The Two-Body Solution: What Power Couples in Elite Law Schools Tell Us About American Law

The American legal academy has produced a great body of scholarship on equal protection, on disparate impact, on the procedural rules that govern the rest of the country. The same academy has produced almost nothing on the procedural rules that govern itself. This silence is not random. The men and women who run the field are the beneficiaries of an arrangement they cannot describe without describing themselves.
The arrangement is the two-body solution. A senior law professor marries another academic. The institution accommodates the marriage by hiring both. The hiring requires the institution to set aside its anti-nepotism rules. The anti-nepotism rules exist because Congress and the courts and the Title VII jurisprudence the law professors themselves built treat preferential hiring of relatives as a paradigm case of unfair labor practice. The rules are real for the secretary who wants to bring her sister into the office. The rules are real for the assistant professor whose husband is finishing a dissertation and would like a foothold. The rules are formalities for the dean and his chaired-professor wife. Same rule. Different application. The American legal academy has built a tier in which procedure waives itself for the people who write about procedure.
Every elite American law school participates. Yale has Bruce Ackerman and Susan Rose-Ackerman, married since 1967, on the Yale faculty together since 1987, both in named chairs, both producing scholarship that argues for procedural rigor in democratic life. Yale also has Robert Post and Reva Siegel, the former a recent dean and the latter a chaired professor, co-authors of the most influential framework in constitutional theory of the past quarter century, a framework developed inside the marriage and through it. Stanford has Joseph Bankman and Barbara Fried, on the faculty since the late 1980s, parents of the man who built and lost FTX, named in the bankruptcy lawsuit as recipients of FTX-funded gifts. Harvard has Cass Sunstein and Samantha Power, married in 2008, sharing a Harvard course and a Cabinet-level career trajectory between them. Berkeley has Erwin Chemerinsky and Catherine Fisk, the dean and the chaired professor, moved together as a unit through Duke, UC Irvine, and now Berkeley. Chicago had Sunstein and Martha Nussbaum until Sunstein left for Harvard in 2008. Columbia, NYU, Penn, Michigan, Northwestern, Virginia: each has its resident pairs. The pattern is not an accident. The pattern is the institutional norm.
The institutional accommodation has a name. The two-body problem became the two-body solution sometime in the 1980s, after second-wave feminism made the old anti-nepotism rules untenable for married women in the academy. The old rule said the wife could not work where the husband worked. The new rule said both could work where one was hired, with administrative routing through superior officers to satisfy the form of the no-supervision requirement. The old rule kept women out. The new rule kept the husband-wife pair in. The shift was framed at the time as feminist progress and was that, in part. The shift also produced an unintended consequence the feminist literature has barely examined. Once both spouses could be hired, the institution could compete for elite couples by offering packages no individual hire could match. A senior professor with a dual-academic marriage became more valuable to the recruiting institution than a senior professor with a non-academic spouse, because the package deal added a chair, a commitment, and a permanence that single hires did not provide. The market started selecting for couples. The selection has compounded over forty years.
The result is a quiet sorting effect at the top of the American legal academy. Senior law school faculty are more likely than the population at large, more likely than the academic population at large, and more likely than even other professional faculty to be married to other senior academics. The combined household income at this level commonly clears half a million dollars annually before consulting fees, casebook royalties, and outside speaking. Combined retirement assets at the end of two parallel careers in named chairs at top institutions run into the multiple millions. The two careers reinforce each other. Each spouse cites the other in scholarship, brings the other into co-teaching, recommends the other for editorial positions, advances the other through professional networks. The household becomes a small institution. The small institution reproduces itself by sending its children to the same schools that produced the parents and credentialing them through the same networks that opened to the parents.
This is class formation. The legal academy that writes about class formation in other contexts has not written about its own.
The arrangement would not survive scrutiny under the standards the legal academy applies to other institutions.
Consider the scrutiny that lawyers and law professors have brought to comparable arrangements outside their own field. Family-owned construction companies that hire only relatives face EEOC investigations under disparate impact theory. Police departments that maintain father-son hiring patterns get sued under Title VII. School districts where principals supervise their spouses face state ethics charges. Federal agencies enforce anti-nepotism rules at all levels of government employment, with criminal penalties for violations under 5 U.S.C. § 3110. Corporate boards face shareholder derivative suits when CEOs put family members on the payroll without independent compensation review. The body of law is substantial. The body of law was largely built by the same legal academy that exempts itself from comparable scrutiny.
The American worker outside the credentialed elite cannot bring his spouse into his workplace as a peer professional. The accountant cannot get his accountant wife hired at the same firm as a partner with a parallel salary track. The school principal cannot get his teacher wife hired at the school he runs. The hospital administrator cannot put his nurse wife on the staff he supervises. The factory floor manager cannot bring his wife into a parallel position with parallel pay. These rules are enforced. The penalties for violation include termination, civil suit, and in government employment criminal liability. The American workplace operates on the assumption that married couples at the same employer create unmanageable conflicts of interest and unfair preference patterns. The assumption is hardened into HR policy at every workplace below the level of elite professional academia.
Above that level, the rules dissolve. Federal judges who marry attorneys must recuse from cases involving their spouses, but their spouses can practice law. Senators who marry lobbyists must report the relationship, but the lobbyist spouse can keep working. CEOs whose adult children join the firm face board scrutiny, but board scrutiny is exercised by other CEOs. Law school deans who marry chaired professors face anti-nepotism review, but the review is conducted by other deans and by provosts who themselves have spouses on the faculty. The further up the institutional hierarchy you go, the more the procedural rules become recommendations the senior figures negotiate around. The American legal system writes the rules and exempts the writers.
This produces a particular kind of public moralism inside the legal academy that deserves examination.
A constitutional law professor at Yale or Harvard or Berkeley writes books on procedural neutrality. He argues that the rule of law requires equal application of rules without regard to the status of the person to whom the rules apply. He argues that the difference between rule of law and rule of men is exactly this neutrality. He teaches the principle to his students, who go on to clerk for federal judges, who go on to clerk for the Supreme Court, who go on to staff law firms and government agencies and law school faculties, who go on to teach the next generation. The principle gets transmitted across generations. The principle does not get applied to the conditions under which it gets transmitted.
The conditions under which the principle gets transmitted include the chair the writer holds, the chair his wife holds, the building they both work in, the deanship one of them runs, the casebook royalties they both collect, the consulting fees they both bill, the named lectures they both give, the federal agencies they both have served, the New York Times op-eds they both publish. The principle of procedural neutrality has not been applied to any of this. The application would require the writer to ask whether his own household is the kind of arrangement his scholarship would countenance in another field. The question does not get asked. The formation that produced the writer makes the question feel unfair, irrelevant, inapt.
Stephen Turner’s frame on convenient belief catches this. The legal-academic class believes its procedural rules apply universally because the formation that produced its members makes universal application feel like the natural state. The fact that the rules apply differently to the legal academic class itself than to the constituencies the legal academic class regulates is invisible from inside the formation. The invisibility is not deceit. The invisibility is what formation does. From inside the formation, the waivers feel earned. The chairs feel deserved. The packages feel reasonable. The procedure that bent feels like procedure functioning correctly. The complainants outside the formation feel ill-formed, mistaken, motivated by resentment rather than principle.
The complaint from outside the formation is straightforward.
The American worker pays his taxes to support state university law schools where deans marry chaired professors and the institution accommodates the marriage with a waiver the same university would deny to its own staff. The American worker watches his children apply to those same law schools and either gets in, after taking on debt the parents will spend decades repaying, or does not get in and watches the seats go to the children of the credentialed couples whose parents wrote the admissions standards. The American worker sees the legal academy on television lecturing the country about democratic norms and the rule of law and consents grudgingly to the lecture, suspecting that the lecturers are not subject to the rules they describe. The suspicion is correct. The legal academy has built a system that lectures the country from above a procedural firewall the legal academy does not allow the country to cross.
The Catholic Church before the Reformation operated this way. The clergy held the sacraments, taught the doctrine, and lived under rules that Rome relaxed for the men running the institution. The peasants tithed. The bishops fathered children, accumulated benefices, and ran their dioceses as family enterprises. The arrangement was visible and produced grumbling for centuries before the explosion. The grumbling did not become a movement until a German monk named the contradiction in language the peasants could understand. The peasants could see the contradiction without him. They could not name it. The naming made the movement.
The American legal academy is at the stage of grumbling without naming. The contradiction has been visible for forty years. The Above the Law commenters have noticed it. The right-wing critics of academia have noticed it. The disappointed law school applicants have noticed it. None of these noticers has the credentials to make the naming stick inside the academy. The naming has to come from inside, from a credentialed academic willing to apply his own principles to his own household. The naming does not come because the men and women best positioned to do it are the men and women who would have to dismantle their own arrangements to make the naming consistent. They will not dismantle. The contradiction will keep operating. The naming will keep being deferred.
What the naming would say if it were said.
It would say that the American legal academy has constructed a class system inside the institution that writes the country’s class-related law. The class system rewards endogamy, since marriage to another credentialed academic produces a household with double the citation count, double the chair-eligibility, double the consulting income, and double the institutional accommodation. The class system rewards mobility, since the package deal lets the household move between top institutions in ways unavailable to single hires or to couples without academic spouses. The class system rewards prestige hoarding, since the chairs and the deanships and the editorial board positions concentrate inside a small number of households that share their accommodations across institutions. The class system rewards inheritance, since the children of these households grow up inside the formation that produces the next generation of credentialed academics, attend the schools that select for the formation, and reproduce the arrangement.
It would say that the procedural rules the legal academy teaches the country are real rules for the country and aspirational rules for the academy. The country gets the rules. The academy gets the aspirations. The country lives under the procedure. The academy lives under the discretion the procedure preserves.
It would say that the framework the legal academy has built around equal protection and disparate impact and procedural neutrality applies in the academy as it applies anywhere else if the analysis is honest. The dean’s wife has not been hired through a procedure neutral with respect to her marriage. The procedure was bent to accommodate the marriage. The bending was justified by the bending parties on grounds the bending parties found persuasive. The grounds the bending parties found persuasive would not have persuaded the bending parties if applied to a parallel case in industry. The pattern is selective application. The legal academy teaches that selective application is the diagnostic feature of unjust legal regimes. The legal academy declines to apply the diagnostic feature to itself.
It would say that the men and women in elite legal academia who have built distinguished careers inside the two-body solution are not bad people. The arrangement is not a conspiracy. Each individual case has reasonable grounds. The cumulative effect is a closed credentialing system that selects for inherited advantage and consolidates it across generations. Each individual hire was defensible. The aggregate is the American class system the legal academy claims to oppose.
It would say that the legal academy’s silence on its own arrangement is the same kind of silence that other professions have produced about their own arrangements at other moments in American history. Doctors did not write about the AMA’s role in restricting medical school admissions in the 1920s. Bankers did not write about the boardroom marriage pattern that produced midcentury Wall Street. Newspaper editors did not write about the social ties that produced midcentury journalism. The professions wrote about everything else and stayed silent on themselves until the silence became untenable. The silence becomes untenable when an outsider names what the insiders cannot.
The legal academy will not be reformed by its own scholarship. The reform will come from outside. The reform will come from the conservative legal movement that has spent forty years building a parallel infrastructure precisely because it could not get inside the credentialing system that is producing the two-body solution. The reform will come from the populist anger at credentialed elites that has been building since the 2008 financial crisis. The reform will come from the federal funding pressure that future administrations will apply to the universities housing these arrangements. The reform will come from the families that watched their children be admitted or denied admission to the schools where the dean’s wife teaches. The reform will not come from the legal academy. The legal academy has too much to lose.
What the legal academy could do, if it wanted to set an example consistent with its scholarship.
It could publish, transparently, the spousal-hire arrangements at every law school, with the names, the chair details, and the supervisory routing. It could publish the timeline of the hires showing the package-deal structure. It could publish the comparative outcomes showing how dual-academic households have fared relative to other faculty arrangements. It could submit its own anti-nepotism waivers to the same scrutiny it would apply to comparable corporate cases.
It will not do these things. The reasons it will not are the reasons every closed credentialing system has refused to open itself to the principles it teaches others. The closure is what makes the system valuable to the people inside it. The opening would dissolve the value. The value depends on the closure. The closure depends on the silence. The silence depends on the formation. The formation produces the next generation of silent observers who will be silent in their turn.
The naming has to come from outside. This blog post you is one piece of the naming. The book that does not yet exist is another. The journalism that the New York Times will not publish but that some smaller outlet will is another. The conservative legal movement’s ongoing critique of the legal academy is another. The libertarian critique of credentialism is another. The progressive critique of class reproduction in the academy is another. None of these by itself moves the institution. Together they erode the silence. The erosion is slow. The erosion is real.
Forty years from now, the arrangement will be either reformed under outside pressure or hardened into the kind of caste system the legal academy claims to oppose. Which of these futures arrives depends on whether the naming reaches enough Americans for the political pressure to build. The naming has to be done by people who do not have the credentials the credentialing system controls. The people who have the credentials cannot do the naming because the naming would cost them what the credentials gave them. So the naming falls to bloggers, journalists, religious dissidents, conservative critics, populist commentators, alienated former insiders. Each name adds one stone to the cairn. The cairn becomes visible at some point. The visibility produces the pressure. The pressure produces the reform.
Until then the arrangement continues.
The dean and the chaired professor host a dinner for the graduating class. The Palestinian student protester arrives uninvited. The dean’s wife takes the microphone. The video circulates. The dean writes the LA Times op-ed explaining that protest in proper venues is welcome and that protest at his home is not. The proper venue is the venue where the dean cannot hear the protest. The principle is preserved. The cases are ruled out. The household is intact. The waiver the institution granted nine years ago to permit the household stays in place. The arrangement reproduces itself for another year.
The peasants notice. They have always noticed. The naming is the work of each generation that wants the noticing to count.