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Tuesday, September 26, 2006

More reflections on hiring

The hiring season seems to be occupying a lot of lawprof bloggers around now, and not surprisingly, given the hiring calendar.  As I’m becoming more experienced in this area (having served on our appointments committee for six years now) I’ll begin my blogging stint with some observations on hiring, which I will continue over the course of the week.  Apologies for the inevitable redundancies.

My main topic today is what I’ll call, for want of a better term, the IBM problem.  With a market that is so deep in talent, it’s easy for most schools to focus on non-risky candidates, that is, those that have all the right standard credentials (a J.D. from a top-10 law school, a clerkship, etc.).  Many decision-makers in the process have incentives to do this.  Appointments committees will get less flack from their faculties about not doing a good enough filtering job and will have to do less of a sales job to avoid an embarrassing and potentially faction-based “no proceed” vote at the hiring meeting.  The “institution builders” among the faculty will feel more comfortable that they haven’t chosen someone who might trigger a difficult and unpleasant tenure fight a few years down the line.  Faculty obsessed with rankings, or whose own self-worth turns in part on the prestige of their institution, will feel good when the next “New Faculty” brochure goes out in the Fall touting the school’s newest bright young things.

Note that this is not exactly the “replication problem” that has been cited by many critics of the hiring process, where faculties stand accused of seeking to hire younger versions of themselves. Given what seems by most accounts to be the significantly increased quality of the candidate pool over the last twenty years, the (non-)joke that many current faculty could not get a job at their current school suggests that, at least in terms of raw quality, many faculties are not hiring younger versions of themselves.  Better credentialed versions, perhaps.  But not clones.

So, just like the old saying that nobody gets fired for purchasing IBM computers (OK, a very old saying) nobody gets criticized for hiring the last Harvard B.A. /Yale J.D. /Second Circuit clerk with an article placed in top-20 journal.  Unless you happen to have a dissenter among the faculty – or better yet, on the appointments committee.  Such a dissenter protests the uncritical reliance on standard credentials.  She may be motivated by a concern that the process of racking up the standard credentials is one that is not fully open to women, people of color or people from lower socio-economic classes (see, e.g., the recent news about the dearth of female Supreme Court clerks).  Or she may just be disenchanted by what can seem at times the cookie-cutter nature of so many top-tier candidates.

Yet for all of our pretensions to independent thinking and, in most cases, to social justice, such dissenters are rare, and I believe they become rarer as an appointments process continues.  Why?  Because dissenting is just that – objecting to the process, or to its results, rather than offering affirmative suggestions either for how to do a search differently or who different to choose for the screening interview.

It’s not that dissenters are lazy, or don’t have a vision for who they’d like to see chosen for the interview.  It’s simply that the sheer mass of candidates makes it impossible for anyone to do the kind of careful parsing of resumes that allows someone to make a principled choice between non-traditional candidate A and non-traditional candidate B.  This isn’t saying anything profound; it’s really just restating the conclusion that in a deep field of candidates it’s natural for committees to look for reasons to reject people, and difficult for someone to justify an idiosyncratic choice in a way that allows the chooser to conclude that he’s choosing methodically.

Of course a few non-traditional candidates do get through the filter.  But my sense is that this happens because they have at least some standard credentials, plus something pretty unusual that makes up for the lack of the rest.  And of course standard credentials do matter to some degree when considering the reasons a school hires a tenure-track faculty member.  In particular, whether a candidate has published prior to going on the market is probably the best predictor of whether she will become a productive scholar.  On the other hand, there’s no reason to think that such credentials correlate with teaching effectiveness, either with regard to substantive law or the “softer” lessons of becoming an effective and ethical advocate.

Of course, at the end of the day (or several years) most professors earn tenure.  That fact could be taken as a vindication of the predictive power of the standard credentials.  Or it could be that the hiring of candidates with those credentials starts to influence tenure standards.  It would be fascinating to construct an experiment in which tenure-track positions were given based on a lottery involving all candidates who meet some reasonable level of qualifications.  We might lose our most brilliant scholars.  Or maybe not.  Or maybe brilliance would be redefined.

Posted by Bill Araiza on September 26, 2006 at 06:46 PM in Life of Law Schools | Permalink


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No ever gets fired for buying Lenovo laptops.

Posted by: Bart Motes | Sep 27, 2006 4:20:58 PM

As the chair of my school's Appointments Committee, I think about these issues a lot (especially now). I'm also skeptical about looking only at candidates with the same types of pedigree (law review at top 10 school, Circuit Court clerkship, publication in certain law reviews).

The practical problem is this. Appointments Committees need to go through about 1,000 applications (between the AALS books and resumes that come in the mail or through friends and colleagues). The qualifications of many to most of these folks are usually fairly impressive in at least some ways. The challenge for Appointments Committee members is to figure out what OTHER sorts of credentials, experience, etc., indicate that candidates will be good teachers, publishers, and colleagues, things to look for that will still allow some significant paring-down of the initial pool.

The ultimate problem, of course, is supply and demand. Far more people want to do this job then there are job openings. Still, lawyers looking for teaching jobs in law schools are in a much better position than, say, English or History PhDs looking for jobs teaching in those fields.

Posted by: Joseph Slater | Sep 27, 2006 10:08:27 AM

I have taken the "shame on us" position in other posts, but let me defend the system that Bill A. criticizes. Given the deep pool of talent, why shouldn't it be spread across all tiers of law schools? In other words, as more schools hire more traditional candidates, won't all schools eventually be replicas of top tier schools, perhaps with different critical approaches and perspectives, but with the same professional and academic demeanour? If professional education is about producing the best, why shouldn't someone who, for whatever reason, ends up at Bushrod Washington Law School (a law school as prestigious as the justice it is named after) have the same education as [insert name of favorite 17th or 18th C minister or 19th Century industrialist] Law School?

My point is this debate about who gets hired and how should occur simultaneously with what we think legal education is about.

Posted by: Shubha Ghosh | Sep 26, 2006 10:49:53 PM

While I appreciate the honesty of this post, it, taken together with similar blog posts and comments, essentially describes a system that looks very much like a country club for the typically over-privileged graduates of the nation's elitist institutions of higher education. (Just check out the average socio-economic standing of the parents of students attending such institutions).

At this point, certain members of the legal academy seem ready to say, "wow, this is pathetic and perhaps wrong; we should really try harder to focus on merit and performance rather than pedigree (both b/c it's the right thing to do and will make for stronger faculties); but it's hard and there are reasons why we can't - sorry, we're not up to it." I suppose that this is better than the academy's smug, self-congratulating past, but it remains a shameful situation; especially in state schools where the privileged enjoy their positions largely via the funding of working class taxpayers.

Posted by: Foxworthy | Sep 26, 2006 9:35:38 PM

Veyr good post. There are some solid dissenters on my faculty, and we're much better off for it.

Posted by: lawprof | Sep 26, 2006 9:17:58 PM

Great post. I've tried to be a dissenter, but it's tough. The "self-replication" problem is likely to be a serious one, and to further drive the legal academy away from the concerns of law & society at large, so long as peer school "reputation ranks" dominate the USNWR rankings (and thereby provide an opportunity for severe punishment of "deviant" law schools that try to break the hiring mold).

Tenure has a role here. There is such a high chance that the hired person will get tenure that people are afraid to "take a chance" on someone who "won't fit in." I'm certainly not saying that tenure protections are bad for this reason. But they certainly raise the stakes of hiring.

Posted by: GBQ | Sep 26, 2006 7:06:00 PM

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