Tuesday, October 25, 2011

Why do almost all American law schools weigh research/scholarly potential so heavily in hiring faculty?

Every PhD student in philosophy knows that in applying for jobs, one has to tailor one's self-presentation a bit differently for research universities as opposed to "teaching" institutions, i.e., those schools that primarily emphasize undergraduate teaching.   Leading research universities will, famously (or infamously), hire and tenure brilliant scholars who are mediocre teachers, while liberal arts colleges place a premium on teaching ability and commitment, though giving some weight, of course, to scholarship.   And then there are the legions of other institutions of higher education that are neither research universities nor liberal arts colleges, but which tend to be more like the latter when it comes to hiring and tenure standards.

Over the last generation, U.S. law schools have, by contrast, become completely homogenous in their faculty hiring:  just about every law school now looks for evidence of "scholarly potential" in making its hiring decisions, and this often crowds out all other considerations (though, of course, every schools gives some weight to teaching competence).  Rookie candidates are now expected to have at least one publication, a "research agenda," and perhaps another work-in-progress as well.  Most "meat market" interviews are dominated by a discussion of research.  The centerpiece of any campus visit is the "job talk," a presentation of one's research followed by a Q&A session.  Most of an Appointments Commitee's time is given over to the reading and evaluation of writing by faculty candidates.   There appears to be no room anymore for the "liberal arts college" model of law school, where the emphasis is on teaching ability not scholarly productivity.   One of the few outliers to this trend I am familiar with, Baylor in Texas, seems in recent years to have moved closer to the dominant model for faculty hiring.  And one need only look at the untenured faculty at just about any law school in the country to see that "scholarly chops" were front-and-center in the hiring process.

So why did this happen?  Is it because law schools hire most new teachers from a relatively small handful of elite law schools?  That, I think, is just part of the phenomenon that needs to be explained, rather than constituting an independent explanation.  Is it because law schoosl are more like graduate schools than undergraduate institutions?  That doesn't seem a plausible explanation for a variety of reasons:  all law schools, even the most elite, primarily train lawyers not legal scholars, unlike graduate schools; and although law is a post-graduate degree in the U.S., it is really more like a second undergraduate degree, given that there is no prescribed course of study everyone is presumed to have had before being eligible to study law.   So something else must be at work in the increasing homogenization of law faculty hiring over the past generation.

I can think of two complementary explanations:

1.  Over the long haul, the academic reputation of an institution depends on the reputation of its faculty, and the faculty's reputation is overwhelmingly a scholarly reputation, which is the one thing about which other academics and scholars can have some reasonably reliable knowledge (who really knows how good the teaching is at another law school?).   Thus, an institution, to improve its academic reputation, must improve the scholarly quality of its faculty.  And, in the wake of the interdisciplinary turn in legal education over the past thirty years, the scholarly quality of its faculty is primarly a function of the academic reputation of faculty scholarship.

2.  Twenty years of U.S. News rankings, in which all law schools are evaluated by the same metrics (including academic reputation, which accounts for 25% of the final score), enforces the trend noted in #1.  Schools that might have been content to be the best law school in their region, graduating the bench and bar of the state or locality, suddenly find themselves subject to a powerful, external incentive to conform to the standards prevalent at Yale and Chicago and Michigan.

What do readers think?  Are there other factors at work?  Are these good or bad developments?   Signed comments--full name and valid e-mail address--will be very strongly preferred.


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An additional factor is that many law professors feel they are better able to assess scholarship (and scholarly potential) than they are able to assess teaching. Relatedly, the aspects of scholarship (and a job talk) that many law professors feel most comfortable evaluating when a paper or talk is outside the evaluator's areas of expertise--e.g., clarity, organization, comprehension of questions, etc. . . -- are thought to have significant bearing on teaching ability.

Posted by: Mark Gergen | Oct 25, 2011 2:07:50 PM

You've captured the spirit of it, but the mechanism is this - *all* law schools have 2-2 (or lower) teaching loads (ABA). On the other hand, departments in teaching colleges (in other fields) typically have a 3-2, 3-3, or 4-4 teaching load. The uniform 2-2 suggests that all law schools will have emphasis on research since the teaching load approximates that of research oriented university departments.

Posted by: Jeff Yates | Oct 25, 2011 2:45:26 PM

Interesting question, Brian. Your explanations are helpful, I think.

Some of the homogeneity may be explained by the role of the American Bar Association. The ABA accredits law schools, and it measures all law schools by the same criteria. My sense is that the accreditation process imposes a certain amount of uniformity on schools.

Posted by: Orin Kerr | Oct 25, 2011 4:04:20 PM

"1. Over the long haul, the academic reputation of an institution depends on the reputation of its faculty..."

I thought I learned from your prior posts and others' work that post-U.S. News, the main factor affecting academic reputation is a school's prior year's U.S. News ranking. And since the most reliable way to improve one's U.S. News ranking is by buying LSAT scores, that's what most schools now spend lots of money doing.

So your advice for schools in #1 ought to read: "Thus, an institution, to improve its academic reputation, must improve the incoming credentials of its students."

I'd be curious what the evidence is that scholarly quality has any impact on academic reputation.

BL COMMENT: There's something to this, but I think the perception is still that academic reputation is driven by the scholarly quality of the faculty--and over the long haul, it almost certainly is. But the emphasis has to be on "long haul." In 1960, everyone thought Columbia better than Stanford. And in 1940, everyone thought Northwestern better than Chicago. But things do change, albeit at a glacial pace.

Posted by: Jason Solomon | Oct 25, 2011 7:07:39 PM

I'm not sure I agree that hiring is all that homogeneous at all or even most law schools. I think at some places publications are viewed as a proxy for motivation, or as markers of particular inclinations or skills. In an era when many law schools will tenure anybody who mostly shows up to teach their classes and produces two or three marginally coherent 35 page articles over a four or five year period (sometimes with a lot of outside help), any signal about a candidate's likely level of long term productivity, energy level and institutional engagement is important. New law profs can improve as scholars if they are willing to put in the time and effort. It's the lazy people and/or those who spend their time and energy far afield of their law schools that I'd rather avoid hiring, and I believe many colleagues at less prestige fixated law schools hold this view to some degree.

Posted by: Ann Bartow | Oct 25, 2011 11:09:36 PM

Basically, the problem is one of self-identification. What has happened is the natural outcome of Langdell’s reforms at Harvard in the 19th century. Langdell wanted to move away from the professional school model, to a scientific model. First Langdell, and then others, hired professors that were not practitioners. This led to a professoriate that was not in touch with the concerns of the profession. The profession accepted this—probably because of the high respect given to the academy before the 1970’s—and they took over the practical training. So while law schools are still operating under the old paradigm (i.e., scholarship as paramount), the world is moving in a different direction. Well, at least it is moving in a different direction for 180 law schools.

BL COMMENT: Prior to the 1970s, I would have thought the connection between most law schools and the profesion was rather tight: think of the great treatise writers (Corbin, Farnsworth, Williston, Scott, Wright & Miller), all of whom were at elite law schools and whose work was widely used by practitioners. Now the elite law schools have largely abandoned the treatise as a scholarly vehicle.

Posted by: Beau Baez | Oct 26, 2011 5:07:42 AM

For folks who believe that ABA rules get in the way of the differentiation Brian describes, I'd be interested to know which particular ABA rules you think have that effect. While one commenter indicated that he thought the ABA mandated 2-2 (or lower) teaching loads, I don't see anything like that in the relevant chapter of the ABA standards.

Posted by: Jon Weinberg | Oct 26, 2011 6:39:46 AM

I would modify explanation #1 by saying that faculty "perceive" that scholarly production affects the US News ranking. With regard to law schools, it's not clear that the "academic" reputation score drives changes in ranking. Peer reputation is 25% of the score, but our students' LSAT scores, UGPA and ability to get jobs affects 40% of the score. (Thanks to Brian Kalt for the break downs.)

Reputation scores don't budge that much on the US News ranking, regardless of the change in scholarly production and the hiring of "superstar" faculty.

So, faculty think that hiring the next prospective "superstar" will put the school on the map when doing so likely has a very diffuse and neglible impact on US News ranking.

Some of the schools that have "jumped" in the rankings have done so by limiting class size so as to be more selective with regard to the students they accept. Doing so increases LSAT and UGPA and possibly the hiring prospects for graduates.

Another part of the problem, however, is that most faculty members have no idea how to measure effective teaching. It's far easier to measure number of articles and placement because faculty are experts in the scholarly production field.

So, misdiagnosis of the "US News" problem coupled with the difficulty of assessing teaching combine to create a hiring process focused largely on scholarly production.

Posted by: Anne Lawton | Oct 26, 2011 6:55:19 AM

This makes sense, but I think a big factor is the rest of the university. Law schools are in a funny position. But if they want the respect of colleagues in other schools, they have to put greatest weight on scholarly work. Though law schools still do put somewhat greater weight on teaching than other departments. Law schools don't want to be professional schools, because it is a reason for the rest of the professoriate to look down on them.

BL COMMENT: I'm more skeptical about this, since even law schools at universities without research profiles nonetheless hire on the dominant model--so the pressure (or desire) is coming from elsewhere.

Posted by: frankcross | Oct 26, 2011 8:18:18 AM

Candidates in a field such as philosophy seeking a job at either a research university or a liberal arts college share common attributes. They will all have Ph.D. degrees in philosophy for which they will have received disciplinary training in methods, problems, and so on. They will have all written a substantial body of scholarship in the form of a dissertation. Most will have taught while at their graduate institution or picked up courses while finishing their dissertations at other nearby colleges or universities. What differentiates the placement of a Ph.D. in philosophy at a research university or liberal arts college will in part be a function of the quality of the demonstrated scholarly potential of future work (in the current market, a good deal of luck may be involved as well). But those who emphasize teaching or those showing potential for being the next Bernard Williams will share a common interest and demonstrated ability to engage in scholarship at some level. They enter philosophy as a discipline in which teaching and scholarship are intertwined, albeit in different proportions at different institutions. The ability to have confidence that a candidate will be a good teacher depends on the demonstrated commitment a candidate has shown to philosophy as an intellectual discipline through scholarly inquiry. Law school hiring, absent indicia of scholarly potential, lacks this criterion.

Most law school hires will have a J.D. degree, more than likely from five or so “top” institutions. In completing the J.D., especially outside the “top” law schools, students are unlikely to have training in methods, problems, or other aspects of engaging law as a scholarly discipline. Someone completing a J.D. is unlikely to have taught law, or to have conducted a major research project. In the absence of these markers of scholarly potential, what would serve as a signal that a candidate will be a good teacher? Practice might be one indicator, but one that is unable to discern whether the “good” teacher will be one who garners student accolades for spinning war stories from days in practice or one who intellectually challenges students. The move towards focusing on scholarly potential seems to me inseparable from taking teaching seriously within a university unit.

This last point is particularly important, I think. One response to my argument might be that the deeper question is: why think that law needs to be taught by those interested in or engaged in scholarly activities? After all, isn’t one of the purposes of law school to train future practitioners of law? So, practice-orientation should be sufficient as a norm for law teaching. In asking and answering this question, however, one invites the analogy not between liberal arts colleges and research universities, but between an academic discipline that belongs in a university and a practice better located in vocational school. To the extent that most law schools are units within a university, the question of vocation versus academic discipline seems to be mostly settled. And if law is an academic discipline, then we should expect scholarly potential (to varying degrees) to be a key criterion for hiring—both for the sake of scholarly output and for teaching potential.

Finally, each of Brian’s responses hinge on instrumental notions of reputation or ranking in light of some criteria partly external to academic practice. Although these considerations play a role, I think that any full explanation of Brian’s question must also take into account the intrinsic values of disciplinary training and scholarship. Academically minded folk tend to want be around other academically minded colleagues. Part of the intrinsic value of what we do is to engage each other with ideas, seeking to further knowledge and understanding (and to share these ideas through teaching). So, perhaps the focus on scholarship is also demand-driven. Enough like minded, academically interested persons want to be around the same (or, squirrel seeks squirrel, so to speak), to generate strong scholarly expectations across schools.

Posted by: Thomas Crocker | Oct 26, 2011 11:17:08 AM

I want to agree to with Frank Cross's comment about universities as one less-understood aspect of this phenomenon. There are external pushes (US News ranking) and internal pushes (the self-identify of law faculty as scholars and the professional identity of legal academics as essentially different from practitioners), but also the middle push by central administrations and the university tenure process. I teach at a Research I university which imagines itself as a top public land grant institution. The identity of central administrators and all faculty rest on the ability to make that claim, as does to some extent grant money.

In the tenure process, the review of the all-university review board is crucial and not simply a rubber stamp; indeed, several years ago the Provost, at the behest of the review board, sought review of our tenure standards on the assumption that our fairly generic quantitative expectations seemed low. When we demonstrated that at least our published standards were in fact quantitatively higher than those of some top-10 schools, we were deemed in compliance. But the message was clear: Your junior faculty need to be productive scholars.

Although this doesn't explain the behavior of stand-alone law schools or, as Brian notes, schools located within lower-profile universities (eg, W&L), it is one of the ratchets affecting a competitive process for talent and reputation.

Posted by: Mark Fenster | Oct 26, 2011 1:18:06 PM

I think we like to tell ourselves that the prime factor in our hiring is the promise of ongoing production of excellent writing -- and that this may actually drive hiring in the very top tier -- but that for the rest of us, it's mostly just something we like to tell ourselves.

This is not to dispute that a record of publication has become a prerequisite at most schools; it obviously has. It is simply to say that once a candidate crosses the threshold of having a couple of things written or in the works, the differential degrees of promised productivity among candidates fall away, and actual hiring decisions end up turning on other factors entirely (curricular needs, personal connections, diversity, sense of institutional "fit," and the like).

Posted by: Eric Muller | Oct 26, 2011 7:52:12 PM

I think that quality scholarship does say something about the intellectual ability of the author, moreso than practice experience per se. And while in law school we are training students to be lawyers, the old cliche that we are actually most fundamentally teaching them to think like lawyers, means that we want them to be taught to think legally by those who have proven that they themselves can think legally at high levels of ability. So I think scholarship is a way of separating candidates on the basis of their intellectual ability, along parameters that are most useful for the profession of being a law professor.

Posted by: Dan Joyner | Oct 27, 2011 8:01:54 AM

In his post above, Thomas Crocker suggests that scholarly potential is a proxy for teaching quality: "The move towards focusing on scholarly potential seems to me inseparable from taking teaching seriously within a university unit." If that is true, though, shouldn't we expect teaching evaluations to play an important role in the lateral hiring process? Laterals have a record of teaching evaluations, so we can know with some confidence if the professor is a challenging and inspiring teacher or not. But my sense is that evaluations are at best a minor consideration in lateral hiring at most schools.

Posted by: Orin Kerr | Oct 27, 2011 9:09:48 PM

I'd like to respond to Orin Kerr's comment by noting that student teaching evaluations are not an unquestionably valid means of measuring teaching quality. In fact I think they are quite an ineffective measure of teaching quality. In my experience, student teaching evaluations are at least as likely to reflect how entertaining and likeable students think a professor is, as they are to truly reflect how challenging or inspiring a professor is, or how effective the professor is at actually conveying knowledge and skills. As I said above, I think that quality scholarship that is peer reviewed by hiring committees (at least) is a better measure of the intellectual ability of the candidate, which surely does bear on teaching ability, than are student teaching evaluations.

Posted by: Dan Joyner | Oct 28, 2011 11:39:40 AM

I am surprised that so many commentators asssume such a sharp dichotomy between research and teaching, in fact there is a substantive argument why emphasizing such a split is bad for the legal academy. The two categories ideally reinforce each other: the law prof comes up with original ideas about how the law can be changed, and then communicates this sense of contingency to the students. My experience has been that for students, having a teacher who her/himself is moving the law in a particular direction (say by having courts cite books and articles) is inspiring and avoids communicating the false idea that the legal world is static. At my institution we have been able to hire people who do both well, and are gratified that we have been able to do so. Peter L. Reich, J.D., Ph.D., Professor of Law, Whittier Law School.

Posted by: Peter Reich | Oct 28, 2011 4:17:23 PM

Dan Joyner, I am not suggesting that teacher evaluations are an "unquestionably valid" measure of teacher quality. But teacher evaluations typically give students the opportunity to say *why* they liked or didn't like the professor, and those comments would seem to quite important if schools are genuinely trying to hire laterals based on how much the professor inspires students or teaches material. The fact that most schools seeking lateral candidates see those evaluations as at most an afterthought seems to cut against that explanation. Or so it seems to me, at least.

Posted by: Orin Kerr | Oct 29, 2011 2:57:27 PM

I am late to the extended thread. I agree with Dan Joyner, and suspect that Orin’s claim that schools might try “to hire laterals based on how much the professor inspires students or teaches material” puts the point in the wrong light. For law schools to take teaching seriously in lateral hiring, they need not look for crowd pleasers based on student evaluations (even when students justify their views). Though, at the other end of the spectrum, I imagine most schools may very well be concerned to learn that a professor consistently gets dreadful evaluations. But, more important I think, a school looking to hire a leading scholar in privacy, for example, will do so in part so that the candidate can offer advanced courses in privacy law. The ability of a professor to teach advanced courses in a subject matter depends on that professor having demonstrated advanced knowledge and understanding of the subject through their scholarship. Such a school will be able to promote its courses to students by saying “at X law school, students will have the opportunity to learn from leading scholars in their field.” In this way, a necessary (and perhaps sufficient) condition for inspiring students in advanced courses is to provide them with instruction from leading scholars. In so doing, a school takes teaching seriously in ways other than consideration of student evaluations. So I think the claim still stands: focusing on scholarship is inseparable from taking teaching seriously.

Posted by: Thomas Crocker | Oct 31, 2011 9:52:50 AM

As an entry level candidate, I think there's also a "demand side" element at work here as well. Law students don't like to think of themselves as vocational students, and, at least for the top tier law schools, they don't emphasize vocational learning. So to the extent that law students care about taking a particular professor, it's not typically because that professor is a good teacher, but rather because that person is a public intellectual, has interesting (and controversial) theories in their subject areas, etc. When I went to law school, Larry Tribe's con law class and Elena Kagan's admin law class weren't highly oversubscribed because they were great teachers, but rather because it was thought that they'd have interesting perspectives on things (e.g., Tribe's Bush v. Gore discussion days were always packed, including with a fair number of non-students).

I'd suggest that this dynamic is actually similar in many ways to the dynamic in law firms between "stars/rain makers" and "service partners". The latter are of course crucial, but they're essentially a fungible commodity that don't add tons of value to the firm. Clients aren't typically drawn to a firm by the service partners who work hard, make sure everything is technically perfect, and actually get things done; rather, they're typically drawn in by the big names who have the reputations for legal excellence.

Posted by: Faculty candidate | Nov 6, 2011 7:18:06 AM

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