Harvard outranks Yale (and why the USNWR rankings are unconstitutional)

On the occasion of the U.S. News and World Report‘s publication of its 2010 law school rankings, I note again their dubious nature. Of course, the rankings have been assailed from all sides. One argument I am quite astonished not to have seen advanced before, however, is that they are clearly and utterly unconstitutional. Oh, yes. Fifty-nine years ago, the United States Supreme Court handed down the true variables by which to compare law schools:

In terms of number of the faculty, variety of courses and opportunity for specialization, size of the student body, scope of the library, availability of law review and similar activities, the University of Texas Law School is superior. What is more important, the University of Texas Law School possesses to a far greater degree those qualities which are incapable of objective measurement but which make for greatness in a law school. Such qualities . . . include reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, traditions and prestige.

Sweatt v. Painter, 339 U.S. 629, 634 (1950). Some might argue that the Supreme Court does not have the authority to promulgate a law school ranking system,  and that it was up to something entirely different in Sweatt. Semantics, I respond. Pressed further, I might point out only that [i]t is emphatically the province and duty of the judicial department to say what the law is, and that, of course, the greater power implies the lesser.¹ Having proved the Supreme Court’s authority to regulate law school rankings, it is but a trifle to show that competing rankings violate the Constitution. After all, [t]he scheme of federal regulation is so pervasive as to make reasonable the inference that [the Court] left no room for [U.S. News and World Report] to supplement it.

Moving on, how does the Supreme Court’s Official™ Ranking place our schools? I realize that The Nine are busy people, and even The Elect probably have a lot on their plates. For that reason, I stand ready to do the calculations myself. Fortunately, the malefactors at USNWR have done most of the heavy lifting. Unfortunately, all that heavy lifting is behind a pay wall; besides, it’s exam time. So how about just proving what we all know, deep down inside (and what was promised in this post’s title, four hundred words north of here)? To wit:

Harvard Law School is better than Yale Law School

I’ll take each variable in order, then weight and sum the scores.

1. “Number of the faculty”: HLS has 226; YLS, 95. Advantage: Harvard.
2. “Variety of courses and opportunity for specialization”: HLS offers 298 courses and five optional programs of study; YLS can muster only 227, and seemingly no formal specializations. Advantage: Harvard.
3. “Size of the student body”: If you study at HLS, your social circle will comprise 1799 classmates; at YLS, you’ll have only 658 (and every last one will be a Yale snob). Advantage: Harvard.
4. “Scope of the library”: HLS’ Langdell Library houses over two million volumes; YLS’ Goldman Library must content itself with over 910,000. Advantage: Harvard.
5. “Availability of law review and similar activities”: HLS has the Harvard Law Review; YLS doesn’t. (You might think that the Law Journal is a “similar activit[y]” to the Law Review, but the yawning, 10.4-point chasm between them would beg to differ)
6. “Reputation of the faculty”: Ah, now we get to the fun part. Of course, you can go back and forth with subjective measures of who’s more prestigious than whom. For me, I trust the numbers. Taking the faculty as a whole, let us assign HLS’ professoriate a score of 1.0. For YLS to beat that by even a fraction, each member of its faculty would need more than 1.0/95, or 0.0105, Reputation Points. That’s more than double HLS’ per capita score of  1.0/226, or 0.0044. Until someone is willing to tell me that Guido Calabresi‘s reputation is twice that of Larry Tribe, I’m going to say “advantage: Harvard.”²
7. “Experience of the administration”: HLS’ recently-departed Dean is Solicitor General of the United States; YLS’ is an uncomfirmable sharia-lover. Advantage: Harvard.
8. “Position and influence of the alumni”: …No, that’s too easy. Suffice it to say, Harvard has placed twenty-eight alumni in the Obama administration to Yale’s eight. Advantage: Harvard.
9. …And I’m out of jokes for the last three (like I said, it’s exam season). Mercy point for YLS on all three, then.

How would the Supreme Court total these results? It is clear that the latter six factors are “more important” than the first five, so let us weight them an arbitrary ten times more. Of course, the Court admits that the set of factors are also “incapable of objective measurement,” so let us treat them as binary variables (and note the negative implication as to the first five). Add ‘em up:

Conclusion

…And there it is. Resplendent with the twin gleams of scientific precision and fidelity to our governing document, the conclusion is plain: Harvard Law School is more than sixty thousand times better than Yale Law School. Q.E.D.