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Thursday, October 28, 2010

Should Hiring Committees ask "Recruits" to Incur Some Bonding Costs?

N.B. The following post is meant to be offered strictly in my personal and professorial capacity, but not as indicative of my views or others sitting on the appcomm at FSU.

I'm a rank amateur in this realm (at least so far), but in the realm of agency theory, my understanding is that agents are frequently encouraged to "assure the principal that certain actions inconsistent with the principal's interest will not be taken."  These are referred to, in the jargon, as "bonding costs." My sense is that this concept could be useful in an area near and dear to our hearts: hiring prawfs, a topic of special interest this week with the rookie meat market happening now.

Although a candidate (rookie or lateral) is not really an agent of the prospective law school -- because the candidate is instead a possible future agent (or more accurately, in the realm of tenured prawfs: a possible co-principal) --  the idea of trying to encourage candidates to incur some bonding expenses may make sense (at least ex ante). Otherwise, schools might be "used" by lateral candidates for simply seeking raises or other retention deals from their current school, and schools might be "used" by rookies for practice on the job market, so that they get more feedback on their work and more experience giving talks, fielding questions, etc.  Candidates who are not serious about the law school they might interview with are a good bit like (though not necessarily identical) to those who send their papers to law reviews with whom have no desire to publish. The hiring scenario raises the question: what kinds of bonding costs, if any, are reasonable to ask candidates to incur to signal their genuine interest? *So how can schools reasonably try to reduce situations where candidates are not genuinely interested?

A few options:

first, require some co-payment on the part of the candidate for the travel expenses. Say: 250$. Tell candidates that they will be reimbursed that co-payment if the candidate is offered a job and it is accepted, or alternatively, if the candidate is not offered a job.  This or some similar gambit might work for deciding who to invite to campus. (Instead of a co-payment for travel, the school could just as easily, though perhaps less reliably, say please make a donation of X dollars to one of the following charities (or a charity of your choice) in order to signal your non-trivial interest in us; this might seem a bit more paternalistic because the donation to charity is non-refundable, or so I would suppose.  One senior academic has indicated another bonding cost that lateral candidates should incur is requiring them to come on a day that they normally teach, so that they have to reschedule their class and do a makeup, which generates a small but nontrivial expense/burden to them.

This still leaves open the question of which candidates' work should you consider before deciding to bring them to campus. Schools already rely to some extent on the signal sent when candidates at the rookie level send packets to specific schools, instead of just using the FAR form. But even packets are a pretty weak signal of interest, and it also offers no help in the context of hiring laterals.

I think asking rookie applicants to make a 5 or 10 dollar donation to a charity in your school's name is a potentially useful sorting device to decide whose work to read carefully. It's somewhat trivial in money terms but the very fact of having to do something for 10 minutes extra hassle could be a useful signal. I'd even be in favor of giving them back the money once they do it, or alternatively, those who plead paupery should be spared the expense but not the time by having to just write: I wish I could pay this "application" fee but I need relief; but by this statement, I am genuinely interested in working at your school and hope you will consider my candidacy.

The same tactic might work at the lateral level, but here, more due diligence up front could benefit both parties: appcomms should ask all interested lateral candidates to provide not only the cv and pubs, but also some teaching evaluations and names of 3-4 references so that candidates who are brought in are brought in because the committee has already done most of its homework, or at least had the opportunity to do most of its homework, and people don't have to fly out to campus only to get killed in committee after the job talk based principally on information that was available to the committee before the job talk. [This leaves the committee some flexibility to stymie a candidate based on the job talk or the interviews but hopefully not on the substance of the job talk, which, in my mind, should have been vetted before an invitation was extended--but that's another post.]

Anyway, I'd be curious to hear reactions to this proposal (good concept, but poor implementation; bad concept, but interesting implementation? etc.). Also, I'll let this post be a placeholder for a different post on whether committee attitudes to rookies should be different than those to lateral invitees (for example, rookies should be treated as applicants who need to impress the faculty whereas laterals should be treated as guests whom the faculty hopes to recruit).


*Conversely, is it possible that sometimes schools bring candidates through (whether to join the faculty or even more especially in the dean market?)  even though there is no genuine interest in hiring those persons; instead they are simply brought in to show efforts were made to achieve X goal. One reason this  is less likely to present itself is that schools spend a couple thousand dollars on travel and food expenses for each candidate brought in for a day of interviews, plus the value of the time for each of the faculty members spending any time with that candidate. Hiring faculty is a costly and time-sucking endeavor.  To be sure, some colleagues may feel fine with externalizing those costs onto their faculty, but it's not a best practice, so far as I can tell!

Posted by Administrators on October 28, 2010 at 03:39 PM in Dan Markel, Getting a Job on the Law Teaching Market, Life of Law Schools | Permalink


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Interesting idea. I think the problem is that unless the bonding costs were higher than the benefits the non-sincere candidate got out of the interview experience (in terms of practice, reputation, etc.) they wouldn't serve as a deterrent. Would candidates pay $250 for a practice callback that would increase their cachet? Unfortunately, probably.

I love the idea of a system that would require candidates and schools to rank their preferences after callbacks, and use that as a means to achieve placement. I think this is done in the context of medical residencies, for example. There are flaws with this in the hiring context, obv., but I like systems that force us to actually state our preferences rather than requiring weak proxies for them.

Posted by: Dave | Oct 28, 2010 5:37:09 PM

One of my smartypants friends informed me that the Michael Spence work on signaling theory in employer-employee context would probably be more apt. Specifically, he wrote to emphasize the separating equilibrium: " You are asking a group of applicants to do something costly (paying cash to a charity) in order to signal their type (interested in the job.) The key question is whether it would produce a separating equilibrium -- i.e. you could design the cost such that it reveals the information you want. Or will the requirement cause separation based on some factor you're not interested in (willingness to eat $250, for instance.)"

Posted by: Dan Markel | Oct 28, 2010 5:37:55 PM

It sounds like you're looking to ensure good faith in a bargaining situation. I would think that the reputation of the participants is the best mechanism to do that: As everyone in this scenario is a repeat player, all have some stakes in their reputations, and they will be hurt rather than harmed if they are seen as using other people in that way.

Posted by: Orin Kerr | Oct 28, 2010 8:36:09 PM

Orin, I don't think concern for reputation works sufficiently well here as a constraint. Consider two scenarios:

X teaches at Y school, where he's reasonably happy but would like a retention deal to improve his salary or teaching load. X indicates that he'd be interested in teaching at Z when someone from Z approaches him. X gets the offer from Z, tells his dean, and poof, big raise and a sweet retention deal emerges for X. X continues to live his life happily. Y school is a catalyst, so X sends a thank you note (insincerely).

A is a hotshot rookie. B school is actually really interested in A, but B school is geographically undesirable to A and in the fifth tier of the four tier law school hierarchy...A does a job talk pre-meat market at B school, but ends up fielding offers from six top 25 schools. A never has to worry about a reputational hit from going to B school because A is now in the snooty stratosphere and can "safely" regard the folks at B school as "for practice." What's more, there's enough uncertainty in the hiring game that any decision can be rationalized publicly using standardly invoked arguments and considerations.

There's really no mystery here. This is virtually the same dynamic at play as those who Expresso their articles to law reviews at schools from whom they wouldn't dream of accepting offers for publication. The self-interested concern for reputation doesn't suffice; what's needed is a check on this "gamesmanship" by the B and Y schools looking to protect their time and money.

Or maybe not. I'm increasingly wondering whether non-appcomm faculty are upset when "bad" or "unlikely" candidates are brought in. After all, it's a free lunch and there's an outside chance you might learn something...

Posted by: Dan Markel | Oct 28, 2010 10:58:59 PM

Maybe the fact that I've spent my teaching career in the frozen midwest has colored my views, but it seems to me that requiring a bonding cost across the board would frustrate efforts to recruit candidates who don't think they are seriously interested in one's school, but who might well change their minds if they actually came and hung out for awhile. (In my experience, a significant number did, perhaps in part because they weren't as competitive on the market as they had expected to be.) Wayne State University did move to a university-wide hiring system that imposes exactly the sort of costs you may be envisioning: all applicants for faculty positions are supposed to fill out a burdensome online application before the unit is allowed to consider them. I believe that Wayne's human resources folks expected everyone invited to interview with the law school in DC to fill out this online form. The dean and the chair of the hiring committee were able to persuade the University to permit candidates to delay until the on-campus visit or the committee decision to recommend a hire. They argued that the burden of completing the application would cause viable candidates to decline to apply, even though those candidates might later accept a job if an offer were extended. Many candidates see the schools they interview with chiefly as a package comprising a US News rank and a location. If a school has features that make it non-fungible with other similarly ranked, similarly located schools, it may be worth it to invest the time and money involved in interviewing people who might bail if asked to invest time or money to signal their interest.

Posted by: Jessica Litman | Oct 29, 2010 10:28:09 AM

Jessica, I completely agree that some schools may need to risk more in order to get the kinds of candidates they want and that the downside of the bonding costs idea is that it might deter some candidates from applying on the margins. This is really a recommendation for schools that are more worried about being softly exploited by candidates. If the goal is to show people "Hey, X school is actually in a livable place and has neat colleagues, please consider joining our faculty", then there's little point to asking candidates to incur any costs. Much of this turns on whether the school is "recruiting" candidates or "sifting" candidates.

Posted by: Dan Markel | Oct 29, 2010 10:40:19 AM

Another friend wrote to say:
I would submit that perhaps your costs aren't costly enough. Think about your hypothetical on a lateral. If I am going to be able to get my institution to give me a 20% increase in salary (or more), then the relatively small transaction costs you offer are not going to dissuade me from taking the interview. Perhaps if I had to pay whether I got the offer or not, then that might be different (includes probability estimate and costs), but that wouldn't really be very fair to candidates who aren't selected (double whammy really).

Posted by: Dan Markel | Oct 29, 2010 2:35:02 PM

Is this really that big a problem? As to AALS rookie candidates, I can see where it might be, but I do not see most of those candidates having the confidence to decline a callback because of a small fee (as AALS candidates generally accept most, or all, callback offers, not knowing whether or where they might ultimately get an offer). A large upfront fee may do the trick for some who have lots of other callbacks, but most AALS candidates are praying for just one and will gladly pay it.

As to lateral candidates, how common is the disingenuous form of interest-expression that might be mitigated by upfront costs? I would guess that, in most cases, a lateral candidate is genuine about being open to a move, but may become more satisfied with her current situation after seeing that her home school is willing to fight for her. That's not going to be fixed through an upfront fee.

It seems that one way to address the disingenuousness that is the subject of this proposal would be to focus on candidates with ties to the area where the hiring school sits. A person from Iowa, for instance, would seem to have a good reason to leave a law school in, say, New York City for one anywhere in the midwest (particularly one in Iowa). Without that sort of connection, perhaps an upfront fee would eliminate some uncertainty, but some uncertainty seems a small burden for the hiring institution (which, after all, holds all the cards at the beginning) to bear.

Posted by: anon prof | Oct 29, 2010 3:29:29 PM

Anon prof, I hasten to respond that no blog post should be required to satisfy the question of whether the problem addressed is "that big a problem"...this is nothing more than a musing:-)
Also, as I suggested in earlier comments, it's more of a problem for some schools than it is for others, and thus each school has to decide whether it's the victim of soft exploitation or not, and whether it is recruiting or sifting candidates.

Posted by: Dan Markel | Oct 29, 2010 3:40:33 PM

Dan, I think you are actually trying to address two somewhat different issues. (1) how to sort between candidates who are truly interested versus those who are not, and (2) how to allocate the cost of interviewing.

On the first issue, your idea bonding costs has the problem that there is not much of a correlation between willingness/ability to pay and actual interest in the school: willingness to pay is rather more directly correlated with the expected gain (which might in fact be higher for those acting in bad faith than good). On the second, there might be some fairness reason to say that candidates should pick up a greater portion of the tab, but it is different from the sorting function you are trying to achieve.

Posted by: TJ | Oct 29, 2010 6:32:05 PM

The information flow would be even better if law schools were forced to make clear which candidates they're really interested in. I suggest that they pay each individual they interview $250. (After all, the interviewees are the only ones there paying their own way.) This would cut down on the number of schools who waste the time of interviewees that they have no real interest in hiring. The fee would be refunded if the interviewee accepts a callback and is either rejected or turns down the job.

The $250 might be too low at the elite level, but we could scale it up based perhaps on the size of the institution's endowment.

Posted by: Frank Snyder | Oct 30, 2010 12:08:01 AM

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