal decision, i.e., her call to make as dean under YLS rules and regulations. But even though it was her decision, Dean Gerken told me she consulted “very broadly.” She declined to be more specific, but I know from faculty members that she sent them a message claiming that she spoke with every recent dean, deputy dean, and senior advisor to the dean still at YLS.

In addition, at a faculty retreat last May, Dean Gerken raised the issue of the rankings. Specifically, she raised the possibility that Yale’s reign atop the rankings might not last forever, mentioned that some policy changes the school might want to implement could be detrimental to YLS’s ranking, and asked the faculty, in a nutshell, whether they cared. The ensuing discussion was brief—and sources disagreed on why. One felt that the topic deserved more debate and was given short shrift, but another felt that it was brief because the vast majority of faculty members agreed that YLS should decide how to run itself without regard to any rankings impact.

I did hear from a few faculty members who said that they were not personally consulted by Dean Gerken (i.e., in a one-on-one way, excluding the discussion at the retreat). Some students also complained that she didn’t seek their input:

Dean Gerken did not consult the student body on this decision—there was not so much as a whisper of this happening before Dean Gerken sent out her explanation in an email at 9:24 this morning. For the record, this means that Dean Gerken's explanation to the student body came after the Wall Street Journal already broke the story—Melissa Korn first tweeted out her WSJ article at 9:08. I found out through the WSJ, not through Dean Gerken's email, and I was completely blindsided. This failure to communicate and consult with her students and faculty strikes me as a gross abdication of leadership in and of itself.

I raised this objection with one professor (who wasn’t consulted but still supports the move). This faculty member said they were not particularly troubled by the fact that the dean didn’t consult a wider group of people, noting that she understandably didn’t want the information to leak. I do think that in terms of how the news cycle played out yesterday, Dean Gerken and YLS benefited from the element of surprise. And it’s also possible that Dean Gerken didn’t want some other school—e.g., Harvard, which followed Yale’s move in a matter of hours—to be the first mover.³

Finally, some sources questioned Dean Gerken’s motives. One faculty member who holds critical views of Gerken’s deanship but supports the rankings withdrawal told me, “Heather did the right thing here, even if she did it for the wrong reasons.”

And what might be some of those reasons? Some felt that Dean Gerken wanted out of the rankings because of how they served as a kind of check on her administration. As one student put it:

[Dean Gerken’s] decision to pull out at this time raises several red flags. It has the effect of removing the primary tool of accountability that offered some constraint on the Yale Law School administration's bad behavior last year. USNWR factors in peer assessments into its rankings, and YLS did not have a good year last year. The events of last semester exposed Dean Gerken as slow to act in defense of free speech and showcased the problems of the lack of intellectual diversity at YLS. YLS's reputation was slipping, and people were whispering that maybe YLS would finally drop to #2. Instead of working to repair her institution's reputation, such as by hiring a conservative public-law professor, it seems Dean Gerken has decided to take her ball and go home.⁴

And from a second student:

This is like playing the game of Monopoly, realizing that you are going to lose, and flipping over the board. The U.S. News rankings were one of the only external checks on the arbitrary power of the administration. Without having to adhere to some generally accepted standard, the administration basically has free reign to pursue its misguided agenda with little to no real accountability.

In terms of specific aspects of that agenda, some students agreed with Professor Dan Epps, who on Twitter hypothesized that Yale plans to make major changes to admissions in the wake of the expected Supreme Court affirmative action rulings, “and they are doing this proactively rather than dealing with any rankings implications later.” These students speculated—and again, in fairness to Dean Gerken, it's all speculation—that not having to worry about LSAT and GPA data dragging down its U.S. News rank will allow YLS to either (a) continue to use racial preferences in admissions or (b) water down its academic credentials.⁵

Furthermore, as reflected in the “taking her ball and going home” and “flipping over the Monopoly board” comments, some sources suggested that Dean Gerken withdrew from the rankings because she feared that YLS was about to lose the #1 spot it has held for more than three decades—and she didn’t want that to happen on her watch, lest it tarnish her deanship (and her prospects of becoming a university president). See, e.g., this Reddit post, YLS is working so hard to pre-empt its eventual fall out of #1 on USN.

But other sources pushed back on such speculation. One professor told me that although Dean Gerken mentioned at the faculty retreat that there was no guarantee that Yale would remain #1, there was no sense within the faculty that YLS’s #1 ranking was at imminent risk. Instead, this source told me, “This is clearly part of a larger and deeper commitment on her part toward leadership in the law school industry when it comes to fairness, welfare, and equity.” (As other examples, this faculty member cited Dean Gerken’s involvement in rolling out a new clerkship hiring plan and launching the Hurst Horizon Scholarship Program, designed to “shame” other top schools into focusing more on need rather than “merit”—i.e., high LSATs and GPAs—in financial aid.)

The security of YLS’s place in the rankings

So was Yale Law School in serious danger of losing its #1 spot? I posed this question to a rankings expert who gave me this very detailed feedback (skim if you like—the TLDR version is “maybe, probably not this year, possibly in the next few”):

I've seen that speculation. To set the stage, Yale was 2 points (out of 100) ahead of the #2 school (Stanford) and 4 points ahead of the #3 school (Chicago). Stanford has been 2 points behind Yale for years. So, pretty close. I think there are three realistic concerns Yale could have:

1. The Peer Assessment and Lawyer/Judge Assessment scores. Those are two distinct categories. Peer Assessment gets 25% weight, Lawyer/Judge Assessment gets 15% weight. I've seen people say that because of its recent controversies, Yale will lose ground in those two, voters will punish them. That's possible. I can't speak for voters, I'm certainly not one haha. However, there are two problems with that.

First, the Lawyer/Judge scores are three-year averages. So if voters just started punishing Yale in this year's voting, it'd take a bit for that to fully reflect in the rankings. If they started voting Yale down last year, you'd start really seeing it reflected this year.

Peer Assessment is different. Yale may have been spooked by the fact that its Peer Assessment score declined from 4.8 last year to 4.6 this year. Typically those scores are pretty sticky, so seeing a drop like that might have raised concern. If I was Yale, I would have been somewhat worried that my Assessment scores would go down. Given how heavily weighted these categories are, if they did go down that would be problematic for Yale. If you want a source for the peer assessment scores, here is this year, here is last year. 

For what it's worth, Yale is not always #1 in the Assessment voting. Other schools do as well or better.

2. Employment. The 10-month employment outcomes get 14% weight, next highest after the Assessment scores. Yale mentioned that US News "punishes" schools that place grads in jobs like fellowships. That's... sort of correct. Basically, for the however many ABA categories of job outcomes there are, US News assigns a weight. The full-time, long-term, JD-required/advantage jobs get full weight. Everything else is less than full weight, to varying degrees that US News doesn't publicize. Yale's probably referring to their graduates who are in full-time, long-term, JD-required/advantage jobs that are funded by the law school. Those are discounted, but not so much that they are "essentially unemployed" or however Yale phrased it. Yale typically places a lot of graduates in those jobs, which because it's Yale are almost always really great jobs most of us would kill to have. But US News does discount them.

For 2021 graduates (who would be used to calculate the upcoming rankings), Yale had a pretty high rate of graduates who were in those positions: 13.8% compared to 7.4% and 8.8% the prior two years. Yale also had 0.9% in short-term, full-time JD-required/advantage funded jobs this year, which they haven't had recently (those jobs get even less weight). Yale also had an almost 10% lower full-time, long-term, JD-required/advantage not school funded (the full-credit stuff) compared to last year. That is a lot, when it comes to rankings. I think Yale might be overestimating how much it could hurt them, based on their comments, but yeah, this would have some negative impact this year. Is it stupid? Absolutely. But it would hurt.

3. Expenditures for instruction. Gets 8.75% weight. Yale has a lot of money. Yale spends a lot of money. However, Yale was not the #1 spender this year, for the first time ever. If Yale anticipated a continued decline in expenditures for instruction or that other schools would catch up to them at least somewhat, then that would be deeply problematic for them. Is this a stupid metric? Yes. I wish they'd aimed more criticism at this one.

So put all that together, and were they at risk? I'd say it's possible, but if you made me bet on whether they'd be #1 this year, I'd still bet on them holding on. I wouldn't bet much, though. A lot comes down to unknowables. Yale would know how much they spent, which would be useful. Then how do they think Assessment voters are going to react to their scandals? I think it's plausible they'd be concerned there would be enough backlash for some negative impact. Combine some negative Assessment results with the employment stuff... maybe they thought it was 70/30 they would keep #1 this year, but didn't want to risk it.

For me, the timing is what kind of... stinks? Yale gets a lot of bad press, their ranking might plausibly be at risk for the first time, and suddenly now they're worried about things in the rankings that have been issues for years? Decades? I mean, idk, maybe I'm cynical, but then you throw in that Harvard pulls out, coincidentally the same year that its own ranking dropped behind Chicago.…

I'm glad they did, because I think the rankings have caused a lot of problems, and this is the best chance to eliminate their influence. I'm not willing to applaud Yale for what I personally think was a decision probably motivated by self-interest. But I won't complain because I like the outcome.

“I won’t complain because I like the outcome” might be where I wind up myself. I share some of the concerns about process and motive, but my current view is that it’s probably a good thing that Yale and Harvard Law left the U.S. News rankings. And it would probably be a good thing if other top schools—Stanford Law, the T6, or the T14—follow them. But I’m open to persuasion, as I (almost) always am, and I welcome your thoughts.

I lived much of my early life obsessed with rankings, prestige, respectability, and the opinions of others. I picked my college and law school based on the U.S. News rankings. I picked my law firm based on the Vault rankings. I didn’t come out until I was almost 30. I know how much reputation can matter to people.

But I’m much happier today, ever since stepping off the legal-career treadmill, coming out of the closet, and caring less about the views of others. And maybe it wouldn’t have been a bad thing if, with apologies to Rousseau, someone had forced me to be free—and forced me to realize, at an earlier point in life, that self-worth doesn’t come from a ranking or depend on what people think of you.

[UPDATE (4:24 p.m.): Add Berkeley Law to Yale and Harvard. Here’s the message from Dean Erwin Chemerinsky, declaring that “there are aspects of the US News rankings that are profoundly inconsistent with our values and public mission.”]

[UPDATE (11/18/2022, 12:03 p.m.): Georgetown Law is out as well. Here’s the message from Dean William Treanor, stating that “[i]n accordance with our values as a school, Georgetown Law will not participate in the U.S. News ranking.”]

[UPDATE (11/19/2022, 1:06 a.m.): Fairly late in the day on Friday, two additional schools dropped out, Columbia followed by Stanford.]

[UPDATE 11/22/2022, 4:20 p.m.): More schools have withdrawn from U.S. News, including two in the T14, Michigan and Northwestern, and a school outside the T14, UCLA. I believe that brings the total to nine schools, including eight of the T14.]

[UPDATE (11/24/2022, 8:18 a.m.): I updated and adapted this post and turned it into a story for Slate, which features less YLS “inside baseball” and more big-picture reflections on the rankings and legal education. And I’ll continue to track the schools opting out (and staying in) on my Twitter feed.]

1. My idea: how about “interactive” rankings? You would weight different criteria—e.g., Biglaw placement, clerkship placement, debt upon graduation, strength in a particular area of law—and you would then get a customized ranking of the law schools that best meet your criteria.

2. Yes, I know, some Rubenstein Scholars—including some trotted out in Chicago Law’s press release—do have financial need. But as I explained in the comments to my April story about the latest U.S. News rankings, because the Rubenstein Scholarships are not explicitly need-based (unlike Yale’s Hurst Horizon Scholarships), at least some Rubenstein Scholars will have little to no financial need—and some might even come from wealth.

If I were David Rubenstein or Chicago Law, I would take the money from the program and put it all into need-based aid. And if Chicago Law no longer has a rankings-based incentive to chase high GPAs and LSATs—perhaps if Stanford Law joins Harvard Law in opting out of the rankings, as many observers expect—maybe Chicago, secure in its new #1 position, will make Rubenstein Scholarships need-based.

3. Some observers have wondered whether YLS Dean Gerken and HLS Dean Manning might have coordinated or discussed their moves with each other beforehand, given how quickly HLS matched YLS. But Dean Gerken told the Yale Daily News that her decision “was an entirely independent one,” and she reiterated that to me when we spoke yesterday. I also think that law deans might be especially reluctant to coordinate their actions because of antitrust concerns (although I don’t know enough about antitrust to know whether such concerns would be well-founded or not). My guess is that, much like a law firm following the Cravath bonus scale, HLS had already decided and was just waiting for YLS. This is not a new subject of focus for law schools; under Dean Gerken’s predecessor, Dean Robert Post, a faculty committee was convened to consider rankings-related issues.

As for which school will opt out of U.S. News next, all eyes are on Stanford, especially after a Stanford Law spokesperson told the Wall Street Journal that “we have long been concerned about the U.S. News law school rankings methodology and will be giving this careful thought.” As one Yale Law professor told me, “Stanford has to go along. If they stay in the rankings and gloat ‘Ha ha we’re #1,’ they would look weak.”

4. UPDATE (11/19/2022, 8:45 a.m.): This student is referring to a rowdy protest that disrupted a March 8 event at YLS featuring a conservative speaker and Dean Gerken’s response to the protest, which some observers—myself included—viewed as belated and insufficiently strong.

5. One source pointed out to me that YLS uses race in a less mechanistic, “check box”-ish sort of way than many other institutions, so it might be less affected by a ruling against racial preferences than some other institutions (e.g., HLS). That said, to the extent that YLS still considers race in some fashion, the forthcoming Supreme Court rulings could still be a concern.

---

Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get (1) access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world; (2) additional stories reserved for paid subscribers; (3) the ability to comment on all posts; and (4) written transcripts of podcast episodes. You can email me at davidlat@substack.com with questions or comments, and you can share this post or subscribe using the buttons below.