May 15, 2012
Observations on lateral hiring with tenure during 2011-12
A few random thoughts related to this list:
(1) A lot of lateral moves by scholars in international law, legal history, and constitutional law.
(2) Wisconsin lost three productive, mid-career senior faculty--not good!
(3) Three senior hires by Nevada!
(4) UCLA recruited two faculty from Michigan, a notable coup.
(5) The "top ten" moves of the year (in terms of significance for the hiring and/or the losing school) might include: Adler from Penn to Duke; Cushman from UVA to Notre Dame; Dudziak from USC to Emory; Morrison from Columbia to Chicago; Nourse from Wisconsin to Georgetown; Powell from GW back to Duke; Rossi from FSU to Vanderbilt; and Sykes from Stanford to NYU. But that list no doubt reflects mainly the limits of my knowledge of all the work being done by those who moved this year.
May 11, 2012
Rookie hiring during the 2011-12 Season
Sarah Lawsky (UC Irvine) has compiled some useful charts (and follow the links therein for others) about the recently concluded rookie hiring season. As she notes, the charts are based on incomplete data; they also track only tenure-track hires across all law schools. However, what they do reveal is consistent with my imperssion that, as in the job market generally, it was a difficult year to get hired as a law professor.
Salkin Named Dean of Touro Law
Touro Law Center has named Patricia Salkin, the Associate Dean at Albany Law School, as its new dean. Salkin, who holds her JD from Albany, is a land use scholar and has served on transition teams for Eliot Spitzer, Andrew Cuomo, and Eric Schneiderman.
May 10, 2012
CHE Write-up on Tamanaha's Forthcoming Book on Law Schools
It's here; the book includes a lot of the material that we have often linked to over the last year. The quote from me in the article sounds much more lukewarm than what I sent to CHE when asked for comments, so I'll just reprint what I wrote to Ms. Mangan when she asked me for comment on the book:
First, in case you haven't seen it, here's something I wrote awhile back about reform in legal education:
As you will see, most of these put me on the same page as Tamanaha. If there's one theme that runs through his book it is that we need more *kinds* of law schools out there, that the "Chicago model" or the "Harvard model" shouldn't be the only one. And that will require the ABA to loosen up some of its accreditation requirements. Given the neoliberal paradigm in which we live, the only 'solutions' are going to come through the marketplace--no one can just mandate that faculty teach more and write less. Some institution has to show that there's an actual market for a cheaper law degree delivered by faculty who emphasize teaching over research.
A lot of the book is clearly a fair description of the current state of legal education in America, and a useful compendium of data. He does harp more on the negatives than the positives, and is obviously too generous in his treatment of some of the critics, for example, saying little about the numerous errors in David Segal's NY Times articles. (There are also minor errors in the book, but not too many--for example, he's mistaken about the amount of 'merit' aid schools like Yale and Harvard award.)
Although he gives sustained attention to the perverse influence of the U.S. News rankings, in some ways he still understates their impact. For example, he notes, correctly, that schools have been expanding their faculties, but notes that this is unlikely to improve academic reputation as measured by U.S. News. But that's not the issue: the issue is that, all else being equal, the U.S. News rank of a law school is a function of per capita expenditures, and almost nothing else. The most profligate spender per capita is the "best" law school--that's why Yale always tops Harvard. While many of the trends in legal education are just part of broader trends in higher education over the last generation (as he sometimes notes), there's no doubt that the U.S. News "incentives" have pushed law schools further in the wrong directions.
I would certainly encourage a prospective law student, especially one not likely to get into one of the very top schools, to read this book.
UPDATE: Orin Kerr (George Washington) also has a favorable write-up of the book.
May 9, 2012
In Memoriam: Louis Pollak
Judge Louis Pollak, former dean of both Yale and Penn Law, passed away yesterday. I've posted a bit more length here.
BU's Farnsworth to be the New Dean at Texas
Profile here. Farnsworth is author of a wonderful book that I often recommend to incoming law students looking for summer reading: The Legal Analyst. The jurisprudence chapter is quite thin, but the other chapters are terrific introductions to different intellectual and disciplinary tools for analyzing legal issues.
May 7, 2012
On "faculty productivity" studies
Tamara Piety (Tulsa) writes:
On the Roger Williams study, I don’t think it is “a good snapshot of more regional law schools with highly productive faculties” for a number of reasons. My first objection is that the report does not really count “productivity.” Rather it counts only productivity in certain selected journals. At the heart of my critique is a concern about whether what is included and what is left out of that selection can be justified as validly discriminating between the various journals on the basis of quality. The study is entitled, “Per Capita Productivity of Articles in Top Journals, 1993-2011: Law Schools Outside the U.S. News Top 50.” The words “top journals” modifies the word “productivity” and clearly signals the limitations of the study. However, the report is commonly referred to as simply “the productivity study” by both RW and others. I understand that calling it “the productivity study” is shorthand, but if faculty are published in journals not captured by the study, that productivity is not reflected and thus makes it impossible to distinguish between those who are publishing below the somewhat arbitrary cut-off and those who are not publishing at all. That seems unfair and I think all would agree that there is a big difference between these two conditions. There are quite a few respectable journals not captured by RW’s methodology.
As indicated on the RW website, journals selected for the list were the main journals of schools with a peer reputation rank of 2.8 or higher in the US News report of 2008 plus 13 “selected journals,” mostly specialty journals, from among the top 50 journals as reflected in Washington & Lee’s combined rankings from 2006 (the 2007 report). So far as it goes I suppose this is a reasonable cut-off (although why 2.8 and not 2.7? or why 2.8 and not 2.9 or 3.0?).
Yet however justified this method may have been, it is now several years old and there have been many changes to both peer reputation and to the W & L rankings. Using stale data tends to increase the likelihood of what you so justly criticize as the “echo chamber” effect of the US News Reports. One justification for drawing the line at the top 20 publications, as you do in your own study, is that the top-20 group remains relatively stable from year to year. Such a list would indeed be a snapshot, however rough, of productivity in top journals. (I still chafe at erasing productivity if it does not appear in a top journal, but that is another discussion).
Not so when you start moving farther down in the rankings; those ranking have changed quite a bit at the margins. And those changes may have a fairly dramatic impact on the “productivity” calculation for individual faculty and a change in an individual’s score may change the institution’s score. For example, there are at least three schools which did not have a peer ranking of 2.8 or higher in 2007 but which do now and so would presumably make a difference in this survey. They are Yeshiva (Cardozo), George Mason and Utah. Because their peer reputation did not exceed 2.8, their main journals weren’t included in the RW list. All 3 are listed in the US News top 50 institutions and although the W & L journal rankings are 83 for Utah and 91 for George Mason, Cardozo’s is 27. Yet none of these journals make RW’s list. There are other institutions included in the RW study which have experienced a drop in peer reputation rating from 2007 to 2011 which would put them on the wrong side of the original line -- Oregon (2.8 to 2.7) and Villanova (2.8 to 2.6). Yet publications from these two journals are included. When I raised this objection to Yelnosky last year he told me that they assumed these shifts around the margins would be “a wash” – that is they would not make a significant difference to the overall calculation. That may be correct, although I am not sure what his evidence is for this assumption, but it is certainly not true as to some individuals.
And there is an another problematic aspect of this study. In describing its methodology RW says that in addition to using schools with a peer assessment score of 2.8 or above, it added to its list “an additional 13 journals that appeared in the top 50 of the Washington & Lee Law Journal Combined Rankings in June 2007.” It looks like maybe every specialty journal from the rank of 50 and up in W & L was included (although it is interesting that several of the main law journals which did make RW’s list, presumably on the basis of peer reputation, were listed below the Berkeley Technology Law Journal which comes in at 50 on the 2006 W & L ranking). Once again, the list of specialty journals ranked at 50 and above in the 2011 W &L rankings contains changes from 2007. There are far fewer specialty journals that make the W & L top 50 cut off. For example, the Berkeley Technology Law Journal drops off the list (although barely, at 53). Also dropped from the list of the top 50: the J of Legal Studies (74),the Harvard Environmental Law Journal (53), the Harvard J. on Law & Public Policy (51), the Harvard Journal on Legislation (60), the University of Penn J. of Con. Law (62) and the Yale J. on Reg. (57). These are all terrific journals. I do not endorse excluding them. But they no longer meet the criteria RW established (whatever the merits of that system may be) and continuing to adhere to a stale ranking means excluding several higher ranked journals. This makes the RW study look less representative of quality or merit on its own terms and instead rather arbitrary.
This last point highlights that there are some disparities between the W & L rankings of journals and the US News Peer reputation score for the school in which the journal is housed – in some cases very large ones. For example, Villanova’s main journal makes the RW list on the basis of its US News Peer rankings score of 2.8 in 2007 (it is now 2.6); however its journal comes in at 123 on W & L, far below several other respectable journals which just miss the 2.8 peer reputation cut-off. Something similar is true for Pittsburgh with a peer rating in US News of 2.8 and a journal ranking of 155, the University of Miami, had (and has) a peer ranking 2.8, but a journal ranking of 137, Oregon’s peer ranking has, as noted, slipped to 2.7 and its journal is ranked at 131. In contrast, publications in, for instance Houston, did not count for the RW survey even though its review is ranked at 41 (up from 57 in 2006) in the W & L ranking and its peer review score, while not 2.8, is a not very distant 2.6 (same as Villanova) as of 2011. Yet publications in Pittsburgh, Oregon and Miami all counted, while those in Houston did not. There are a number of other respectable journals which are not counted by RW but which have journals ranked above (sometimes considerably above) those which RW does count. Here are just a few (in no particular order):
On RW list W& L Rank Not on RW List W & L Rank
Oregon 131 Lewis & Clark 52
Georgia 75 Brooklyn 55
BYU 86 Utah 83
Florida State 73 U. of Cinn. 56
U. of Miami 131 Hofstra 61
U. Pitts. 155 Cardozo 27
San Diego 86 Buffalo 79
Villanova 123 Case Western 120
This is not a systematic comparison, but you get the idea. It seems to me that the W & L methodology, which counts citations, and the US News which counts -- who knows what? --- may be comparing apples and oranges, but it is clear that under RW’s methodology a substantial number of journals from law schools in the swath ranked in US News Report on overall scores at between 50 and 100 are excluded from RW’s study. If we just count the ones with a peer reputation score of 2.6 (the same as Villanova) and higher they are: Cardozo, Loyola LA, George Mason, Houston, Tennessee, Case Western, Chicago-Kent, Temple, Rutgers-NJ, Brooklyn, Lewis & Clark, and Kansas. (I may have missed some). On the W &L list, two journals are in the top 50 which are not counted by RW – Cardozo (27) and Houston (41). In short, the inclusions and omissions are hard to justify on the merits and thus raise questions about the validity of what the study purports to measure.
I realize you have to draw lines somewhere and that the selection can seem arbitrary and still be generally valid. For the reasons I discuss I don’t think this can be said of the RW study– at least not any more. I realize it would be a massive task to go back and recalibrate the results based on new rankings. And it is probably unrealistic to have to revisit the lists every year since you would not only have to add new articles and faculty and delete those who left, but you’d have to reevaluate those articles which had already been counted for a particular faculty member. This last point illustrates another weakness in using this report as a snapshot of productivity. If an article a faculty member has published drops off the list because the journal in which it was published drops off the list, surely that says nothing about the faculty member’s productivity; only something about the prestige of the journal.
For all these reasons I think a real productivity report ought to include all law reviews, or all journals period. Such a report would still be imperfect in many ways (by excluding books for instance). But it would be a fairer view of what it purports to measure -- “productivity” because it would capture more journals (particularly peer-reviewed journals) -- than this study which reinforces the already murky and incredibly sticky reputational scores from US News. While I don’t think peer reputation is completely invalid, it is something of a black box. It is hard to figure out what actually goes into calculating peer reputation other than the prior US News score itself. Hence the “echo chamber.” The RW study, which I assume was inspired in part as a way to try to “unstick” some of these sticky numbers, tends instead, I fear, to make them stickier still, especially to the extent it relies on old data.
Since anything can get published somewhere, I'm skeptical about the value of counting everything. But Professor Piety raises some useful issues about how to do the selectivity cut-offs. Thoughts from readers? Signed comments only: full name and valid e-mail address.
UPDATE: Do see Professor Yelnofsky's reply in the comments, below.
May 6, 2012
Yet more on Liz Warren
MOVING TO THE FRONT FROM MAY 4--UPDATED
My former Texas colleague Mark Gergen, now at Berkeley, and who was also at Texas when Liz Warren was there (unlike me) writes:
Thanks for the two posts on Liz. If you revisit the subject consider making two points. One is that the most striking thing about Warren's career path is that she is a graduate of Rutgers Newark Law School. The elite law faculties have very few graduates from non-elite schools. Not surprisingly, they tend to be very able.
The other point goes to the diversity listing. There are numerous examples of faculty being listed as within a diversity category who are not perceived as diversity hires by proponents of diversity in hiring. The identification of Liz as part American Indian was in 1986. This was at a time when the institution wanted to increase the numbers for reporting purposes. The institution's purposes may have been cynical. I have no reason to think that Liz was acting cynically in identifying her Indian heritage. Unlike some others I could name, she never joked about the matter. No internal constituency that favored diversity hiring ever perceived her as filling this role. Certainly she never claimed to fill this role.
UPDATE MAY 6: I see that the obsessed are still afflicted with the non-issue du jour. Two observations about this most recent display: (1) Professor Zywicki, a law professor at George Mason who has never participated in hiring at an elite law school (like Texas, Penn or Harvard, all schools where Warren was hired), declares it "obvious...why Elizabeth Warren self-identified as Native American all those years...which was to get an edge in hiring." As we have noted previously, Professor Zywicki is sensitive about why he is not at an elite law school, and no doubt the fantasy that elite law schools are falling over themselves to find Native Americans (in his own field nonetheless!) offers some consolation, but for anyone ever involved in hiring at any of the elite law schools at issue in Professor Warren's case, the assumption is a bit silly. For 11 of my 13 years at the University of Texas, I was on the appointments committee, several times running lateral and/or rookie hiring, and only once did I ever hear the "Native American" heritage of a candidate mentioned, and it was met with a general shrug. Given how right-wing crazies hate affirmative action, it is surprising how naive they are about its actual operation at elite law schools. (The embarrassing quote from Larry Sabato, a political science professor at UVA, tells us more about political science departments than anything else!) (2) Bizarrely, Professor Zywicki is concerned that "a credentials snob like Leiter doesn’t raise an eyebrow at Harvard’s lone Rutgers grad." The reason not to "raise an eyebrow" is the one, noted above, by Professor Gergen, but even some commentators at the Volokh blog were puzzled by the accusation that I, of all people in legal academica, is a "credentials snob"! I will plead guilty to being an egregious smarts snob, which is why anyone who has ever been on appointments with me can name many superbly credentialed candidates that I opposed on the reasonable grounds that they were, in reality, "f-----g morons." Credentials can sometimes be good proxies, but they tend to be easily defeasible in legal academia, a lesson that some elite law schools learned the hard way. Nothing I've ever written or done would suggest otherwise.
All of which is to say that the answer to this commenter's question may well be 'no.' (This comment is also amusing, and suggests the Bernstein-Zywicki show is getting to be a bit much for the regular readership.)
ANOTHER: Adam Levitin, a bankruptcy and commercial law scholar at Georgetown, writes:
One point to add to your coverage of the Elizabeth Warren heritage non-issue. Todd Zywicki has a long history of bad blood with Elizabeth Warren. Todd was the only academic who supported the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act [BL: the "No Credit Card Company Left Behind Act"]. He and Elizabeth locked horns repeatedly in the multi-year legislative fight leading up to the Act, which Todd testified was so perfect that he wouldn't change a single word of the statute (this for a statute with missing words and incomplete sentences!). Todd has never hesitated to take a swing at Elizabeth since, be it on Volokh or on the WSJ op-ed page, and while their disagreement is fundamentally political some of Todd's writing does have a personal edge to it. Therefore I don't know if this is simply score settling for Todd, but it is notable that he of all law professors is leading the charge, even though the underlying issue isn't one to which he has devoted particular attention in the past. Perhaps the best test is this: does anyone think Todd would have written anything on the topic if the candidate had been someone else?
I appreciate the context supplied by Professor Levitin, though I don't know the answer to his final question. The George Mason folks increasingly remind me of the Stalinists of yesteryear, obsessed with ideological purity and relentless in pursuit of their ideological enemies. Perhaps this is personal, and perhaps it is just "pure politics" as it were.
AND ONE MORE: The observations of Carl Bogus (Roger Williams) are pretty much what anyone who actually knows how law schools work would have concluded, but he sets it out well.
May 4, 2012
Chen Guangcheng Offered Visiting Scholar Slot at NYU
The WSJ is reporting that Chinese activist Chen Guangcheng has been offered a position as a visiting scholar at New York University. NYU Law Professor Jerome Cohen seems to have engineered the deal.
May 2, 2012
More on Liz Warren, Harvard, and Affirmative Action
Andrew Strom, Harvard Law School class of 1993, writes:
I saw your post about Elizabeth Warren, and while you make good points, what is missing (not surprisingly) is evidence about what actually occurred at Harvard. I attended Harvard Law School from 1990 to 1993. While I was there the single biggest issue on campus was the absence of women of color on the faculty. At that time, there were zero women of color on the Harvard Law School faculty. This was such a big issue that nine students occupied the Dean's office to protest the school's hiring practices. Elizabeth Warren was a visiting professor at Harvard from 1992 to 1993. I know from my own experience that students who were part of the diversity movement never thought of her as a woman of color, and the administration never identified her to students as a woman of color when it was defending its hiring practices. When Harvard did have women of color as visiting professors there was often pressure from students for the administration to extend offers to those professors. Elizabeth Warren's name was never floated during any of those conversations.
I can also say that I took bankruptcy law with Professor Warren and she was an excellent professor. She had total mastery of the subject matter and she did a great job of conveying it to students.
Hardly surprising, to me at least, but a useful additional bit of evidence.