Brian Leiter's Law School Reports

Brian Leiter
University of Chicago Law School

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Monday, May 10, 2010

Kagan's Scholarly Record

Paul Campos (Colorado) has taken a break from his usual routine of cheerleading for state university professors to be fired for their views in order to chastise Elena Kagan for her limited scholarly productivity; he says a bit about the substance of her work, but not much.   Mark Tushnet (Harvard), on the other hand, comments on the substance and what he says is consistent with what I've heard from other scholars.   Indeed, although Kagan was not included in the recent scholarly impact study (which is almost fully updated, just a few edits remaining), if she had been, she would have ranked in the top ten (but not the top five) for "scholarly impact" in the administrative law category (as well as ranking in the top half of the HLS faculty overall).   That would suggest that Tushnet's view of the merits is a bit closer to the truth than Campos's ability to count what she's published.  (On the other hand, the rejoinder of the empty suit Marty Peretz is enough to make one sympathetic to Campos's position!)   Kagan did get tenure at Chicago (well before my time) based on rather limited scholarly productivity, and I have the impression it was a close case.  Smarts in conversation goes a long way here, as does good teaching, and no doubt the school's lack of tenured women at the time was a non-trivial consideration.  On the other hand, as I've noted before, Chicago declined to hire her back with tenure (also before my time) after her stint in the Clinton Administration, since the bar for tenure from the inside is almost always lower than the bar for a lateral appointment with tenure.  She then took a visiting appointment at Harvard, produced the important piece Tushnet discusses, and was subsequently granted tenure at Harvard, a school with notoriously lax standards (at least prior to Kagan's tenure as Dean, ironically enough!).  Is any of this significant?   Not as far as I can see.  Justice Scalia was no scholarly heavyweight at the time of his nomination to the Supreme Court (I am trying to be polite about this), and he has turned out to be an important and influential jurist.   It is unlikely that Kagan will prove more conservative than Justice Stevens, whom she replaces, but beyond that, it's hard to predict.  Everyone knows that age discrimination was the decisive factor in the end favoring Kagan:  Judge Wood is both more skilled and more reliably liberal, yet she is also ten years older than Kagan.  My grandchildren may well be living under a Kagan Court before this is over! 

UPDATE:  This analysis of her first major article is also illuminating and a bit worrisome.

ADDENDUM:  A colleague elsewhere asks whether it was a typo when I wrote that, "It is unlikely that Kagain will prove more conservative than Justice Stevens...."  Bearing in mind that terms like "liberal" and "conservative" function as indexicals like "this" or "I" (what they refer to depends on the speaker), the answer is no, it was not a typo!  But I guess this is why my prospects for the next vacancy are dim.  Alas.

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