At Yale Law, a faculty exodus or just a cycle?

This story is the first installment of a three-part series on Yale Law School.

A recent spate of high-profile departures from Yale Law School’s faculty has raised concerns among students and legal academics about the school’s future.

In just over a year, six big-name law professors have left or have said they will leave: Anne Alstott LAW ’87, Yochai Benkler and Henry Smith LAW ’96 to Harvard; Brett Dignam and Michael Graetz to Columbia; and Kenji Yoshino LAW ’96 to New York University.

As many as four more could follow, sources said.

It’s an unprecedented loss for such a small faculty in such a short period of time. Among the more than 30 professors and students interviewed, the degree of alarm varied. But, by consensus, retention is a serious challenge, if not yet a serious problem.

“Some people are like, ‘Oh my god, we’re bleeding professors,’” Elizabeth Pesses LAW ’10 said.

It’s become the talk of the elite legal academy. Some circulation among law professors is natural, Stanford law professor Mark Lemley said. But Yale’s recent departures, he said, have left a hole in its faculty.

Even if the answer hasn’t changed, a question that years ago would have been greeted as preposterous is now asked increasingly often and in some unlikely corners.

Is Yale Law School slipping?

Location, Location, Location

The school’s dean, Harold Hongju Koh, said these kinds of concerns tend to arise from time to time and, in turn, subside.

“Schools go through cycles,” he said in an interview. “There are periods of a lot of comings, and there are periods of transition.”

But others said the current challenges facing the Law School may not be cyclical, and may be the beginning of a trend. The biggest challenge, sources agreed, in attracting and retaining professors today: location, location, location.

Perhaps New Haven has never been a terribly alluring place to call home. But the problem has worsened recently because with more and more couples, both spouses now have active professional lives, said professor Alec Stone Sweet, who has a joint appointment in the Law School and the Political Science Department.

When that’s the case, it can be harder for both partners to find career fulfillment in New Haven, a city with fewer opportunities than, say, New York or Boston.

“If you’re an excellent school located in a university town, in a two-career-couple world, it’s going to be increasingly difficult to make Yale — or any other university — as appealing as it was in an era when one spouse had a primary career and the other was willing to relocate with that person,” Yoshino said.

Yoshino moved to NYU after concluding that he could no longer make his commute from Manhattan work. If he could have, he would have stayed “in a heartbeat,” he said.

“My concern here is that this will be read as some kind of criticism of either Yale or Koh’s deanship,” Yoshino said. “I’ve heard from some corners, ‘Is this the end of the golden age for Yale Law School?’ I think that’s an unfair characterization. I think this is cyclical.”

Smith, who will start at Harvard in January, referred comment to an e-mail he sent out to the Law School community announcing his departure last August, in which he said he and his wife “are very excited about this change, but it was not an easy decision.” His wife, philosophy professor Sun-Joo Shin, is staying at Yale.

Benkler, already at Harvard, declined to comment. Alstott, Graetz and Dignam did not respond to repeated requests for comment.

“The recent departures are unusual in number, but most of them have to do with complicated family logistics in an era of two high-powered working spouses and the limited job opportunities for such people in New Haven,” law professor Peter Schuck, who commutes from New York, wrote in an e-mail.

In fact, he added, it’s “reassuring” given this situation that retention is not an even bigger problem.

Yale also added four professors this year: Thomas Merrill, a legislation and property professor from Columbia; Douglas Kysar, an environmental-law expert from Cornell; Scott Shapiro LAW ’90, a law and philosophy professor from the University of Michigan; and legal historian Nicholas Parrillo GRD ’01 LAW ’04.

Not everyone considers all the departures as major losses. Said one senior professor, who requested anonymity in order to speak candidly about colleagues: “A tree does not grow well unless it is pruned.”

Has ‘nothing’ changed?

Koh, who grew up in New Haven, said the city offers an unmatched intellectual community and is family friendly.

“Nothing has changed on that score,” he said. “People who want our strengths will still come here, and people who want other place’s strengths will go somewhere else. And that’s fine by me.”

U.S. Circuit Judge Guido Calabresi ’53 LAW ’58 said he heard the exact same concerns about New Haven’s attractiveness to two-career couples when he became dean 23 years ago. And his answer then, he said, was the same as his answer now: Because Yale recognizes this challenge, it will work harder to accommodate those people than other schools who simply rely on their cities to provide for professors.

New Haven has always been appealing because it is a center of legal scholarship, and that’s not in danger of changing, Schuck said in an interview. But the calculus might not be that simple anymore.

“The reason to be [in New Haven] was always because it was at the top,” said Brian Leiter, a law professor at the University of Chicago. “The problem is there’s a tipping point — if it’s not clearly at the top, why not go to Columbia?”

Leiter, once a visiting professor at Yale, blogs about law professors and publishes law school rankings.

Yale has set high expectations for itself, but it is “well-positioned” to continue to meet them, said Anupam Chander LAW ’92, who was a visiting professor at Yale last semester and is now visiting at the University of Chicago Law School.

“It’s easy to wax nostalgic about a ‘golden age,’ especially when it’s populated by some of the biggest names of legal scholarship in the 20th century,” he said. “There’s a risk of Yale Law School always being compared to its glorious past.”

Calabresi, the school’s dean from 1985 to 1994, who presided over what would be considered the golden age by those who claim there was one, said retaining faculty is something every dean has to be concerned about, but he said he doesn’t see “any special problem now.”

More important than the departures, Calabresi said, are Yale’s new appointments this year.

Asked, then, why the recent faculty changes have sparked so much speculation, he said, “It’s something to say. It makes news.”

The stakes

Compounding the concerns about retention, many of Yale’s remaining superstar scholars are graying. Almost half of the 60 or so full-time tenured Yale law professors are above the age of 60.

Koh said the faculty is in a natural cycle of generational transition. When he joined Yale Law School in the mid-1980s, the school had just experienced another such period, he said, with concerns about the departure of Robert Bork’s generation of all-star professors. Their replacements — among them Bruce Ackerman LAW ’67, Owen Fiss, Tony Kronman GRD ’72 LAW ’75 and Jerry Mashaw — turned out to be today’s all-stars, Koh said.

And, Chander said, the full significance of scholars and their scholarship often becomes apparent only in retrospect.

But almost all of the recent departures are in mid-career. Replacing both them and the retirees could be especially difficult because the Law School has steep qualifications for receiving tenure.

Unless Yale finds a systematic way to deal with these demographic changes within the decade, Yoshino said, its current retention challenges could mature into a full-blown crisis.

Asked how the Law School will prevent that, Koh said in a e-mail, “We will simply do what we always do: appoint world-class scholars such as the four exciting professors who arrived this year, and maintain a uniquely vibrant and intimate scholarly and teaching community that will inevitably attract other world-class scholars to join them.”

Not everyone is, like Yoshino, willing to wait 10 years. Yale’s reputation for having the best law faculty may already be at stake, Leiter said. Yale will always be among the leading law schools, he said.

“But will it be No. 1?” he added. “That’s what people at Yale Law School care about.”

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