The best and the brightest?

It’s a small thing, but it’s been bothering me disproportionately, so I want to say a few words about one of my least favourite current phrases in the law:  “the best and the brightest.” It’s normally used in a talent recruitment or institutional marketing capacity to describe the very small group of the very best lawyers and law students, and I must have come across it a half-dozen times in the last week alone. An archetypal example was uttered in April by US Supreme Court Justice Antonin Scalia, in response to a question put to him by a law student who asked what she had to do to become “outrageously successful” without “connections and elite degrees.” Justice Scalia’s response eventually came around to her chances of clerking for his court:

“By and large, I’m going to be picking from the law schools that basically are the hardest to get into. They admit the best and the brightest, and they may not teach very well, but you can’t make a sow’s ear out of a silk purse. If they come in the best and the brightest, they’re probably going to leave the best and the brightest, OK?”

Justice Scalia’s criterion for identifying excellent future law clerks is depressingly common within the profession. He doesn’t actually know how to identify the best and brightest law students and new lawyers, and he’s hardly alone in that. He’s one of many people who rely upon a law school or law firm’s exclusivity, elitism, household name or other purported quality signifier as a substitute for having to actually determine “bestness and brightness” for himself. It’s a habit hardwired into tens of thousands of annual decisions about  which school a 1L should attend and which schools a law firm should recruit from, and it doesn’t do us any good.

Let’s start with the law schools. Everyone knows there are elite schools and non-elite schools, right? Even if you don’t read the noxious US News & World Report law school rankings or their equivalents in other countries, you “know” which are the “best” schools, especially if you graduated from one of them. How do you know? They have the best reputations, of course — even if you couldn’t name one aspect of the educational experience that justifies “elite” status or name three elements of substance that differentiate any one school from another. “Reputation” and “prestige,” based on countless dimly illuminated factors poked into the crannies of our minds, might hold sway, but we have no empirical evidence that an “elite” law grad is any better or brighter than a “non-elite” grad. Magazine rankings and law blog chatter serve only to confirm our existing region- and class-based prejudices about what places one school above another.

The great majority of law schools are largely indistinguishable from each other, in terms of the nature of their education, the quality of their teaching, and the (negligible) practical elements of their training. Almost every law student is smart and works hard — that’s the baseline standard of admission (along with, in most cases, tremendous pre-existing socio-economic advantages). Some schools keep class sizes intentionally small or raise tuition beyond most peoples’ reach, but while that may make them more “exclusive,” it doesn’t make them any better at teaching students the law. If there are ways of determining the “best and brightest” law students, finding out where they take their classes hasn’t proven to be one of them.

None of that keeps law firms (and Supreme Court justices) from relying on school pedigree to make interview selection and lawyer hiring decisions for them. But that raises an even more pernicious problem: let’s say you could figure out who the “best and brightest” law graduates are — how do you know which of them will turn out to be great lawyers? Law school prowess has little relevance to eventual lawyer success — the absence of correlation between LSAT scores and lawyer success has been proven. Yet those who hire new lawyers continue to rely on law school performance as a hiring factor, even though it tells us little about whether a student possesses or can quickly acquire the skills that practising lawyers need, the appetite and aptitude for client service, business management, persuasive advocacy and ethical steadfastness.

Now, here’s the funny part: the system has in fact come up with a way of determining which are the “best and brightest” law students  — they’re the ones who get hired by the “best and brightest” law firms! And how do we know which firms fall into that category? Well, they’re usually very old, very large, and very well-known (and big old famous organizations are all but guaranteed to prosper, right?) But the main reason these firms are considered the best is — wait for it — they recruit only from the best law schools! The Cravath system has been around for so long that the “top” law schools and the “top” law firms now perform a little pas-de-deux, each using the other tautologically to confirm its own higher sense of self (“our graduates go to the best firms”; “we recruit only from the best schools.”)

And that brings me to the final aspect of the “best and brightest” phenomenon that’s so problematic: this belief  that the “top” lawyers are to be found at the “top” firms. I am not saying, not a for a nanosecond, that large well-known firms don’t count among their  ranks some of the finest lawyers the profession has produced. Of course they do. But they don’t own the exclusive monopoly on that particular asset. I’ve met brilliant lawyers of extraordinary skill in midsize regional firms, solo practices, corporate law departments and public-sector environments. And I’ve met lawyers who work for famous law firms whose skills and talents are pedestrian. Succeeding in a BigLaw environment is undoubtedly a sign of the fact that you have the qualities to thrive in that kind of environment — but those qualities are not automatically equivalent to superior talent and execution. In our big-firm, AmLaw-obsessed legal culture, this obvious truth keeps getting lost.

All of which is to say, if you find yourself talking about “the best and the brightest” the legal profession has to offer, or you hear someone else saying it, ask a few questions: Best at what? Brightest according to whose standards? Based on precisely what criteria, and how many of those criteria are irrelevancies, assumptions, stereotypes or conventional wisdom? Let’s not buy into a myth that puts you down or puts other people up without sufficient cause. I think a powerful, sweeping assessment like “the best and the brightest” deserves and requires more scrutiny than that.


  1. Christopher Hill

    Anyone that properly uses pas de deuz is alright in my book. I agree, law schools do not determine success as an attorney.

  2. Laurie

    Standing ovation for this post Jordan! Honestly I remember reading the article that talked about Justice Scalia’s comments and feeling horrified. How is someone not super smart and bright who chooses to NOT spend crazy amounts of money on their law school education (which obviously they have if they go to the top tier law schools). Can someone not be “the best” if they have a life situation that dictates some of their choices and points them in the direction of a “lesser” law school.

    How terrible to think people think exercising prejudice is the right way to go.

  3. Dave!

    Huh. Unless Scalia was misqoted, I’m not sure why he’d want to turn a silk purse into a sow’s ear (“but you can’t make a sow’s ear out of a silk purse”) but then again, I suppose the best and the brightest member of the Supreme Court can’t be expected to get a simple idiom right.

  4. Luis

    It is painfully obvious to anyone who has done real hiring interviews in a real industry before their involvement with the law that the current system of identifying the ‘best and brightest’ in law is horribly, horribly broken. The problem, of course, is that no one has suggested a better, practically achievable method, at least not that I’ve seen. The only ones I can even think of offhand would require root-and-branch reform of the law schools, and I think I’ll see the sun rise in the west before I see that. Admitedly, I’m one of the supposed best-and-brightest so I’m probably missing the obvious somewhere ;)

    Dave!: I think Scalia’s intent was to express that, worst case scenario when he dips into the pool at Harvard, etc., he would still be getting a silk purse; whereas if he gambled on schools that were trying to make silk purses from lesser materials, who knows what he’d end up with- possibly a silk purse, but possibly much less.

  5. Colleen

    @Dave!: I don’t think he was misquoted. He’s making his point by twisting a well-known idiom. It’s a little bit convoluted in explaining it, but by saying “you can’t turn a silk purse into a sow’s ear,” he’s saying that shoddy education can’t turn a smart person into a stupid person. So, if a law school only accepts “the best and brightest,” hiring from the pool of that school’s graduates is a good bet even if the school’s actual education is lacking. I don’t agree with the statement, but there it is!

  6. Dave!

    Yeah, I understood what he was doing, but it’s a lot easier to ruin a silk purse than Scalia thinks; just wash it. The idiom works the way it does for a reason. Twisting it to make his point belies the same incorrect assumption he’s making about what constitutes the “best and the brightest”.

  7. Tony

    I don’t think almost anyone, including Scalia, would argue that elite law schools justify their elite status mainly by doing a great job of teaching. In fact, I have never heard anyone claim that elite law schools have great academic programs. So Scalia’s point isn’t that he trusts the elite schools to teach well, but rather, that he trusts the elite schools to only admit very smart people. Since the most important criteria for getting into an elite law school is having a high LSAT, Scalia is saying that he likes hiring people with high LSAT scores. Although I am troubled by such a sentiment, I am not the least bit surprised by it. It is well known that once a student is admitted to an elite school, he immediately has advantages over students who go to other non-elite schools, regardless of how well (or poorly) he performs at his elite school. Indeed, while many big firms require candidates from non-elite schools to have been on the law review or moot court, candidates from elite schools are given a pass. This seems backwards to me. I know elite law school grads who coasted through school confident of the fact they would get good jobs no matter what–and they were right: they did get good jobs. It doesn’t seem fair (or accurate) to me to assume that such a person is smarter or more capable than a hard-working, high-performing graduate of a non-elite school, especially when the grad from the elite school has already demonstrated a certain sense of entitlement and contempt for hard work. Maybe it would loosen the grip of elite schools in the job market if candiates listed their LSAT score on their resumes. This is certainly a crass idea since we like to pretend that things other than the LSAT matter, but by cutting to the chase, students with great LSAT scores could forgo the enormous cost of paying tuition at an elite school. Of course, this wouldn’t help people with mediocre LSAT scores at all. Those people would remain screwed.

  8. Omar Ha-Redeye

    Thank goodness we don’t have that kind of elitism in Canada.

    Students at top-tier schools U.S. might be the best at writing the LSAT, or perhaps even cheating in school. They are certainly not the best or the brightest, and as most practicing attorneys will tell you, the best lawyers come from all kinds of unexpected places.

    The reality is that Scalia is using the same method that most law firms use. They get so many applications that it’s easier to set thresholds and stratify within a more selective group than to search through piles of paper for some real talent.

    Maybe, just maybe, one day SCOTUS will review an online resume or blog writing as part of their application.

  9. Patrick Vuleta

    It’s definitely interesting to consider the extent to which this applies across different countries.

    In Australia for example, geographical distances and jurisdictional differences serve as an effective counter-weight.

    Although graduating from Monash University in Melbourne can be impressive, it’s not of too much impact in Queensland, since most people study locally. Likewise, most law graduates tend to look for work in their local area first. Therefore, many law firms and judges tend to recruit locally, greatly reducing the competition between different law schools for the “best and the brightest”.

    This might be down to that a lot of law is handled at the State level – the Federal jurisdiction in Australia, while important, is not overly-dominant, and so it is harder to practice across borders. I don’t know that we actually have the equivalent of a Yale or Harvard.

    I have no real insight into how big law firms here recruit however. It just seems in Australia we don’t have two dominating law schools as a function of a different geograpical and jurisdictional situation.

  10. Anne

    In a mash-up of hoary proverbs, it may be true enough that it’s hard to make a sow’s ear out of a silk purse, but then you oughtn’t to judge a book by its cover, and the proof of the pudding is in the eating. Which is to say that, after all, it’s performance on the job that will determine how many of the grads from the elite schools keep the places they (apparently effortlessly) ascend to upon their apotheosis — oops, graduation. There surely can’t be an endless supply of open-ended positions in “the best” law firms for underperforming associates; in the nineteenth century, of course, one shipped them off to the remotest parts of the empire … I wonder what the twenty-first century equivalent of that would be.

    Scalia’s tautology extends well beyond law schools and the firms that sponge up their issue; the administration of my university, while bragging about the accomplishments of its faculty at every opportunity (particularly when research dollars are attached as a handy gauge of excellence), nevertheless suffers from the inverse of the Scalia Syndrome (if I can put it that way). Where the Justice claims that, if an aspirant weren’t one of the “best of the best of the best”, then he wouldn’t be attending an elite school, the administration of my university is nagged by the sneaking suspicion that if its faculty members were really any good at all, we’d be teaching somewhere else — at a good (or at least better) school. It’s the same set of assumptions, but read back to front. And it’s just as wrong — about faculty, about students, and about the quality of education on offer.

    It’s hard to keep a good mind down; you really do have to work hard to ruin that silk purse. By the same token, a smart student will flourish in any number of educational environments, since ultimately the alchemy of learner, teacher, environment, curriculum, and style of teaching can’t be reduced to an equation or formula. How do I know that’s true? Because if it was that easy, anyone could do it, and any institution could guarantee the quality and success of its graduates, independent of their (or its) connections, status, prestige, and pull.

    Great post, as ever.

  11. laidoffdiary

    I think that only using pedigree as a factor in determining the best and the brightest is a cop out because it definitely is hard work to evaluate each possible candidate on his or her own individual merit; however, just because it’s easier to use pedigree doesn’t mean it’s correct methodology. Moreover, only selecting from the same pool over and over leads to homogeny–it’s not good in the gene pool and it’s not good in law.

    Here’s a good quote from Nietzsche that sums it up pretty succinctly:

    “History teaches that the best preserved tribe among a people is the one in which most men have a living communal sense as a consequence of sharing their customary and indisputable principles….The danger to these strong communities founded on homogeneous individuals who have character is growing stupidity, which is gradually increased by heredity, and which, in an case, follows all stability like a shadow. It is the individuals who have fewer ties and are much more uncertain and morally weaker upon whom spiritual progress depends in such communities, they are the men who make new and manifold experiments. Innumerable men of this sort perish because of their weakness without any very visible effect, but in general, especially if they have descendants, they loosen up and from time to time inflict a would on the stable element of the community….those who degenerate are of the highest importance wherever progress is to take place; every great progress must be preceded by a partial weakening. The strongest natures hold fast to the type; the weaker ones help to develop it further.”

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