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Thursday, August 13, 2009

Our duty to keep law schools amphibious...

For my sins, I have been appointed for the third straight year in a row to serve on NYU's appointments committee. After reflection, I have decided that the best way for me to avoid further assignments is to be so honest about my hiring priorities that I thereby shock my dean and colleagues into appointing some one more suitable for the job.

To use a metaphor, I think that our primary duty is to keep the law school amphibious. Law school faculty members can typically be arrayed along an axis of academic depth ("the water environment") versus practical groundedness ("the land environment"). Faculty members, therefore, tend to lean one way or the other: Some are ace lawyers (say, Georgetown's David Vladeck) who are most at home on the solid ground of the courtroom, and some are purely academic specialists in some non-legal discipline -- lungfishes, if you will -- who rarely clamber up on land even to write an amicus brief or comment on a case (say, NYU's own John Ferejohn or Tom Nagel or Chicago's Brian Leiter). The challenge is to hire a faculty that has a mix of really aquatic and terrestial creatures in which everyone is a bit of an amphibian, mutually intelligible to each other and capable of participating in the same workshops profitably.

Two years' of experience on the appointments committee here at NYU and two on Michigan's committee have taught me that this is harder than it sounds. There is always a risk that the swimming critters and the land critters will suspect that the other group has contempt for the other's ecology and, as a defensive reaction, nix each other's preferred candidates.



In theory, everyone should understand that candidates should be judged on a sliding scale: We should be able to hire non-JDs with outstanding non-legal academic credentials as well as outstanding practitioners who have never written a purely academic article in their life, just so long as both groups care about the law and can talk intelligently to each other. But I've had colleagues who would turn down Brandeis himself for lack of sufficiently theoretical writing as well as colleagues who would nix Socrates because he lost his only case in his sole courtroom appearance.

I do not know the trick to avoiding these sorts of fights. But I plan to reject the myths of both the die-hard fish and the confirmed terrestials. I do not believe that a candidate needs a JD to be a great member of a law faculty: In my view, the only legal "method" is (quoting T.S. Eliot's view of literary criticism) "to be very intelligent." (The JD-less Don Herzog of Michigan teaches a legally deep class on First Amendment law that covers more doctrine in greater depth than most JD-taught courses). And likewise I do not believe that one needs to have ever published a single "theoretical" article if one's practical experience is sufficiently deep and varied.

The important point is that each type of candidate have a temperament of respect for what the other group is doing. The practitioner who has spent years lobbying Congress or practicing in a courtroom cannot play the harrumphing Philistine, irritably denouncing (for instance) mathematical models of voting behavior in legislatures or on the bench as "over-simplified." (Of course such models are over-simplified as a descriptive matter: So are subway maps of NYC -- but they are still helpful if they are testably predictive of where one will end up). Instead, the practitioners ought to be inquisitive about methods that they do not understand, asking for "intuitive" explanations in plain English and discussing those explanations in the terms of the relevant discipline. Likewise, the aquatic life forms ought to be able to speak and write English and communicate their academic insights in language that an intelligent lawyer, judge, or law student can understand, and they ought to be asking questions about which such an audience could conceivably care. An exclusive focus on refinements in discipline-specific methodology is a great thing -- but not a great thing for a law school.

Within these parameters, I'll vote for anyone, with or without the requisite union card of a JD or Ph.D, with brains and knowledge. I do not know whether this hiring philosophy will be a success with my colleagues. If not, then at least I'll get the more than adequate compensation of not being appointed to the appointments committee again.

Posted by Rick Hills on August 13, 2009 at 11:21 AM in Life of Law Schools | Permalink

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Speaking in my capacity as UCLAW's appointments committee's co-chairman, but emphatically not on behalf of the school or the committee as a whole, I was both amused and persuaded by Rick Hill's argument in favor of an amphibious hiring policy (even tho... [Read More]

Tracked on Aug 13, 2009 3:32:17 PM

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In answer to "Candidate," here's my hiring Credo: I believe that the law school "dream team" would consist of ...

(a) 20%-30% "pure fish": I.e., Big Brains who are respected experts in disciplines relevant to the law -- psychologists, economists, political scientists, philosophers, historians, etc. Ideally, these big fish should have a joint appointment with the relevant academic department at the university as well as the law school. No JD required for these members of the faculty: They are ambassadors to the rest of the law school from the rest of academia, not lawyers. Of course, they have to care about the law and communicate with their colleagues, so they will often have a JD. But their lack of practice experience is completely irrelevant to me, so long as they play well with the terrestials and amphibians. Obvious outstanding examples of some vbig fish are Brian Leiter (Chicago); Don Herzog and Jim Hines (Michigan); Tom Nagel, Stephen Holmes, Jeremy Waldron, and John Ferejohn (NYU); Scott Shapiro and Jim Whitman (Yale); etc. In a faculty of sixty, I would like to have 15 such ambassadors -- say, three people from each of the Big Four (philosophy, history, poli sci, and economics) and a few from psychology, anthropology, sociology, etc. I would not balk at having these non-JDs teach first-year courses or otherwise be fully integrated with the rest of the faculty.

(b) 30-40% amphibians: These will be JDs with serious interest,s and perhaps a masters degree or even a Ph.D, in some non-legal academic discipline. Ricky Revesz as an economically minded environmental law professor comes to mind as a good example. Unlike the pure fish, they will be primarily lawyers with not only distinguished clerkships but also some years of serious practice experience and aspirations for going into government, working on law reform, etc. They might have a "dry" appointment in a non-law department at the University, but their comparative advantage is not original research in that non-legal discipline but rather arbitrage: They see opportunities to deploy academic insights developed elsewhere to legal problems with mid-level theory. Ideally, the amphibians would have, say, a second-year grad students' familiarity with the literature in their cognate discipline at the beginning of their career. By the time that they get tenure as a law prof, they might even be ready to take a qualifying exam to be ABD. They are the glue holding the practice-oriented faculty together with the fish.

(c) 30%-40% terrestrials who can swim: These are distinguished law practitioners mostly focused on doctrine and practice to such an extent that they will generally lack a thick familiarity with any academic discipline outside of law. They make up for it by being in the thick of current legal work, writing briefs, drafting statutes, submitting comments on pending rules, negotiating settlements, etc. They are distinguished from pure lawyers in their tempering habits of advocacy with an academic curiosity about what the law should be and not merely what it is. Often they would be clinicians. As a corollary to my theory of the ideal law school, I would make clinics mandatory and integrate them much more closely into the "academic" side of the law school -- but that's a subject for another post.

Obviously, our current law schools do not resemble this model, mostly because the last category is under-represented. Of course, the distinguished visitors, fellows, adjuncts, etc., in part correct this deficiency. But these temporary sojourners are often not well-integrated with the rest of the faculty. I'd like an eco-system, not a zoo inhabited by different species segregated in their cages.

Posted by: Rick Hills | Aug 13, 2009 11:12:42 PM

For the record, I am about to publish an article which cites several court cases.

Posted by: Brian | Aug 13, 2009 8:02:23 PM

Interesting analogy. I'm curious about whether you think that law schools tend to hire too much from one pole or the other. That is, do you think they should be hiring more candidates who have something to offer from both worlds, even though they have neither a Ph.D nor an "ace lawyer" badge?

Posted by: Candidate | Aug 13, 2009 1:38:36 PM

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