Law Professor Lateraling 101: Part 9 (The Negotiation)
posted by Paul Secunda
So you have a lateral offer in hand. Now what?
Assuming you did not accept the offer on the spot (which you shouldn’t), the time has come to negotiate. How hard should you negotiate with possibly your future boss? Hard. Here’s why: this might be the last, best chance you have to establish with some leverage the terms and conditions at your prospective new workplace. As one wise friend in the academy put it to me: “Don’t be afraid to negotiate hard, especially over compensation. I was too soft. Once you are there, you have zero leverage. Get the number you want now, not ten years from now.”
As far as the list of possible negotiation points, it is a long one and whether you need to address each of these issues depends on your current situation. For instance, where you stand with regard to tenure is THE BIG DEAL if no one has voted on your tenure yet. Schools take VASTLY different stances on whether they will credit previous years and how long you need to wait before you are eligible to go up for tenure.
Although my two offers came only one year apart, the first school wished me to wait until my third year on their campus before going up for tenure (which would have meant that I would have not gone up for tenure until my 8th year!), while Marquette was able to make me an offer with tenure. Now granted, I had just been voted tenure by the faculty at Mississippi and so Marquette had many of the materials it needed (including external reviews) for promotion and tenure purposes, but that still doesn’t explain the vastly different offers in this regard I received. To be fair, state schools tend to be more constrained by University policy, so such schools might have less ability to work with you on tenure issues.
But at the very least, my experience suggests it might be easier to lateral once you already have tenure as opposed to trying to move pre-tenure. I know there are many arguments out there that you are more desirable pre-tenure because your upside is greater and there is less commitment necessary by the new school, but consider from a candidate’s point of view. What if you move to a new school without tenure, something goes dreadfully wrong before you go up for tenure, and then you are out in the cold without a job at all at on the tenure-track in the academy?
Tenure remains the gold standard in the legal academy, and you should ask yourself whether it might be better to stay at your current school where tenure may be assured vs. venturing out and taking a chance of losing the greatest job in the world (I really do believe that). If you do consider jumping pre-tenure, make sure you ask: will I get full credit for prior years spent on the tenure track; will my existing publications count towards tenure; and is there a possibility of early tenure if merited and if so, what are the conditions for going up early?
So, that’s tenure. Other issues?
The more important ones to discuss include: sabbatical (schools seem rather firm on not giving credit for sabbatical for years spent at another institution but schools are flexible to a larger or smaller degree on this point), moving expenses (if you can, accept nothing less than the school will pay the full move), subsequent trips to look for homes and do spouse interviews (get at least one of these, but two if possible – one house hunt is never enough), course load and courses that you will teach (here, depending on the prestige of the school, 3 or 4 courses may be normal, but if it’s 4, try to negotiate a few 3 year loads so you can do your move and have a smooth transition. Also try to be somewhat flexible on the courses you will teach, but don’t agree to teach a class that will make you miserable. Also try not to agree to too many new preps while you’re making the transition), and research resources (including a travel budget, summer grants, research assistants, book allowance, etc.).
On this last item, the sweetness of an offer can be made especially sweet if summer grants and travel budgets are not only generous, but are guaranteed for a few years after your arrival and one can exceed their budget to attend speaking engagements as necessary. Not only do schools seem to have more flexibility in these areas of compensation, but it does say a lot about a school’s commitment to scholarship and becoming more visible in the larger academy. On other hand, if the school is being stingy on, or completely cutting out, things like conference travel, research grants, and research assistants, my advice is: run and run fast.
On the other hand, bar dues and organizational membership fees (like in Law & Society) may or may not be something you want to waste much time negotiating over. Another thought: if you are relatively senior, you may want to ask for start-up funds to set up a program, institute, new law journal, or research program beyond what is normally given for research funds.
More or less important points you may wish to discuss include: the type of computer you will get and how often it will be replaced (how about a blackberry or other smart phone?), benefits (including 401(k) retirement and health insurance. Here there is probably little you can negotiate as these benefits are usually set campus-wide), will the school help with spousal job assistance (and what type of assistance – merely passing out a resume or pushing hard for the spouse to get a job. Obviously, this can be very important for some couples), and maybe an initial research leave (especially if an early sabbatical is not possible).
Finally, this is probably just personal taste, but things I would negotiate less (if at all) on include: parking space (no need to annoy senior colleagues. Get some exercise!), postcard announcing your arrival (just strikes me as tacky), and tickets to sporting events. On the last one, Marquette basketball is pretty darn good and it probably would have been next to impossible to score seats. On the other hand, if you are lateraling to a school without much of a football program (say Notre Dame or Michigan) or basketball program (say Florida or UCLA), it shouldn’t be a problem. 
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All in all, there is a lot to talk about with the Dean and it likely will take a number of conversations and emails to sort this all out. So try not to be rushed into a decision or rush the school for that matter. A good dean will understand that an unreasonable exploding offer is not a good idea if one wants to start off with a happy new faculty member come the Fall semester.
With that out of the way, all that’s left now is to decide whether to make the jump or hold pat. But as we will discuss in the next (and last?) post, your current school may have something to say about that.
February 14, 2008 at 12:53 pm
Posted in: Law School (Hiring & Laterals)
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Responses (5)
Chris - February 14, 2008 at 1:33 pm
If you’ll stay, I won’t ever make silly comments on your posts again!
Stephen M (Ethesis) - February 14, 2008 at 6:13 pm
Negotiation is really an interesting topic, especially blending preserving and creating an environment vs. maintaining and keeping respect.
Not to mention the tangibles.
Orin Kerr - February 14, 2008 at 7:49 pm
On the other hand, bar dues and organizational membership fees (like in Law & Society) may or may not be something you want to waste much time negotiating over. . . . .
More or less important points you may wish to discuss include: the type of computer you will get and how often it will be replaced (how about a blackberry or other smart phone?)
Interesting. It never occurred to me that a law school might pay a professor’s bar dues, organizational memberships, or for blackberries and the like. I wonder, is that common?
Orin Kerr - February 14, 2008 at 7:51 pm
Oops — my formatting is messed up. It should be the first two paragraphs in italics (as they are Paul’s), not just the first paragraph.
Travis - April 3, 2009 at 9:12 am
Where did you get this picture?
Thanks!
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