My personal nerdosphere of interest (that’s the Berkman Center/Harvard Law School quadrant of the cyberlaw sector of the whole sort of general technology mish-mash) has been lit up the last few days, following the Daily Beast’s publication of an essay on Harvard’s Berkman Center and Prof. Jonathan Zittrain. A lot of the commentary, from people I know and people I don’t, has condemn the article and its author, one Emily Brill. The article relates to conflicts of interest, so I should admit mine up front: I just graduated from HLS, made a lot of connections with the Berkman Center, and (although we’re not close) did enough work with JZ to regard him as a brilliant professor and a great human being. In spite of all this, I thought there were enough potentially valid points in the essay to warrant mention, and I thought I’d take a minute away from bar review to do so here.

Don’t get me wrong: surrounding the good stuff is a morass of points that are petty, dumb, or wrong. I have no reason to agree with Brill’s innuendo that Prof. Zittrain or anyone else at the Berkman Center is in any way corrupt — far from it. And, well, when you’re writing an article that’s going to upset a small but tightly knit community, you owe it to your own reputation to avoid all the common mistakes that are going to make that community use the phrase “hack job.” Let’s start with the silly stuff: even a little bit of searching would reveal plenty of online record of Zittrain’s sudden, severe illness earlier this year. (I’d link it here, had he not publicly asked for a little privacy after news of his illness hit the web and offers of help poured in). So yes, his excuse for not returning Brill’s emails was a real one.

Looking at the bigger picture, Brill frames her story around a seminar offered by HLS in Palo Alto over this most recent winter term, which Zittrain led and she attended. Now, I’m only capable of an ethical appeal, but look: I don’t know how you spend three weeks in a class led by Zittrain without coming away thinking, at a minimum, that he believes in what he’s saying. If nothing else, I don’t know how you spend three weeks in class with JZ, see the man’s relationship with his iPhone, and come away thinking that he was a single-minded opponent of Steve Jobs… Just so we’re clear: I hold the people I’ve met at the Berkman Center in the highest regard, and I can’t honestly believe anyone involved with it is ready to auction his or her research conclusions to the highest bidder.

But apart from the salacious accusations, I was struck by one thing in the article.

No one has alleged that anyone at Harvard Law School has formulated opinions because he or she was paid to. But Berkman and Zittrain, due in no small part to the force of Harvard’s branding, have become increasingly important players in Internet policy and media circles. The appearance of conflicts matter; even if such conflicts are not the stuff of life and death, as they might be in medical research, they do impact legislation, stock prices, and consumer choices.

The Fortune article I linked above may have been right to classify this paragraph as an editorially mandated walk-back. But it makes a real point: the appearance of conflicts does matter. When I say “blah blah only capable of an ethical appeal,” you’re right to dismiss it as bullshit, because who the hell am I? But when the Berkman Center speaks, well, it’s somebody. To be sure, one of the things that makes Berkman projects so cool is that they don’t simply ask you to take their word that the Internet is like this or like that, they actually go out and show you. But as our society is learning, not all research is created equal. All the talent, methodology, and press releases in the world won’t save research that doesn’t look credible. Prof. Larry Lessig, another HLS affiliate quoted in the article, reminded us of money’s effect on trust in institutions only last fall.^[1]

Brill cites the Center’s “relaxed approach” to ethical guidelines. Though I was never in a position to discover it, I wouldn’t be surprised if that charge were accurate — the Berkman Center has a relaxed approach toward a lot of things, and that’s part of what makes it such a great organization. But as articles like this get written and questions like Brill’s get asked, that approach might inhibit some of the Center’s work, and actually work a net loss on its institutional capital. I hope it doesn’t, and I don’t think it should, but I think it’s a useful prospect to consider more directly.

Actually, that’s another thing that bothered me about the article’s reception. To pick on that Fortune article again, its author introduces Brill herself into the debate in his third paragraph, and uses her identity — well-connected socialite, recently passed over for a Berkman job herself — as a frame for his response. Now, I’m happy to admit that “reporting on reporters” is part of the blogger’s stock in trade. But another part of it is surely collecting the facts, right? And no matter who collects them, they’re worth considering, right?

I didn’t take last winter’s Difficult Problems in Cyberspace course with JZ, but I took a version of it earlier in 2009. Had I taken the second version in sunny California, I would have been very interested to learn that the funding came from Microsoft, but I didn’t learn that until reading Brill’s piece. It sounds like the students in the class didn’t, either. That’s investigative journalism. That’s the kind of fact-finding that, if my Difficult Problems class is to believed, is dying out and ought to be encouraged — even if the facts it turns up are a little uncomfortable.

Update: I just received an email from Larry Kramer, dean of Stanford Law School and the person responsible for organizing and funding the Difficult Problems class. He disputes Ms. Brill’s characterization of the Microsoft money, and I agreed to post his comment to the article:

To say that Professor Zittrain’s class at Stanford was funded by a “special grant” from Microsoft is highly misleading. The class was an experimental and unusual arrangement that involved bringing Harvard students to Stanford for a special three-week joint class. It was arranged long before the grant from Microsoft was even in the works. The grant, in turn, was secured with room for discretionary uses and with no mention of the Zittrain class. We subsequently decided that we could use some of these resources to fund Zittrain’s class, which was within its general terms. But while we did, as a courtesy, let Microsoft know later that we had used a portion of their grant for this purpose, we did not seek their permission. Nor did we inform either Professor Zittrain or the class of the source of funding, as it was irrelevant under the circumstances. Dinners for the three weeks were catered because to fit the course into this short time frame required meeting for many hours each evening, including through the dinner hours.

To my mind, Dean Kramer’s explanation is perfectly credible, and sounds a lot more like how I would imagine a one-off law school class would be funded. It may well be that the central “revelation” in the Daily Beast story is bunk, and there’s no story here at all. So, let me temper my already limited defense of Brill’s reporting — it’s hardly investigative journalism to just make stuff up. Still, maybe it’s an opportunity to remember how the appearance of bias problem works. Even when such an appearance is unfounded, it can interfere with an organization’s capacity to operate in the real world.

If I were a cynical man, I’d say this is less the latest in a consistent First Amendment jurisprudence or a courageous defense of animal rights, and more a custom-ordered talking point for the Sunday morning talking heads. “What do you mean Obama is entitled to pick a justice as liberal as Bush’s justices were conservative? Look at Alito just this week!”

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.