Breaking the elitist stranglehold: Three modest proposals

Yes, I still owe a more comprehensive response to Paul Horwitz and Bill Henderson. But since putting the Moneyball into MoneyLaw, as Bill might say, will take a substantial number of posts, I feel no hesitation in directing immediate attention to Bill Araiza's powerful post, "More reflections on hiring." Here are the choicest portions of Bill's post:

With a market that is so deep in talent, it’s easy for most schools to focus on non-risky candidates, that is, those that have all the right standard credentials (a J.D. from a top-10 law school, a clerkship, etc.). Many decision-makers in the process have incentives to do this. Appointments committees will get less flack from their faculties about not doing a good enough filtering job and will have to do less of a sales job to avoid an embarrassing and potentially faction-based “no proceed” vote at the hiring meeting. The “institution builders” among the faculty will feel more comfortable that they haven’t chosen someone who might trigger a difficult and unpleasant tenure fight a few years down the line. Faculty obsessed with rankings, or whose own self-worth turns in part on the prestige of their institution, will feel good when the next “New Faculty” brochure goes out in the Fall touting the school’s newest bright young things. * * *

[N]obody gets criticized for hiring the last Harvard B.A. /Yale J.D. /Second Circuit clerk with an article placed in top-20 journal. Unless you happen to have a dissenter among the faculty -– or better yet, on the appointments committee. Such a dissenter protests the uncritical reliance on standard credentials. She may be motivated by a concern that the process of racking up the standard credentials is one that is not fully open to women, people of color or people from lower socio-economic classes (see, e.g., the recent news about the dearth of female Supreme Court clerks). Or she may just be disenchanted by what can seem at times the cookie-cutter nature of so many top-tier candidates.

The problem, as Bill succinctly and accurately concludes, is that the dissenter faces almost insurmountable odds: "in a deep field of candidates it’s natural for committees to look for reasons to reject people, and difficult for someone to justify an idiosyncratic choice in a way that allows the chooser to conclude that he’s choosing methodically."

Count me among the dissenters. But Bill is absolutely right: if we dissenters expect to do more than merely "object[] to the process, or to its results," we need to start "offering affirmative suggestions either for how to do a search differently or who different to choose for the screening interview."

Very well then. I offer three modest proposals, all tempered by my recognition of their implausibility, that might begin to chip away at the elitist stranglehold on law faculty hiring:

1. Use prior publication as a threshold qualification and stick to it. The best predictor of future inclination toward scholarship is past production of scholarship. Of course, scholarly propensity doesn't exhaust the list of traits that law schools should consider when hiring faculty members. But if we are going to consider it, and I agree wholeheartedly that we should, doesn't it make sense to use an accurate gauge? Remember what Bill Henderson said nearly a year ago in his review of findings by Bernard Black, Paul Caron, and Rafael Gely: "only two variables ha[ve] any predictive power for 'more and better' scholarship: (1) number of articles before first tenure-track job, and (2) publication of a student note."

Let me be explicit. This standard demands that a faculty appointments committee be willing to stand firm against hiring anyone who has not published scholarship beyond a student note. It requires that full-time teachers of law actually read other people's scholarship. These tasks demand courage and hard work, two traits in short supply on law school faculties.

On the other hand, the use of prior publication as an absolute threshold has the refreshing effect of leveling the playing field in favor of hard-working candidates who have managed to publish articles. This criterion also neutralizes the existing tendency to favor candidates with sterling credentials, even when the ratio of those credentials to actual pages published defies mathematically definition.

2. Develop more rigorous quantitive measures of academic performance. Part of the goal of MoneyLaw is to document existing quantitative measures of academic performance and perhaps even to encourage the creation of new ones. But the obstacles to this strategy are formidable:

• Some qualities pertinent to the hiring decision (teaching ability, character, ethics, etc.) defy quantitative measurement. I would give up summer research grants in perpetuity for the ability to silently excise any colleague whose Neigung nach Arschlochkeit negates whatever intellectual value his or her scholarship brings to my school. (Apologies for not translating the very colloquial German; German Wikipedia's page for Arschloch explains much and puts you within one link of its English counterpart.) But this isn't a trait that lends itself to bibliometric measurement.


• Ours is by and large an innumerate profession, and the least numerate among us often take the greatest pride in their rejection of all things quantitative -- not to mention the deepest umbrage at anyone who would upset that pride.


• There is significant disagreement, even among those law professors who are willing to rely on "the numbers," over which traits should be measured.


• Entry-level candidates (but not laterals) often lack enough experience to lend themselves to meaningful quantitative evaluation.


• The underlying mathematics of any one measure may be sufficiently daunting, even for the quantitatively inclined, to dilute or even negate the value of that measure as a workable guide to academic performance. In drafting my recent working paper on law journal impact factors, for instance, I ran into the problem of justifying my resort to a stretched exponential distribution rather than a power law for modeling differences in influence among law journals. Say what? And all this for a measure that sheds some light on the use of law review rankings as a gauge of law school performance, a factor that is of limited value, or might even be potentially damaging, in the evaluation of individual appointments candidates.

3. Develop a short-form way of allowing candidates to describe themselves to their recruiters. Rather notoriously, the SAT has interposed an essay as an additional barrier between high school students and college. Actually, this might not be such a bad idea. What if we law professors asked some simple questions of our would-be future colleagues? At the very least, this would impart some real value to the otherwise frustrating eyestrain that is the AALS's Faculty Appointments Register form.

As matters stand, the FAR form allows candidates plenty of space to destroy their job prospects by expressing geographic biases. Why not ask some truly revealing questions, preferably quick jabs for which jobseekers can't prepare? I propose this not entirely facetious list:

• Do you speak some language besides English? If not, why not? Or perhaps you might tell us about your favorite book.


• 3, 4, 5, and 5, 12, 13 are Pythagorean triplets, or integer solutions to the Pythagorean Theorem, a² + b² = c². Quick. Name another triplet.


• Name your favorite song or other musical composition and explain why.


• Ballet, football, baseball, fencing, yoga, aerobics. Pick one, either to watch or to perform. Then explain.


• It's late June, and you observe the waning moon setting. What time is it, more or less?


• Please recount one thing you've done to a friend that you wish you could undo.


• What is your greatest weakness, and why should we hire you in spite of it?


• Okay. Just as a lark. What is your favorite plant or animal, and why?

Let me be clear: this is an utterly unworkable list of questions, and I do not seriously propose that any scout team at the AALS hiring conference ask these questions. But the range of traits that questions of this sort might gauge is not altogether irrelevant to any enterprise that demands great intelligence, which presumably includes law teaching. Perhaps you just have to be in the right frame of mind to appreciate the point.

More realistically, we might ask all entry-level candidates to describe, in some manageable number of words (100, 250, 500), a research agenda that they hope to accomplish before petitioning for tenure. Again, any filter that enables a candidate with less stellar credentials to demonstrate his or her fitness for the legal academy is one worth considering.