Wednesday, August 9, 2006

Hiring Practices, Voting Rules, and Delegation of Authority at Law Schools

A law professor writes:

I am the new chairman of my school's hiring committee and would find benchmarking on several issues helpful.   

Here are my questions:

1.    Is the selection ever delegated to a committee?  If so, why?
2.    Which categories of faculty do not vote on hiring decisions?  LR&W? Clinical?
3.    With respect to faculty hiring, do all law school faculties use the majority vote approach or do some require a supermajority?  If a supermajority approach is used, what are the reasons for this?
4.    Assuming there are multiple candidates for a position, does the faculty rank them in order of preference?  Is the dean given authority to hire a lower-ranked candidate if the preferred candidate turns the school down?

I assume there are a variety of institutional practices out there.  At Texas the answers are:  1.  No, though the Appointments Committee has enormous influence, and its strong recommendations have never been turned down in my recollection.  2.  LR&W and Clinical faculty do not vote; only tenure-stream academic faculty vote.  3.  We require a kind of supermajority vote for appointments with tenure, though our voting rules are so complicated, I can't explain them!  4.  We do not vote an offer unless we have a position for the candidate, so we don't ordinarily get into this situation.  The Dean does not have the authority to make offers, only the faculty does.

Non-anonymous responses will be preferred, though I may post anonymous replies if I have independent reasons for thinking they are factually accurate.

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May I suggest that you also collect information on whether hiring and promotion votes are taken anonymously -- that is, by secret ballot? I think this is an important matter of institutional policy, and, so far as I am aware, it has not received broad attention. For untenured faculty, in particular, anonymous voting can make all the difference in the ability to participate in faculty governance without fear of negative consequence. U.C. Davis Law School does all hiring and promotion votes using secret ballots.

Posted by: Tobias B. Wolff | Aug 9, 2006 9:39:47 AM

I think the most common practices are as follows:

1. The committee does not select, but at most schools is given a fair bit of deference. Certainly, at some schools, committee recommendations have been rejected.

2. The general pattern is that only tenure-stream faculty vote on a tenure-track or tenured appointment. I think there is a less clear pattern on whether others may attend the meeting and participate in the discussion. Some schools use a secret ballot; others do not.

3. Some schools use majority vote; some use supermajority vote (often under complex rules); some might say the rule is the former but, as a matter of custom rather than rule, a close vote might lead to a motion to reconsider with votes switching from yes to no in deference to strong opposition. Some reasons for having a supermajority requirement include not appointing a tenure-track person with strong opposition (thereby getting the person off to a questionable start); deferring to strong views of a large minority; etc.

4. The practice varies from school to school. If the faculty authorizes the dean to make an offer to Candidate A and if Candidate A turns it down, then make an offer to Candidate B, that would seem to satisfy the requirement of faculty approval.

Hope this helps.

Posted by: Phil Frickey | Aug 9, 2006 10:20:50 AM

Re whether schools have secret or not-secret voting on hiring and P&T: Ira Robbins of AU recently completed a massive study of this very subject, the results of which are posted on SSRN.

The Importance of the Secret Ballot in Law Faculty Personnel Decisions: Promoting Candor and Collegiality in the Academy

American University - Washington College of Law June 15, 2006

Law school faculty personnel decisions are often controversial. Debates may be heated, votes may be close, and ill will may be incurred. One way to avoid this enmity and to promote or maintain a collegial atmosphere is to use secret ballots for votes on hiring, retention, promotion, and tenure. The use of secret ballots, however, allows for the possibility of voting for the wrong reasons (e.g., bias, discrimination). But open voting carries the same possibility (e.g., political correctness, fear of reprisals).

This Article discusses the evolution and significance of the secret ballot and considers the arguments for and against its use on law school faculties. It also presents the results of an original survey (with a 97% response rate) on the use of secret ballots in faculty personnel decisions at all law schools in the United States. Comments from the survey and conversations and email exchanges between the author and faculty and administrators across the country reveal a subtext that involves, among other things, the need for candor, openness, fairness, and sensitivity, on the one hand, as well as concerns about politics, frustration, anger, power, dominance, and control, on the other hand.

The Article concludes that, with secret ballots - at the very least, with an open and honest debate about whether to conduct secret ballots - may come not only candor, but also greater harmony and collegiality.

Posted by: anon law prof | Aug 9, 2006 1:14:16 PM

To see which schools give clinical and legal writing faculty a vote on hiring decisions, you should consult Susan Liemer's survey "Who Votes at Law School Faculty Meetings in the United States," available at . Substantially the same information is available as an appendix to her paper "The Hierarchy of Law School Faculty Meetings: Who Votes?," 73 UMKC L. Rev. 351 (2004), available at .

Posted by: Jon Weinberg | Aug 10, 2006 10:14:01 AM

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