Changes in Law School Hiring Practices Over the Past Generation

A faculty member who has taught at several of the top law schools writes about his perceptions of how the job market for faculty has changed over the last generation:

In the last 20 years, there have been two huge shifts in hiring.  20 years ago, lateral hiring was unusual:  almost everyone built their faculties from the entry level, and almost no one moved---at least among the top 10-15 schools---unless it was for personal reasons.  Hiring committees were essentially about entry-level hiring and you only looked at a lateral hire when someone reached out because they had an interest.  Beginning in the early 1990s, lateral movement became much more common, leaving us in our present state of constant churning.

Second, once the initial round of churning was over and all the low hanging fruit had been picked, we shifted to lateral hiring of people just before or just after tenure.  I think of this kind of hiring as a hybrid:  it's almost an extension of the entry level.  People are hired before they've really done significant work based on some early work that signals promise.

A few observations of my own, though I am happy to stand corrected by those with longer memories or more information.  I suspect it is correct that the amount of lateral hiring has increased since the 1990s, though Texas in the 1970s was still doing a significant amount of lateral hiring (I can think of faculty hired from Toronto, Arizona State, SUNY-Buffalo, Indiana, and Washington-Seattle during that decade, and there were no doubt others--though it would still have been true that the majority of the faculty had been hired as rookies).  But even at Texas, the pace of lateral hiring has accelerated, with the majority of new hires since 2000, for example, being lateral appointments (Mark Ascher from Arizona, Wendy Wagner from Case Western, Jane Cohen from BU, Larry Sager from NYU, Derek Jinks from Arizona State, Bernard Black from Stanford, Karen Engle from Utah, Ronald Mann from Michigan, Bob Peroni from George Washington, Leslie Green (on a half-time basis) from York/Toronto, Jane Stapleton (on a half-time basis) from the Australian National University, John Deigh from Northwestern, William Sage from Columbia, Daniel Rodriguez from San Diego, and Mechele Dickerson from William & Mary, in contrast to just five--Litvak, Kadens, Bracha, Damann, and Golden--at the rookie level). 

So, too, when I think back to the University of Michigan Law School faculty of the mid-1980s (when I was a student), many of the biggest names had been lateral hires (Yale Kamisar from Minnesota, Terrance Sandalow from Minnesota, James Krier from UCLA, Joseph Sax from Colorado, James Boyd White from Chicago, Frederick Schauer from William & Mary), though some others were rookie hires who had stayed on (Richard Lempert, Donald Regan, Peter Westen), though many of what the students perceived (largely correctly, in retrospect) to be weak links on the faculty were in fact rookie hires who had been, as a matter of course, granted tenure.  (Note, though, with both the Michigan and Texas examples that, until recently, most of the lateral hiring was not from scholars already ensconsed at top 15 law schools.)

Stanford, of course, rose to prominence with lateral raids on Columbia in the 1960s.  My impression is that Yale has long depended on the lateral market to fill its faculty ranks.

I wonder how all of the preceding jibes with the experience of others who have been in the legal academy as long or longer than me or my correspondent?  Has the job market experienced the shifts described?  Are these shifts confined to a handful of top law schools or has the market for faculty changed throughout, from the most national to the most regional law schools?  What do legal academics think of these changes? 

And assuming, as I think likely, that there is more lateral movement in the last 15 years than in the prior generation, what explains that development?  It can't be the U.S. News rankings since their reputational surveys are almost wholly unresponsive to actual faculty quality, as we have had occasion to note before.  (Perhaps schools don't realize this, so maybe U.S. News has played a role?)  Is it the turn to interdisciplinary scholarship, since lateral hiring in other academic disciplines, like economics and philosophy, is much more common, since it is often thought to take ten or twenty years for a scholar to establish his or her reputation?

Non-anonymous comments will, as usual, be strongly preferred.  Comments may take awhile to appear, so please post only once.

Comments

[Anita Bernstein]

It's an odd development next to the rise of the two-career couple: Lateral moves now typically disrupt another person's work, and yet they happen. No trend is easy to explain (in a non-conclusory way, I mean), but this one probably has something to do with job-churning today in the USA. We are American workers, and American workers no longer stay put at their place of employment if they can do better elsewhere. We who can move laterally are unlike American workers in that the company has to condone our staying put. But it's figuring out how not to have to do so in the future.

[Frank Cross]

I think it's the indirect effect of US News rankings. They made schools more competitive and less complacent. And they inspired many other and more reliable ratings, such as your own, if only to correct the US News measures.

Take Harvard. It always maintained it was #1 and could get away with that. In today's world, it's very hard for HLS to maintain that it's truly #1 and its aggressive lateral hiring is, I suspect, a response.

[Ethan Leib]

I suspect this trend mirrors the trend away from hiring entry-level people who show only promise and Supreme Court clerkships. The proxies used during entry-level hiring have proven themselves to be very bad predictors and schools probably have grown to realize (or will continue to realize) that entry-level hiring at the top tends to be guesswork (and tends to create success instead of recognizing it). More, given the presumption of tenure, it is hard to get rid of people. So it makes perfect sense that the top schools would move to a lateral model, giving younger scholars some time to develop and mature, hiring only those who have actually achieved something notable.

[Jim Chen]

At MoneyLaw, I've posted a ten-point guide to types of law school appointments in response to this intriguing post and its accompanying comments: http://money-law.blogspot.com/2006/12/types-of-faculty-appointments-ten.html.

[Law Professor]

I would guess that the difference is greater focus on scholarship generally. A school that wants to hire top scholars mostly will look at established scholars elsewhere; the odds that any given entry-level hire will "grow" into a top scholar are never very good.

The real question is why the top schools hire entry-level candidates at all. Every year you see the top schools hire entry-levels that everyone knows are never going to be as good as people those schools easily could pick off laterally. Tenure is very easy to get, resulting in top schools filling their ranks with fairly weak people they hired as entry-levels instead of top-shelf people they could hire laterally.

I wonder, why is that? Do top schools trick themselves into overestimating the odds that unproven candidates just might become the greatest scholars ever?

[Rick Lempert]

First, I would want to see data that indicates this is true. To the extent it is, the following may be among the causes. Dual career families cut both ways. While they can anchor a person who would like to move to a school, they can also motivate moves to advance a spouse's career (e.g. UM Law was blessed with the choice of Terry Sullivan as University Provost because it allowed us to add Doug Laycock from Texas.) In tighter budget times market demand is one way of getting a big raises; hence people have an incentive to explore moves and the more moving is explored the more it occurs. More rigorous tenure standards mean more people denied tenure which means more faculty openings than can be filled by hiring at the junior level, and laterals have the benefit not only of adding people of proven accomplishment but also of avoiding sad or nasty tenure decisions. Moving is becoming less disruptive of co-authorship and other relationships thanks to modern technologies for keeping in tough. Finally Harvard switched from its former preference for hiring its top students and promoting them regardless of accomplishment to largely lateral hiring. Like it or not, Harvard sets the fashion for the nation's law schools.

Rick