As I’m on Temple’s hiring committee this semester, I’ve noticed that several candidates’ first response to this question starts with some version of the following: “well, the internet basically answers most of questions that I might otherwise have had.”  And, of course, that’s true.  So I figured I’d open a thread for folks to suggest questions that they find to prompt useful answers.  Here’s mine: what is [X] law school doing about rising tuition, and consequent borrowing?

 The workshop will take place at GW on April 1 and 2, 2011.  We are delighted by the submissions, congratulate those chosen, and stress that making the selections was difficult because of the volume of amazing papers.  We encourage everyone interested to attend and look forward to the weekend.

Adam Leviton (Georgetown), In Defense of Bailouts [George Geis (Virginia) & Art Wilmarth (GW)]

Jodie Kirshner (Cambridge), A Transatlantic Perspective on Regional Dynamics and Societa Eurpoea [Francesca Bignami (GW) & Theresa Gabaldon (GW)]

Alan [...]]]> Thanks to my colleague, Lisa Fairfax, GW has finalized the program for this year’s Junior Faculty Business and Financial Law Workshop and Prize (detailed here).   Of the more than 100 papers submitted, the following dozen presenters were chosen.  [Commentators appear in brackets; I've shortened some paper titles.]  

 The workshop will take place at GW on April 1 and 2, 2011.  We are delighted by the submissions, congratulate those chosen, and stress that making the selections was difficult because of the volume of amazing papers.  We encourage everyone interested to attend and look forward to the weekend.

Adam Leviton (Georgetown), In Defense of Bailouts [George Geis (Virginia) & Art Wilmarth (GW)]

Jodie Kirshner (Cambridge), A Transatlantic Perspective on Regional Dynamics and Societa Eurpoea [Francesca Bignami (GW) & Theresa Gabaldon (GW)]

Alan White (Valparaiso), Welfare Economics and Regulation of Small-Loan Credit: Lessons from Microlending in Developing Nations [Michael Pagano (Villanova) & Lawrence Mitchell (GW)]

Nicola Sharpe (Illinois), Corporate Board Performance and Organizational Strategy [Deborah Demott (Duke) & Michael Abramowicz (GW)]

Julie Hill (Houston), The Rise of Ad Hoc Bank Capital Requirements [Anna Gelpern (American) & John Buchman (E*Trade Bank & GW Adjunct)]

Michael Simkovic (Seton Hall), The Effects of Ownership and Stock Liquidity on the Timing of Repurchase Transactions [Richard Booth (Villanova) & Henry Butler (Mason)]

Michelle Harner (Maryland), Activist Distressed Debtors [Donna Nagy (Indiana Bloomington) & Lisa Fairfax (GW)]

Saule Omarova (UNC), The Federal Reserve Board’s Use of Exemptive Power [Patricia McCoy (Connecticut) & Arthur Wilmarth (GW)]

Heather Hughes (American), Suburban Sprawl, Finance Law and Environmental Harm [Scott Kieff (GW) & Lawrence Cunningham (GW)]

Robert Jackson (Columbia), Private Equity and Executive Compensation [Norman Veasey (Weil Gotshal) & William Bratton (Penn)]

Brian Quinn (BC), Putting Your Money Where Your Mouth Is: Post Closing Price Adjustments in Merger Agreements? [Gordon Smith (BYU) & John Pollack (Schulte Roth)]

Mehrsa Baradaran (BYU), Reconsidering Wal-Mart’s Bank [Heidi Schooner (Catholic) & Renee Jones (BC)]

This is one of many events sponsored by GW’s Center for Law, Economics and Finance.

Though faculties will be spared, the law is incredibly stupid.  Mobile employees – that is, the cream of the crop – will be motivated to leave the State’s workforce so they can live where they want.  Though there many good reasons to shrink the size of government’s payroll, especially if the State is [...]]]> Some time back, a few blogs reported on an early draft of a New Jersey bill that would seem to have required New Jersey state employees, including the law faculties of Camden-Rutgers and Newark, to maintain a New Jersey residence.  Not surprisingly, the final draft of the bill, now before Gov. Christie for his signature, contains provisions providing schools an easy way to claim exemptions for newly hired faculty (older hires being entirely grandfathered).

Though faculties will be spared, the law is incredibly stupid.  Mobile employees – that is, the cream of the crop – will be motivated to leave the State’s workforce so they can live where they want.  Though there many good reasons to shrink the size of government’s payroll, especially if the State is going to underfund its workers’ pensions, this seems like a pretty foolish way to go about it.  Maybe Governor Christie will pass up on the opportunity for cheap populism and make an articulate case for a well functioning government in the long term … but I sort of doubt it.

Instead, this task seems to be a service duty each tenured academic has to the broad academy as a whole. True, writers invariably receive a warm “thank you” note from the Dean at the requesting school and appreciation from the home Dean and Provost as part of their annual review of faculty contributions. There’s also the intrinsic reward of [...]]]> Most schools don’t pay honorariums to outside scholars to write tenure letters (that vital component of a professor’s application for promotion and tenure), whether on internal promotions or about lateral recruits. At least that’s been my experience, based on writing about 25 of them since my own first tenure 15 years ago and requesting them on behalf of a couple of schools.

Instead, this task seems to be a service duty each tenured academic has to the broad academy as a whole. True, writers invariably receive a warm “thank you” note from the Dean at the requesting school and appreciation from the home Dean and Provost as part of their annual review of faculty contributions. There’s also the intrinsic reward of engaging deeply with a single scholar’s body of work and writing a report for an audience not necessarily expert in the particular field.

On the other hand, writing a thoughtful and fair tenure letter requires many hours of work, at least five and often ten or sometimes more. As a result, at least one school pays $250 for the service.

Should other schools pay money too or should that school stop spending money it need not spend? My vote is to save the money. If offered the honorarium, I favor asking the school to reallocate it to PILF (the Public Interest Law Foundation) to fund stipends for law students working in the public interest.

What do you think?

Interviewing faculty candidates for two days is a bear (and the same is true for the candidates, of course).  As Steve McCroskey said in Airplane! — “I picked the wrong week to quit drinking.”

With the FAR form due later this week,  all those of us who went through this process as entry-levels can commiserate with our students, fellows, etc, just beginning the process. Love or hate the entry-level recruiting process, one thing seems obvious to me: we can make it better. To that end I invite readers to add to this thread with their suggestions for improving this process, with one proviso: make it cheap! If you could change something in the process at low or zero cost, what would it [...]]]> Thanks to Dan, Angel, and the rest of the Concurring Opinions crew for inviting me to blog this week.  I’ll try to vary posts between scholarship/ideas, faculty life, and pop culture (and all permutations thereof).

With the FAR form due later this week,  all those of us who went through this process as entry-levels can commiserate with our students, fellows, etc, just beginning the process. Love or hate the entry-level recruiting process, one thing seems obvious to me: we can make it better. To that end I invite readers to add to this thread with their suggestions for improving this process, with one proviso: make it cheap! If you could change something in the process at low or zero cost, what would it be? I give a few of my own answers below, but hope others will contribute through the comments:

1. Re-work the course listings to be selected on the FAR form. As I recall there were 4-6 differently named courses in my primary field (law and medicine, health law), while for others their field was not an option at all. I recognize that nomenclature is fluid, but it seems to me it would not be that hard for someone at AALS to compare their categories to course offerings at 5 member schools and bring them more into accord.

2. One tower, please. Did you know the Faculty Recruitment process measures not just legal acumen and collegiality but athletic ability? You have if you have ever tried to get from the top floor of one tower of the Marriot Wardman tower to the top floor of the other in less than 5 minutes using the stairs. Candidates are stressed and late, interviews go over, chaos ensues. Is it really impossible to put every committee in one tower, if you are booking the conference several years in advance? I know committees are of different size, and also opt for rooms of different grandeur, but a tighter squeeze or less opulence would be easy prices to pay for less rushing.

3. Get a blowhorn. At attending the American Law and Economics Association meeting one year I was amazed to find that each session is so precisely divided by the number of allocated minutes to each speaker, that at the designated point a blowhorn is aired throughout the hallways, and people leave and enter rooms to hear different speakers in the same session. Assuming that the FRC takes up much of the Wardman, could something similar be done to keep interviews on their timetable? That way there would be no awkward knocks on the door, or sweating when a particular committee held you over cutting into your next appointment.

I’m thinking small (too small?) but I’d be curious what other constructive cheap fixes people have thought of over the years.

In law, lacking a tradition of co-authorship, there appears to be at best a weak norm that the first author is the primary contributor. That [...]]]> Other disciplines don’t kid around about the ordering of authors in publications.  In political science and economics, alphabetical or reverse-alphabetical ordering is the dominant approach, even though it distorts hiring decisions.  In science, the first and last names matter – woe to the middle men!  Harvard is so concerned about the trend that it instructs its faculty to “specify in their manuscript a description of the contributions of each author and how they have assigned the order in which they are listed so that readers can interpret their roles correctly [and] prepare a concise, written description of how order of authorship was decided.”

In law, lacking a tradition of co-authorship, there appears to be at best a weak norm that the first author is the primary contributor. That results in a set of interrelated problems:

1)  To law audiences, the first author did the most work, and is rewarded in two ways.  The first is qualitative, and pops up at tenure, promotion, and lateral review — “he was the driver on that piece,” or “she was just the second author.”  Quantitatively, the bluebook foolishly permits multiple author works to be et al’d, meaning that the second through nth authors never get to see their name in the citation print.  Given the rudimentary nature of impact citation analysis in the legal academy, this mean that people who are listed first get the citations and the people who aren’t don’t. This might be less troublesome if the “first author” norm was correct — that is, if first authors in law reviews actually did more work. But my bet is that given letter head bias, many co-authored pieces list as the first author the most prominent author (or at least the author at the best-ranked school).  The upshot: first authors in law reviews are rewarded for being first in both qualitative and quantitative terms, though it’s not clear they ought to be.

2)  To other disciplines, this is fundamentally screwy and is another reason not to publish in a law review.  But interdisciplinary co-authored work published outside of the law reviews becomes that much more difficult as a result.  If a law professor and a non law professor were to publish in an economics journal, my sense of the norm is to alphabetize. [Correct me if I'm wrong here.]  Non legal audiences look at this and understand that it doesn’t signify relative contribution.  Law audiences don’t have that filter on, and the result (again) is that the second author is punished, here for having a last name at the back of the alphabet.

3)  Making sense of this mess requires coordination, which is quite hard because we lack a learned society that is sufficiently respected to impose change from above.  We do have, however, a few very strong journals that have had remarkable success in changing otherwise intractable scholarly pathologies like article bloat.  If the Harvard Law Review could -almost singlehandedly – impose a 25,000 word limit, surely it could fix this problem too.  In my view, the top few journals (HYS) ought to, as a part of their blue-booking project, agree to impose something like the Harvard faculty author order guidelines on folks who are publishing joint projects in their pages. The default ought to be reverse alphabetical listing.  Each article should state the respective contributions of the authors and, to the extent that they have deviated from the alphabet, why.  Finally, HYS ought to reform the bluebook to insist that the first citation of any work include the names of all contributors to the piece, rather than permitting et al. treatment.

But an excellent article well-placed also often translates into annual salary increments above a school’s merit pay raise pool. That can bump a raise up anywhere from 1% to 3%, or more, depending on the article and how one’s home-school peers do.

For a mid-career scholar earning a base salary of $200,000, say, that means as much as $6,000 or more. For that person, adding $6,000 a year for life, the article’s economic value gets well into the six figures (even discounting [...]]]> What’s the economic value of that scholarly article many law professors will write this summer? For the many schools that award scholars summer research grants, it is at least the value of that allocated to the piece—usually $12,500 to $20,000 at most US law schools.

But an excellent article well-placed also often translates into annual salary increments above a school’s merit pay raise pool. That can bump a raise up anywhere from 1% to 3%, or more, depending on the article and how one’s home-school peers do.

For a mid-career scholar earning a base salary of $200,000, say, that means as much as $6,000 or more. For that person, adding $6,000 a year for life, the article’s economic value gets well into the six figures (even discounting to present value).

For others, true, the payoff is less—but still considerable. Take a more senior professor earning $250,000 with only 10 years of teaching left. The increment adds some $60,000 in present economic value.  Even an entry-level professor at the other end of the earnings spectrum, making $100,000, say, and getting even only a 2% bump, enjoys lifetime payoff about half that.

And that’s not all on the economic front. Add to that the value that may arise from influential articles that lead to lateral recruiting offers at higher pay or that induce one’s home school to outbid competing schools seeking to move them. Incremental annual differences in those settings can be tens of thousands of dollars, translating into many multiples of that, lifetime.

Even so, law professors, especially at mid-career, are commonly tempted to take up consulting or other work during the summer for lucrative but one-time compensation, eating into scholarly writing time.  It may be possible to do both.   But the opportunity cost of scholarship is high. The consulting work must be extremely lucrative to be preferred.

And all that is before considering the psychic and professional benefits from a self-selected scholarly assignment, a creative job well done, and making a contribution to knowledge.  It is difficult not to prefer writing the article to nearly any other professional pursuit.

In her career, Kagan has written a total of about 350 pages of legal scholarship that has been cited a total of about 600 times. People seem to disagree about what this scholarly oeuvre adds up to: close to nothing (e.g., Paul Campos), something quite substantial (e.g., Eugene Volokh), or not particularly remarkable in either direction (e.g., Erin Miller).

People also disagree about which of her various pieces count as major articles (the foregoing commentators count three, four and five, respectively) and even disagree about how [...]]]> How many scholarly articles (five, four or three) has Elena Kagan, the President’s Supreme Court nominee, published? How many years had she been an academic before becoming Solicitor General last year (eight, eighteen or something in between)? What does it matter?

In her career, Kagan has written a total of about 350 pages of legal scholarship that has been cited a total of about 600 times. People seem to disagree about what this scholarly oeuvre adds up to: close to nothing (e.g., Paul Campos), something quite substantial (e.g., Eugene Volokh), or not particularly remarkable in either direction (e.g., Erin Miller).

People also disagree about which of her various pieces count as major articles (the foregoing commentators count three, four and five, respectively) and even disagree about how to define her years in the academy (eight, netting out all government and decanal service, or as many as 18, dating from her first appointment).

There is no mystery about what Kagan has published—a full list including every sort of piece appears at the SCOTUS site; a more selective one appears at the Harvard Law site; another appears below. Disagreement concerns what it means—like the couple receiving marriage counseling in Woody Allen’s Annie Hall.

In my view, as a scholarly record, though it warranted awarding promotion and tenure to a junior faculty member, it would not warrant offering Kagan a lateral tenured appointment at most national law schools in the country today.  But that opinion and the record are simply irrelevant to the question of her qualifications to serve as Associate Justice of the Supreme Court of the United States.

The scholarly part of Kagan’s career can be summarized briefly (and legal scholars familiar with how legal scholarship is usually placed will notice absence of any indication that Kagan is familiar with that process):

(1) Kagan’s tenure file at Chicago consisted of:  a modest Supreme Court Review piece in 1992 to start her career, a book review in a non-traditional journal in 1993, two modest pieces in her home school’s law review in 1993 and 1995, and a culmination of those two in that same home journal in 1996; and

(2) post-tenure, after service in government, Kagan returned to academia—to Harvard—where her record consists of two 2001 pieces, an impressive co-authored piece in Supreme Court Review and a wildly-ambitious and successful piece in her home school’s law review (where she was then moved to serve as Dean).

That’s a perfectly fine scholarly record but not exactly one to which young legal academics should aspire.  The tenure file may have been satisfactory but was not overwhelming.  And the aggregate today would not count clearly favorably toward an appointment as a lateral tenured faculty member at most national law schools.  True, Kagan’s public service and administrative record likely would count favorably for an appointment (and many Deanships will await Kagan if her current ambitions disappoint) but the net scholarship now is light.

Yet it does not matter that appointment as a lateral tenured law professor on this scholarly record would be uncertain.  What it takes to be considered a successful law professor is totally different from what it takes to succeed as a judge or justice (or Dean, for that matter).

Elena Kagan’s Law Review Articles (Reverse Chrono Order)

Presidential Administration, 114 Harvard Law Review 2245 (2001) (when she was a professor at Harvard; 122 pages; cited 306 times)

Chevron’s Nondelegation Doctrine, 2001 Supreme Court Review 201 (2001) (co-authored; journal edited and published by Chicago law faculty, where she previously taught; 56 pages; cited 80 times)

When a Speech Code is A Speech Code, 29 UC Davis Law Review 957 (1996) (8-page symposium piece;  cited 4 times)

Private Speech, Public Purpose The Role of Governmental Motive in First Amendment Doctrine, 63 Chicago Law Review 413 (1996) (when she was a professor there; this paper builds on the two listed below discussing the R.A.V. case; 82 pages, cited 119 times)

Confirmation Messes: Old and New, 62 Chicago Law Review 919 (1995) (15-page book review, while she was a professor at Chicago; cited 10 times)

A Libel Story, 18 Law and Social Inquiry 197 (1993) (21-page book review) (cited once)

Regulation of Hate Speech and Pornography after R.A.V., 60 Chicago Law Review 873 (1993) (23 pages; cited 27 times)

The Changing Face of First Amendment Neutrality: R.A.V. v. St. Paul . . ., 1992 Supreme Court Review 29 (1992) (cited 30 times)

A consensus might say the Committee service is more important as an institutional matter but the article more important as a professorial matter, though institutional and individual virtues appear in both. But if there is a tension, should it be expected to produce much anxiety?

Can the tension be dissolved simply by declaring that academic identity and job description require attention to both, contributing to knowledge and its dissemination, plus appointing excellent or promising new colleagues—who will likewise contribute and disseminate knowledge?

Support for the dissolution view appears in a surprising context in a chapter [...]]]> To law professors, what’s more important, placing an influential article in a leading law journal for teaching everywhere or serving with distinction on the Appointments Committee (and knowing what serving with distinction means)?

A consensus might say the Committee service is more important as an institutional matter but the article more important as a professorial matter, though institutional and individual virtues appear in both. But if there is a tension, should it be expected to produce much anxiety?

Can the tension be dissolved simply by declaring that academic identity and job description require attention to both, contributing to knowledge and its dissemination, plus appointing excellent or promising new colleagues—who will likewise contribute and disseminate knowledge?

Support for the dissolution view appears in a surprising context in a chapter in the erudite new book, The Marketplace of Ideas: Reform and Resistance in the American University, by Harvard University English professor, Louis Menand, author of the 2002 book The Metaphysical Club. The surprising context is one chapter in this four-chapter book exploring the current academic vogue of interdisciplinary inquiry. This phenomenon pervades all academic disciplines, quite clearly in law, though Menand’s focus is the humanities.

Menand notes that amid enthusiasm for this vogue, however, is a sense of anxiety about it. He probes the meaning of this anxiety and discovers it as a displaced anxiety about professorial identity. The vogue may be a critique of the disciplinary divisions of the modern university, a quest for the unification of knowledge.

But that is neither a new vision nor a particularly promising result. Something else seems to be going on and Menand considers that the vogue, and especially discussion about it, may be a screen for something else that is bothering academics: a perceived but unnecessary tension between professors as knowledge generators and as institutional and professional reproducers.

Academic departments and disciplines were consciously shaped, along with the founding of the modern American university, in the late nineteenth century. There is nothing inevitable about so dividing knowledge, but much appealing about it from the perspectives of administration and professionalization.

Most visibly, fields like law and medicine thrived beginning with the development of that model, minting credentials and promoting specialization setting those fields apart from others. (Lawyers teach lawyers and doctors teach doctors; lawyers can’t practice medicine and doctors can’t practice law.) The same happened in other departments, highlighted by peer review and the task of current professors producing and vetting the future producers of knowledge.

This professionalization bestowed authority, social and professional, upon members of the discipline and gained independence from outside influence. Though professionalism is partially achieved by such independence, it is only complete when the “association is no longer perceived as the true source of the professional autonomy.” The legal profession is complete in that sense, when a lawyer’s status derives not from the trivial admission to the bar, but from membership in an ancient profession, with special features, canons and traditions associated with such peculiar notions as “thinking like a lawyer.”

Yet, in recent generations, sensibilities shifted from strong respect for professional boundaries to considerable suspicion of them. Professionalism may have gone too far, into too many fields, meaning a decline in professional authority. That spelled skepticism of the disciplines, and academic departments. Concern arose whether the professors in different fields could talk with another. In a way, the fashion of interdisciplinary work is a response to this.

But, as a model or as an alternative to the disciplines and academic departments, it is not sustainable. It is difficult to give a credential in interdisciplinary studies, though there has been some movement to grant kindred degrees, such as in law and economics. Still there is limited professional identity in interdisciplinary studies. Even with law and economics (or law and any other subject, whether anthropology, biology, history, psychology, sociology and so on), law dominates. Law’s autonomy may decline, as some like Richard Posner theorize, but in all these interdisciplinary enterprises, law is always there and law is the defining and unifying feature.

That is so not only or even largely because of things that may be special about law as such (say “thinking like a lawyer”). It is also about the professionalization of the discipline, and department, as an administrative matter. Current law professors choose who will be future law professors—that’s why serving with distinction on the Appointments Committee is of considerable institutional value. And nothing about the rise of interdisciplinary studies is changing that. The structure of knowledge will not change by interdisciplinary inquiry, given the persistence of professionalization.

And this, Menand detects, may be what’s really behind the anxiety over interdisciplinarity. The rise of professional academic disciplines made research the university professor’s main mission, along with ratcheting up the requirements for academics, to get a job and to attain tenure and other promotions. Advancement becomes a function of national recognition by peers of the discipline—not local or institutional recognition across departments. The result can be anxiety about professorial identity. Are professors about knowledge generation and transmission or institutional and professional reproduction?

Menand draws parallels to the philosophy of art, which can struggle with determining whether a painting or sculpture or other object is really art (“an autotelic aesthetic artifact”) or merely a commercial good. For an academic, what does the status of professor mean, thoughtful scholar or institutional citizen?

These are “bad questions,” Menand cautions, because academics are both and there is no need to choose an identity between these possibilities. Art is both aesthetic and commercial; professors are both institutional reproducers and scholar-teachers.

And law professors seem to get this, suggested by ample enthusiasm for both aspects of identity. Appointments committees are the most important committee at most law schools and bloggers and others rivet attention on entry-level hiring and lateral movements; likewise, scholarly production and placement is the most valued contribution at most law schools and bloggers and others likewise pay a lot of attention to the process of submitting and placing articles in journals.

What about interdiscplinarity in law, the phenomenon shared across the university, of conjoining law with other disciplines as a means of inquiry? Perhaps there should no anxiety about it. But despite much enthusiasm, as Menand detects in other departments, there is often some anxiety. There remains much discussion on appointments matters about whether a candidate’s scholarship is too light on law (a psychology professor “dabbling in law”) or, sometimes, too much law and too little of something else (mere doctrinalism!).

For Menand, interdisciplinarity is a complex anxiety, a displaced anxiety about what professionalization has meant, along with concern about the formal boundaries of disciplines, and the role that administration and institutions played in developing and maintaining academic departments. It is ultimately an expression of frustration. In Menand’s words: “Interdisciplinarity is an administrative name for an anxiety and a hope that are personal.”

Maybe so. If so, we should all get over it. Go write that article, teach that class, and serve on the Appointments Committee—and find people committed to the generation and transmission of legal knowledge—in all its magisterial heterogeneity!

My dean, Fred Lawrence of George Washington University Law School, has started a new blog called 20th & H.  He writes:

20th and H was conceived as a place for me, as dean, to share with the GW Law community occasional thoughts about the Law School, legal education, and the legal profession, and to talk with you about some of the perspectives and insights I’ve gained through my work on campus and on the road.

Great idea!  Welcome to the blogosphere.

Fred has a recent post about laptops in the classroom:

For many of our students, the laptop has become almost an extension of their selves.  It’s how they take notes, research, write, and communicate; like it or not, those of us [...]]]>

My dean, Fred Lawrence of George Washington University Law School, has started a new blog called 20th & H.  He writes:

20th and H was conceived as a place for me, as dean, to share with the GW Law community occasional thoughts about the Law School, legal education, and the legal profession, and to talk with you about some of the perspectives and insights I’ve gained through my work on campus and on the road.

Great idea!  Welcome to the blogosphere.

Fred has a recent post about laptops in the classroom:

For many of our students, the laptop has become almost an extension of their selves.  It’s how they take notes, research, write, and communicate; like it or not, those of us who were students in a pre-computer age simply can’t roll back the clock to a time when faculty members enjoyed the sight of rows of rapt faces and suffered at worse some inattentive doodling, note passing and an occasional nodding head.

Read more over at 20th & H.

“data from the General Social Survey of opinions and social behaviors and compare professors with the rest of Americans . . . to [link] … to the broader question of why some occupations — just like ethnic groups or religions — have a clear political hue. Using an econometric technique, they were then able to test which of the theories frequently bandied about were supported by evidence and which were not . . . The academic profession ‘has acquired such a strong reputation for liberalism and secularism that over the last 35 years few politically or religiously conservative [...]]]> A sure-to-be-blogged article from the NYT hypes the purported findings from the paper “Why Are Professors Liberal.”  According to the Times, the paper (by Fosse/Gross), the paper uses

“data from the General Social Survey of opinions and social behaviors and compare professors with the rest of Americans . . . to [link] … to the broader question of why some occupations — just like ethnic groups or religions — have a clear political hue. Using an econometric technique, they were then able to test which of the theories frequently bandied about were supported by evidence and which were not . . . The academic profession ‘has acquired such a strong reputation for liberalism and secularism that over the last 35 years few politically or religiously conservative students, but many liberal and secular ones, have formed the aspiration to become professors’.”

The theory is plausible — indeed, it is often advanced by those who deny that intentional discrimination has caused the political inbalance in the faculty lounge.  But as the paper admits, and the Times neglects to mention, the data collected – “provide[s] no direct evidence that [the] theory of professorial liberalism is correct.” (p. 50).  Rather, it draws on other studies, which used surveys to argue that conservatives students did not want to emulate their professors (while liberals did).  That, combined with the clustered cultural characteristics strongly associated with being an academic, lends some support to the selection hypothesis.  But it’s not a true test of the hypothesis.  Indeed, I don’t know how you could test such a selection hypothesis cleanly with observational data.

Moreover, I think the paper understates the role that intentional selection plays: the more time I’ve spent in as an academic, the less sure I am that high education’s anti-conservative tilt  is benign or situational.  (That said, I continue to think that conservative scholarship by pre-hiring candidates places over its weight.)

(1) A hiring committee chair talked about doing Google background checks on candidates for inconvenient facts. The rationale was that students would like come across pictures/stories themselves, and it was better to know than not. This struck me as an inevitable development, though sad.

(2) Many people complained about how the nametag culture at AALS encourages attendees to feel bad about themselves.  One solution offered was color-coded nametags that were keyed to the kind of social interaction you might expect.

Red: Individuals who, if spoken to, will inform [...]]]> Here are a few thoughts inspired by conversations I participated in or listened to at AALS (it’s not my fault that people persist in having very loud & irritating conversations over coffee, despite my dirty looks):

(1) A hiring committee chair talked about doing Google background checks on candidates for inconvenient facts. The rationale was that students would like come across pictures/stories themselves, and it was better to know than not. This struck me as an inevitable development, though sad.

(2) Many people complained about how the nametag culture at AALS encourages attendees to feel bad about themselves.  One solution offered was color-coded nametags that were keyed to the kind of social interaction you might expect.

Red: Individuals who, if spoken to, will inform you in great detail about a recent political fight on their faculty. Possible crazy. Avoid.  If you are engaged in a conversation with them, nod vigorously and say nothing.

Blue: Individuals who want a job at your school. Will laugh at your jokes and won’t look over your shoulder for at least two minutes. Engage as needed for a boost.  But don’t commit to anything.

Green: Individuals at schools you want to visit or move to. Will try to avoid you. Elevators are their weakness.

Black: Friends. Meet them later.

Orange: People who won’t deign to make eye contact with you.  There is no point in trying to hunt them down, except after they speak at a session, when they may treat you like a particularly dimwitted student.  Flattery will get you everywhere at that moment.

Purple: Members of your blog. Shouldn’t you know who they are?

Silver: Deans. Also known because they wear suits, and because they are looking at your pockets. Be careful. Their social skills are so much better than yours, that simply being near them makes you look more than ordinarily goofy.

Brown: AALS organizers, looking harried.  If you are outraged, consider engaging them at prepaid lunch over terrible food, when they are at a moral disadvantage.

(3)  I heard one professor telling another than she believed we were working “nine month” jobs since that is how the typical professor contract is worded (and since summer writing is rewarded through “grants” or “bonuses”).  I couldn’t disagree more.  Discuss.

My post on the value of having a PhD in the academic hiring market of 2015 has gotten a surprising amount of attention. I thought I’d respond to some of that feedback here.

By email and by blog, I’ve gotten pushback from those who continue to contest that we’re in an empirical “bubble.”  I take that to mean a fad – a passing interest –rather than an empirical claim that we are valuing work or candidates at more than their intrinsic worth. (How could we get any handle on either side of that equation!) My point about the economics of supply-side data is that it’s a trend that is only going to get stronger in the future. [...]]]>

Llewellyn Knew All About Lamposts

My post on the value of having a PhD in the academic hiring market of 2015 has gotten a surprising amount of attention. I thought I’d respond to some of that feedback here.

By email and by blog, I’ve gotten pushback from those who continue to contest that we’re in an empirical “bubble.”  I take that to mean a fad – a passing interest –rather than an empirical claim that we are valuing work or candidates at more than their intrinsic worth. (How could we get any handle on either side of that equation!) My point about the economics of supply-side data is that it’s a trend that is only going to get stronger in the future. Larry Ribstein certainly is correct to observe that this creates a “looking-under-the-lampost” problem. But of course, legal academics have been in a century-long crouch under a lamppost of their very own. As Llewellyn said:

“I am a prey, as is every may who tries to work with law, to the apperceptive mass . . . [T]he appellate courts make access to their work convenient. They issue reports, printed, bound, to be had all gathered for me in libraries. The convenient source of information lures.” (Bramble Bush)

Looking at newly cheap data about legal institutions encourages people to run fast regressions without thinking. But reading opinions, which are free, has encouraged thousands of legal articles about a dataset which is biased & shaped by selection. (Irrational behavior in response to a “radical price“? Nah.)  Truly sophisticated empirical work doesn’t discount the role of opinions in shaping legal norms, but it does conclude that opinions are skewed and rhetorically hot versions of what judges do, and thus unrepresentative of how practically-grounded lawyers make judgments about how to litigate their cases. Making that insight concrete is but one of the many projects undertaken by the New Legal Realists. Others – law and psychology, law and criminology, cultural cognition, etc. – together convince me that the future of the empirical revolution is pretty bright. And having a PhD/JD is an increasingly important entry credential in the field.

That said, I agree with Larry completely about some of the dangers of getting a PhD, i.e., overspecialization, small-thinking, and looking like “lines” rather than “snowballs. I agree as well that economic pressures will increase the value of law-and-business training, and decrease the value of jurisprudence, though I think the latter courses (outside of elite institutions) are really small parts of the hiring market. The question, for me, is to try to imagine what the typical ideal candidate would look like in 5-6 years, in fields that produce the majority of new hires. Generally, that’s someone who will teach one of the first year courses and who can add a large survey second year course to the pile (contracts & corporations; civ pro & advanced civ pro or evidence; torts & a federal statutory course; con law & fed courts). I look at the first of those pairs and I see immense opportunities for empirical and cross-disciplinary work, and thus lots of returns to getting more methods training.

Others have emailed that I shouldn’t have taken a pot-shot against political scientists writing about law.  I wrote “If law professors don’t write about courts, contracts, crimes, or property using statistics, then political scientists will do so, badly, and will eat our market in shaping legal policy.”  To my poly-sci friends, I admit I was unnecessarily snarky.  However, I do think that lots of work in political science and courts, particularly early work, simply brushed past the influence of legal institutions, ignored procedure, and pooh-poohed the force of selection. And isn’t it time to focus more on trial courts? How many times can you write a paper about ideological voting on a political court and draw conclusions about a system that is dominated by cases that are controlled by precedent?

Orin Kerr offers the following characteristically pragmatic comment: “the track record of PhD-versus-non-PhD hires over the next decade will play a significant role in determining the long-term picture of how much the academy values the credential”. I think this is true, but I don’t know how people will measure it except for anecdotally. As Kate Litvak points out here, measuring the extra influence of having a PhD runs into insurmountable endogeneity problems.

“Suppose we find that people with PhDs write more and better. This could be because PhD training adds value. Or it could be because smarter, more energetic, more ambitious people choose to get PhDs — and they are also the ones who write more and better, for reasons that have nothing to do with their PhD training. Or the opposite could be true…”

While there are ways of thinking about quality that don’t rely on numbers (thank goodness) I don’t know whether such judgments will be sufficiently coherent and strong to press against the practical and economic considerations that I discussed in my post. Simply put, a JD/PhD candidate will usually be better trained, more polished, and will have more publications than an equivalently situated Fellow. Since Fellowships are more likely (in 2015) to lead to VAPs than to tenure track offers, if you are choosing one path or another, I think the better strategy is the PhD.

Finally, a few people wrote in and recommended an SJD, particularly from HLS, as a distinct option that has (in recent years) had a really good track record. I don’t know enough about that program to judge, and I welcome comments on it.

The last few comments on this Prawfs thread raise an inquiry as old as the legal blogosphere: does it maximize to get a PhD on top of a JD if you want to get a job in the legal academy, or can you achieve the same ends with a fellowship, or by publication alone? Five years ago, as law fellowships themselves exploded onto the scene,  the purely strategic choice weighed decisively against the PhD outside of a few specialized fields –e.g.,  law and history, law and philosophy, law and corporate finance — where the PhD was a huge value-added on the entry-level market.  But now consider today’s market, and put yourself in the position of an individual about to [...]]]>

The Berobed Elites, Courtesy of Wikicommons

The last few comments on this Prawfs thread raise an inquiry as old as the legal blogosphere: does it maximize to get a PhD on top of a JD if you want to get a job in the legal academy, or can you achieve the same ends with a fellowship, or by publication alone? Five years ago, as law fellowships themselves exploded onto the scene,  the purely strategic choice weighed decisively against the PhD outside of a few specialized fields –e.g.,  law and history, law and philosophy, law and corporate finance — where the PhD was a huge value-added on the entry-level market.  But now consider today’s market, and put yourself in the position of an individual about to choose between applying for a two year fellowship or a PhD program, and your goal is to maximize the chance of getting a job at an American law school.  In my view, it’s an easy choice (with a few qualifications): go PhD or go home.   Here’s my reasoning:

(1) The empirical revolution: fellowships generally won’t teach methods.  You need training in methods because it’s no longer socially acceptable to write a one or two methodologically irregular pieces before you get your feet under you.  (A bad trend.)  Moreover, though Larry Ribstein thinks that ELS may be a bubble, I think he’s missing a critical supply-side fact: there’s more work involving legal data than there was previously  in part because it’s cheaper to do, and that economic  trend is accelerating.  If law professors don’t write about courts, contracts, crimes, or property using statistics, then political scientists will do so, badly, and will eat our market in shaping legal policy.

(2) VAP positions are the new fellowships: more people than ever are taking as their first teaching job a VAP following a fellowship.  The resulting time-to-tenure-track is starting to look much like the rest of academia, reducing the opportunity costs of a PhD.  Plus, in fellowships you often have to teach courses that are truly unrelated to your research interests.

(3) There are more PhDs in the legal academy every year.  They’ve all of the motivation in the world to demand the training as a credential for entry level hires, and as they age in their schools they will begin to flex their muscles.  Looking ahead to 2015, I’d say that the current cutoff of schools that softly demand a PhD for entry level hires (i.e., 1-10 or thereabouts) will trend toward all of the top tier.  It’s those mid-level schools which are going to be increasingly tied into central universities as budgets crunch, with resulting Provostian pressures.

(4) The job market for non-law academics continues to be worse than that for law professors, creating an ever-larger and more qualitifed pool of folks migrating our way.  Fellows simply can’t easily compete with people with dissertations.

(5) A contrary argument would rely on the Carnegie movement’s focus on increasing skills-education.  But, largely for economic reasons, I think that Carnegie is most likely to change the overall structure of law faculties, with far more use of adjunct instruction. That is, it won’t change who we hire, but it will reduce the number of entry level tenure-track slots we have.

These considerations intentionally ignore the important  question — is this a good thing, or a bad thing, for legal education.  I don’t have a thing to say about that big question which is both novel and interesting.  Maybe you do.  Also, I don’t think that the PhD rule applies (or will) to some kinds of conlaw, evidence, employment law, crim  (where it looks like big theory is holding strong), or tax teachers, and I’m sure there are other nooks I’ve missed.  I’m thinking here of advice for people who want to teach the traditional common law topics, any business or commercial  law subject, or environmental law, health law and international law. That’s a big part of the market, but it’s not all of it.

An entirely separate topic is whether junior scholars without PhDs should get them.  That, my friends, is a question that has been occupying me for some time. And I have no idea what the answer is.

p.s.:  I forgot to mention a key assumption. Someone with a PhD who doesn’t have a JD has almost no chance of landing a job in the legal academy.

p.p.s.:  Larry Ribstein responds to this post here, and makes some characteristically great points. I’ll reply when I can.  [Update: I've now replied.]

An interesting paper is making the rounds in the economics blogging community, called Markets for Reputation: Evidence on Quality and Quantity in Academe, by Hamermesh and Pfann.  As Cowen summarizes:

“1. Adjusting for citations and other measures, “reputation” (defined both in terms of awards and the quality of the department you inhabit), does not rise with the quantity of articles published by an individual.

2. Adjusting for citations and other variables, having your citations in a single dominant piece, rather than scattered across a greater number of pieces, does not predict reputation.

3. The quantity of articles published does predict mobility and salary (adjusting for quality), even though it does not predict reputation.”

Since law professors don’t have [...]]]>

The Hierarchy of Law Professor Hiring, Courtesy of Katz et al.

An interesting paper is making the rounds in the economics blogging community, called Markets for Reputation: Evidence on Quality and Quantity in Academe, by Hamermesh and Pfann.  As Cowen summarizes:

“1. Adjusting for citations and other measures, “reputation” (defined both in terms of awards and the quality of the department you inhabit), does not rise with the quantity of articles published by an individual.

2. Adjusting for citations and other variables, having your citations in a single dominant piece, rather than scattered across a greater number of pieces, does not predict reputation.

3. The quantity of articles published does predict mobility and salary (adjusting for quality), even though it does not predict reputation.”

Since law professors don’t have access to a central citation clearinghouse for our work, we can’t exactly replicate the analysis.  But  I am skeptical that these findings would translate well to law schools:

First, we don’t have a tradition of counting citations as a proxy for quality, and for good reason.   Leiter’s rankings may influence that norm over time, but I tend to doubt it because he doesn’t attempt to fully capture citations across the web of science or other indisciplinary journals. In a world where most of the most active scholars are co-authoring across departments, JLR citation counts are increasingly irrelevant.  At best, JLR counts are probably decent proxies for the influence of older scholars.  If someone could develop a law database that was both wide and deep, citation counts would be a useful tool for hiring.  That database would have to extend back in time, covered all of the possible citation outlets, and it incorporate professors at both elite and non-elite institutions.  In the absence of such a database, citation analysis of law review articles for the purpose of inferring professor quality or reputation is currently unreliable, and often silly.  (Not yours, BL!)

Second, I do think that many of the top scholars in my sub-field — BLE, empirics of private law — are known for one or two dominant works, and not (necessarily) a greater number of smaller pieces. In part this is because traditionally law review articles are much longer than articles in other disciplines, and take much more time to write.  A typical star academic in the 1980s and 1990s wrote 3-5 pieces before receiving tenure.  With fewer bullets came more pressure to hit the target: you really could make or break a reputation on one piece.  This may be changing.  I hope so!  Given the letterhead effect, the dominant piece norm significantly biases reputation markets in favor of people originally hired at super-elite institutions.

Third, I tend to think that the legal academy is a significantly more hierarchical and static market than other parts of the academy, in part because lawyers are much more conservative (small-c) than other professions, in part because scholarship in the legal academy was until very recently concentrated at a few schools, and in part because law schools face unique pressures to hire locally (to promote employment and alumni relations).

Still, it’s an interesting project. Check the paper out.

For more on this topic, see this link-rich short article by Paul Caron.