Wednesday, September 9, 2020
As part of the very enjoyable discussion on "The Legal Academy," Orin Kerr (Berkeley) asked me about how a school can hire strong scholarly faculty. I made a variety of observations related to this topic. A school must constitute a good hiring committee, meaning one with faculty who are engaged in scholarship and have good judgment about scholarship. Schools like Florida State and San Diego (two examples I gave) have, historically, done very strong rookie hiring (better than their peers), in part because Deans have invested serious faculty with good judgment with a decisive role in hiring at those schools. While "objective" metrics (like citations or place of publication) can be useful proxies, there is, as I said, "no substitute for reading" (as long as those reading satisfy the prior desiderata!).
Finally, there's the question of how to use recommendations from faculty elsewhere (no committee can read everything, so recommendations are often used to figure out which candidates deserve further scrutiny). Everyone who has done hiring has their own list of reliable and unreliable references, and everyone of course gives different weight to references based on their opinion of the recommender (if they have one). I gave the example of a recommendation from a professor at San Diego (an expert I respected in the candidate's area) that ultimately led to Texas hiring someone when I was chairing appointments there. I also gave the example of the Yale recommender who "never met a candidate he didn't love": such recommendations are useless, of course. I remarked that my own approach was not to credit or give weight to references from faculty I wouldn't hire, i.e., those I don't respect on the intellectual merits.
Alas, that last quip got mangled a bit on Twitter by Professor Eric Segall (Georgia State) in what was otherwise an enthusiastic recommendation of the interview: he reported me saying I "discredit" those recommenders (whatever that would mean!). But that mangled version then elicited an astonishing set of Twitter reactions, obviously from people who had not watched the interview and don't know me. Their reactions are understandable and hardly blameworthy (so I won't mention names), but they are worth clearing up and perhaps do reveal something about a worrisome and pernicious kind of status anxiety that obviously afflicts legal academia (for that reason, I will mention school affiliations).
The trouble began when an NYU professor responded to Professor Segall by saying she found the (slightly mangled version of the) quip "an extremely disturbing statement--one that, if true, likely compounds the impact of network effects on hiring and contributes to the exclusion of those who aren't part of the network." I had no idea the idiosyncratic group of people whose intellectual judgment and work I respect was so powerful as to constitute a network, but it became clear from a subsequent tweet that the NYU professor thought I meant "only those Chicago would hire," which, of course, is not what I said, since I don't believe that. Sometimes my judgment and my institution's coincide (other times my institution is wrong!--I've learned to live with that). But it would be manifestly silly not to credit recommendations from faculty that some school (Chicago or any other) would not hire.
A professor from Washington University then worried that, "This rule would presumably reinforce the bias against JDs from non-top schools," since he too misunderstood the point the way the NYU professor did. Of course, in the context of a conversation where I'd given the example of a San Diego professor whose recommendation led me to take a candidate seriously that was obviously not right. Indeed, as we know, a small number of schools produce (unfortunately) a disproportionate number of new law teachers; my approach to recommendations entails discounting precisely a lot of recommendations from faculty at Yale and Harvard! My own list of reliable and credible recommenders is populated with lots of faculty outside the "top 20" law schools.
A professor from the University of Tulsa also weighed in with concerns similar to the professor from Wash U, but then deleted them. Status anxiety is understandable and pervasive in the legal academy. Anyone using status as a proxy for intellectual merit is usually making a mistake. (Anyone who has read this blog for awhile knows that is my view.) At the same time, anyone who treats all letters of reference as equal is also making a mistake. Everyone evaluates a reference based on what they know about the recommender (about their judgment, their own work, their past recommendations etc.). That was my point, and it is hardly controversial, in law, or philosophy, or any other academic field.
Any faculty participating in hiring have to learn how to evaluate recommenders if they are to avoid wasting lots of time. But as I said in the interview, in the end, there is no "substitute for reading."