Types of faculty appointments: a ten-point guide

Faculty hiring practices, Brian Leiter speculates, have fundamentally changed during the past generation. He's right. Though Brian focuses on hiring practices at elite schools, all of legal academia has undergone a seismic shift in hiring practices. What Brian and his commenters say of Texas, Michigan, Stanford, Yale, and Harvard applies with ever-growing validity to the vast stretch of legal academia that fits an expanded conception of T4.

Brian Leiter quotes an unnamed "faculty member who has taught at several of the top law schools":

In the last 20 years, there have been two huge shifts in hiring. 20 years ago, lateral hiring was unusual: almost everyone built their faculties from the entry level, and almost no one moved -- at least among the top 10-15 schools -- unless it was for personal reasons. Hiring committees were essentially about entry-level hiring and you only looked at a lateral hire when someone reached out because they had an interest. Beginning in the early 1990s, lateral movement became much more common, leaving us in our present state of constant churning.

Second, once the initial round of churning was over and all the low hanging fruit had been picked, we shifted to lateral hiring of people just before or just after tenure. I think of this kind of hiring as a hybrid: it's almost an extension of the entry level. People are hired before they've really done significant work based on some early work that signals promise.

In commentary on Brian's post, Ethan Leib views these trends with approval:

I suspect this trend mirrors the trend away from hiring entry-level people who show only promise and Supreme Court clerkships. The proxies used during entry-level hiring have proven themselves to be very bad predictors and schools probably have grown to realize (or will continue to realize) that entry-level hiring at the top tends to be guesswork (and tends to create success instead of recognizing it). More, given the presumption of tenure, it is hard to get rid of people.

Given how I view the Supreme Court credential with suspicion (and perhaps even with extreme suspicion), it isn't at all surprising that I agree with Ethan. I endorse an earlier MoneyLaw commenter's observation that "the best reason to support lateral moves" may be this trend's ability to compensate "for the poor decision-making at the entry level in hiring," which may well afflict law more profoundly "than . . . most other fields."

Disclaimer

Before 2002, I played no role in appointments at Minnesota except as a dinner companion for candidates and a rank-and-file voter. Since 2002, I've participated in the frantic and largely successful program of faculty reconstruction initiated by former Dean Alex M. Johnson, Jr., and continued even after his resignation in May 2006. Caveat lector: this list may be worth less than its price of admission.

Regardless, whether you side with Ethan and me, or whether you rue the decline of the traditional proxies for future scholarly productivity, what all of us need is a guide to the types of faculty appointments that law schools today are likely to encounter. I've prepared the following taxonomy on the basis of my admittedly short but intense experience with law school faculty appointments. In each of the ten categories I cover, I offer a few observations regarding these three factors:

• Cost. Strictly as a function of salary, some appointments cost more. The relevant time horizon for decisionmaking in many academic institutions is no longer than a single academic year. This may not be ideal, and it probably isn't, but this is the reality for most law schools outside the well-funded elite.


• Risk. Jeff Harrison astutely observes that any offer of academic employment is, for all practical purposes, an offer of lifetime employment. In many instances, law schools come to regret at least some of the lifetime appointments they make. It's therefore worth exploring whether different types of appointments carry significantly different levels of downside risk.


• Reward. Prospect of gain, not risk of loss, is the fundamental currency of hope. Generally speaking, younger scholars promise more upside than their more senior counterparts. Of course, risk is nothing besides misapprehended or unrealized "upside." So pick carefully.

1. The supplicant -- a.k.a., the VAP

Visiting assistant professorships, by design, are not meant to be permanent. But because they are arguably the most prominent type of academic appointment to have arisen in the past two decades, they deserve a place in this taxonomy. Supplicants are much cheaper than regular faculty members, and their exclusion from the tenure track drives the risk of a VAP appointment close to zero.

2. The raw rookie

Pure entry-level hiring remains the currency of the realm in many corners of legal academia. Despite its inherent risks, which elite institutions are learning to minimize by shifting to lateral hiring, the hiring of raw rookies remains very popular outside the top 10 or 15 law schools. It's certainly cheaper in the short run, and many law professors cling to the belief -- one that, as far as I know, has not been tested, let alone vindicated or disproved -- that faculty members hired as rookies are more loyal and perhaps even more productive than lateral hires who arrive as free agents.

3. The senior junior

One way to shift the risk of an improvident entry-level hire is to let some lower-ranked (or otherwise less attractive) law school appoint the rookies it meets at the AALS hiring combine. Once a junior scholar establishes that she or he no longer poses a realistic risk of flunking the tenure process, a more elite school can poach at leisure. Frankly, I wonder why any school with enough prestige and enough financial resources to pursue this strategy would even bother scouting entry-level talent at the AALS combine.

4. The junior senior

The only real difference between a senior junior and a junior senior is a tenure evaluation conducted by another law school. In principle, why should a law school pay any attention to another school's tenure evaluation when its own faculty needs to conduct an independent, de novo review of a candidate for a tenured or tenure-track appointment? The salary premium that a candidate with tenure commands, at least vis-à-vis a senior junior, suggests that some schools either do put great weight on a competing school's tenure evaluation or are looking for ways to shift the blame in case they do make an improvident appointment.

5. Tenure trouble

Tenure petitions do get rejected from time to time. Smart deans and faculties -- and even smarter tenure-track candidates -- who anticipate tenure issues will send candidates into the lateral market in search of a "soft" landing. Tenure trouble and tenure denial are equalizers: whereas most other types of lateral hiring disfavor lower-ranked schools and benefit elite schools, problems with tenure enable lower-ranked schools to pursue candidates who otherwise would have no interest. Since tenure denials (whether realized or merely anticipated) are not necessarily justified, they present daring, diligent schools with a great opportunity to turn the tables on their elite counterparts.

6. Tenure denial

The devil fools with the best-laid plans. Some troubled tenure petitions come to final and negative judgment. The stigma of tenure denial, in an market where tenure is nearly automatic, is so severe that this category warrants distinct treatment relative to the previous category of mere tenure "trouble." Schools may well hesitate to interview lateral candidates who have been denied tenure. It is worth assessing whether that hesitation arises from legitimate concerns over a candidate's ability or from fear of the stigma associated with an outright denial of tenure.

7. Musical chairs

Scholars at the peak of their fields and the peak of their own careers are prime targets of opportunity for schools with the resources to confer endowed chairs, salaries, and programmatic support to coveted lateral candidates. From the perspective of the hiring school, a "musical chairs" move is the ultimate high-cost, high-reward endeavor. In other words, from the candidate's point of view, this is nice work if you can get it.

8. Eminence grise

Hiring established, senior scholars represents one of the oldest ways by which lower-ranked law schools would try to acquire prestige overnight. Family and lifestyle considerations reign paramount. Some schools, especially in California and the Sun Belt, historically made very heavy use of this strategy. But eminence grise has attained its eminence elsewhere (which is to say that upside gain is constrained), while the gris(e) nature of the most senior lateral candidates renders this strategy exorbitantly expensive.

9. The emigré(e)

Some tenured professors are eager to leave. Personal needs and responsibilities may overwhelm professional preferences. Or perhaps their home institutions have descended into an abject state of academic kakistocracy. Four or five committed Arschlöcher can totally wreck a school. Smart appointments committees target opportunities of this sort. Often the professor in question has already decided to leave. The only question is the identity of the school where she or he will ultimately accept asylum.

10. The law of love and gravity

"Nobody runs from the law now baby / Of love and gravity." This Dixie Chicks line makes a fine social anthem. In an age in which elite-trained individuals form families with other elite-trained individuals, this DCX line also counsels smart law schools to keep an eye on matched pairs. So too with the opposite: lonely junior professors willing to disrupt or even sacrifice some measure of professional prestige in order to find deeper dating pools. One further observation: The cold reality is that women continue to perform a disproportionately large share of child- and elder-care responsibilities. A law school that insists on a visit before it issues lateral offer will severely compromise its ability to attract female lateral candidates.

Photo credit: The orchid thumbprints accompanying each of the ten types of faculty appointments discussed in this post appear on a Mauritius website, Orchids of the World.