Law Faculty Hiring and Socioeconomic Bias

Faculty recruitment.  A topic that just never grows old.  

And Tennessee law professor Michael Higdon (pictured) recently posted an article on SSRN that merits the attention of faculty recruitment committees.  The article is entitled "A Place in the Academy:  Law Faculty Hiring and Socioeconomic Bias."  From the abstract:  "to the extent a law school values having a socioeconomically diverse faculty, hiring exclusively from elite law schools makes achieving that goal more unlikely.  After all, numerous studies have revealed that those students who attend the elite law schools are overwhelming representative of the top level of the socioeconomic spectrum."  The author's proposal?  "I conclude the article by proposing that when a law school engages in faculty hiring, it treat academic pedigree as merely one factor in the hiring determination – not the sole determinant as it is commonly used today."  The full abstract is here. 

As I read the author's proposal, I thought:  "Do faculty hiring committees use academic pedigree as the sole determinant?"  Wow!  Really?  Call me naive, but I'm skeptical.  Might faculty hiring committees "overweight" the importance of academic pedigree?  I could agree with that statement.  But I also wonder whether, in recent years, scholarship (whether "none vs. some," or placement) might be the dominant factor for many (most?) hiring committees.  I'd be curious to know what others think (hiring chairs, committee members, faculty candidates).  

The article offers some great food for thought.  Download it and give it a read.  We've got less than eight months to go until the AALS hosts its annual faculty recruiting party in DC (October 11-13).  Those FAR Form distributions will be hitting your email box before we know it!  (And, as in prior years, the Form probably will disclose a candidate's academic pedigree.)

Comments

[Michael J. Higdon]

Thank you Tim for posting this link to my article. Before others judge my thesis and the overall merits of the piece, I would encourage you to first read the entire article and not just seize on one two-word phrase in the abstract. Going to the language Tim has highlighted, as I explain more fully in the article:

If a hiring committee were to compare the abilities of a top graduate from an elite law school and those of a top graduate from a non-elite law school, I would have no quibble with the committee ultimately deciding that the student from the elite school was better qualified. Such a comparison, however, rarely takes place. Instead, despite the fact that most of the evidence we have on this point is merely anecdotal, any comparison that takes place is more likely to be something akin to, “Candidate X went to an elite law school, Candidate Y did not. Thus, Candidate X is a more capable candidate.” In fact, this is the comparison that seemingly takes place even if Candidate Y excelled in every way at the non-elite law school, while Candidate X merely graduated from the elite law school. In short, when it comes to getting a teaching job at an American law school, simply getting admitted to and graduating from a top law school will always give one a leg up on the competition. Applicants like Candidate Y rarely even get a chance to make their case—they are eliminated early on based almost entirely on the source of their J.D.

Thank you again, Tim!

[Jeffrey Harrison]

It is not the sole determinate but it is necessary. You also must be politically acceptable.

[Jeffrey Harrison]

ant, I mean

[don]

Ditto for getting published in top law journals. You can have a blockbuster article but law review editors will presume a lower quality submission from an author associated at an "elite" school is better. Basically, unless you teach at a Top 20 school it is incredibly hard to have your article reviewed by main law review or international law journal from a Top 20 school. It can be done but it is very very tough. Its not personal, but the editors are time pressured and have to go with "name" over taking the time to read through the countless submissions many of which are not worthy.

[Ray Campbell]

To the extent socioeconomic diversity is the goal, I think the move to requiring a substantial publication record before hiring is part of the problem, not the solution. There are those who can bang out two or three high quality articles while working 80 hours a week at a law firm job they need to keep so they can start paying down debt, but those are exceptional people. The increasingly common route is to take people out of fellowship and visiting assistant professor programs. Not everyone can meet their financial obligations while in those programs, and not everyone without a family safety net will be comfortable taking on the career risk entailed in pursuing that option. Path dependency being what it is, it's not always possible to go back to practice with the same prospects if the pursuit of the teaching job doesn't succeed (indeed, at an anecdotal level, I've known of people who have gone from prestige law firm to VAP to hourly document review).
That's not to argue that law schools shouldn't insist on publication records. It's just to say that there is a gamble involved in pursuing the fellowship/VAP route. Not everyone can afford to lose the gamble, and that will impact the pool of candidates presented to law schools in a way that favors those with more economic resources.

[David Jenkins]

Thanks for this article and for saying what needs to be said. As I also do not have the proper pedigree, I have made a successful career as a law professor outside of the United States. As much as it pains me to say it, many foreign law faculties are much more socially inclusive than American ones and do consider one's university as only one hiring factor among several others. Their hiring committees place particular emphasis on two other indicators of scholarly potential, which alleviate social-economic biases to some great degree.

For example, heavy emphasis is often placed on a good PhD in other disciplines or, most usually, in law itself (for example, after my LLM, I wrote my doctoral dissertation in comparative law in Canada). This not only allows one to "trade-up" by doing post-graduate legal studies at a higher-ranked institution, but specifically trains an individual for a scholarly career in research, writing, and teaching. In this respect, the academic law track in foreign jurisdictions is very similar to that in other academic disciplines, so that aspiring law professors are drawn directly from academia rather than legal practice.

The other, and perhaps most important, foreign hiring criteria is a publication record, usually begun while one is doing a PhD program. Because foreign law journals (at least the English speaking ones) are all anonymously peer-reviewed, a publication in a solid journal is a clear indicator of one's sholarly competence. On top of this, many hiring committees require submissions of published articles and really do review them: even the perceived rank of the journal takes second-place to the committee's independent assessment of the quality of the sample publications. Journals, then, make up the even terrain where graduates from elite and non-elite institutions equally battle out their academic careers - just as it should be. Unfortunately, because American student editors know the names of contributors and often make offers based upon them, graduates of non-elite law schools are also prejudiced in publishing in the US for reasons of pedigree totally unrelated to the quality of an individual article. In fact, it is not uncommon to hear well-regarded foreign academics bemoan the quality of some "top" American legal scholarship, for just this reason.

To sum up, at many good foreign law faculties academic pedigree recedes as the dominant hiring criteria due to the emphasis on post-graduate degrees and, especially, individual publication records in anonymous, peer-reviewed law journals. I have been impressed, for instance, by how many British legal academics - many at the top of their field and in the top-5 UK law schools - have come up through the ranks and succeeded based on their talents, not their degree institution. The best British, Canadian, and Australian law journals regularly publish excellent scholarship by scholars with modest origins. Such opportunities are slim in the American legal academy, which refuses to recognize its class-prejudice and elitism. One alternative solution to the problem of aspiring, "non-elite" American academics, then, is to look to Canada, Britain, or elsewhere, where you will be appreciated for what you can do, rather than judged by where you came from.

[Larry Rosenthal]

Interesting, isn't it, that the question whether law schools hire persons capable of imparting marketable skills to their students does not seem to be on the radar. This may explain a thing or two about the current state of legal education.

Larry Rosenthal
Chapman University School of Law

[CHS]

When was it ever the case that law schools picked professors based on their capacity to impart "marketable skills to their students?"

[Anon]

Michael - I'd like to hear more about why you're suggesting that someone who "excelled in every way at [a] non-elite law school" would be a better candidate than someone who "merely graduated from [an] elite law school." Are you saying the former candidate should be considered smarter? More dedicated? More likely to produce good scholarship? Thank you for any clarification you can provide!

[Anon Response]

Michael can undoubtedly speak for himself, but I think his point is that one's school should just be viewed as one factor, and not the deciding factor. So, the candidate who "excelled in every other way" may or may not be the better candidate. Instead, the candidate from "an elite law school" shouldn't automatically be viewed as superior because of that single criterion.

I also have a question for Michael. For profs who graduated from an elite school, but teach in non-elite schools, what should they tell particularly bright students who would make great professors? Is an LLM from an elite school the only answer? Should it be?

[Michael J. Higdon]

Anon Response, that is exactly what I meant. Thank you.

As for your question, no I don't think that should be the only answer. However, I think that can help. I also think a prestigious VAP is also a good route to take. Bottom line, I think publication is the best help one can get. Specifically, I think those candidates need more than on one publication, and the piece should ideally be in a highly ranked journals. I think the real benefit to the VAP and LLM programs is primarily the way in which they can assist a candidate in producing scholarship (secondarily in the way they can help market a candidate). Now there's lots of "I think"s there because I never did either. Those who did can speak more to how well they work. I do think publications in "good" journals is key though (and sending articles out on the letterhead of the University where you're doing your VAP or receiving your LLM can help in that pursuit). Gaining teaching experience as an adjunct may help as well (to the extent the candidate's less-than-elite credentials automatically cause hiring bodies to question his/her ability to teach--a question I think is less often asked concerning those with elite J.D.s). Finally, focusing on an area of law where there is less competition in the marketplace can also be a benefit.

Just my .02. I'm sure there's several potential paths, it's just that those with non-elite J.D.s will encounter many more obstacles along the way.

[David Case]

I don't think an LL.M. from an elite school is the "answer" for bright students from non-elite law schools. The credential itself is not enough to overcome the disadvantage in the market for candidates with the non-elite JD. The "answer" is simple and complex -- produce quality scholarship in order to demonstrate to the market your potential as a future scholar. Easy to say; quite difficult to actually accomplish. If an LL.M. program from an elite school moves a bright student from a non-elite school in that direction, then it will be helpful, but an LL.M. program in an of itself does not make someone into a scholar.

I did the elite school LL.M. path to try and overcome the non-elite school JD disadvantage, and it did not work primarily because I didn't understand the need to convince the market I was a serious scholar part at the time I was doing it. I subsequently figured out the problem and worked hard and seriously on the scholarship part (through a Ph.D. program) and was successful (and very fortunate/lucky). The best advice profs can give their students who are interested in becoming professors is to focus their attention on the difficult undertaking of "becoming a scholar." Samuel Buell talks about this in his recent work "Becoming a Legal Scholar" which is available on SSRN (or just Google it).

[Mark McKenna]

Ray Campbell is exactly right that the increasing emphasis on VAP or fellowship positions is only going to exacerbate this problem. I think it's notable that many of those programs started out as means of leveling the playing field for less traditional candidates but have become just further credentialing mechanisms such that the people who get the fellowships are the people who would have gotten good jobs on the entry level market 10 years ago.

[Jeffrey Harrison]

Anon makes an interesting point. At my school, as is the case at most others, the teaching is done mostly by grads of elite schools. As far as I can tell, they have rarely, if ever, had a student who they regarded as worthy of a law teaching position. Is this a commentary on what they think of the students or of their own teaching and teachers?

[Ray Campbell]

As someone with a pretty good but not ultimate academic pedigree (Yale undergrad, Virginia law), I think it's a gimme that the legal academy errs in so absurdly favoring top law schools. Consider the following:
1) As a general rule, the later you can make a decision, the better decision you can make. there is a value in making a decision based on information that is revealed later in the decision making process. (Don't take my word for it - go spend some time working through the economic theory on how financial options are valued, all of which depends on this insight). Law school graduation depends on law school admission, which means we're really looking at LSATs and undergraduate GPAs. We base hiring decisions on information that does not take into account much of what happens after age 22 even though we know that people mature at different rates, with brains not being fully formed at the undergraduate age. Put differently, we're in effect giving back the value of the option of deciding later based on more complete information, by choosing to ignore what happens in subsequent rounds (at least with regard to those who did not receive or declined elite law school admissions, who are excluded from any further sorting processes). Why, aside from being lazy or wanting to perpetuate an irrational affinity grouping, would we want to do that?
2) Not everyone does or should go to the highest ranked law school they get into. I didn't. For a variety of reasons (cost, family ties, etc.) I wisely turned down higher ranked schools to go one that fit me and that I could comfortably afford. Plenty of others make similar choices based on scholarships, tuition cost, proximity to family, and initial career plans that do not include law teaching. If we really think there is something magical about the day the law school admissions envelopes arrive, we need to ask what schools were turned down.
3) If we think the inputs to law school admission are all that meaningful and reveal one's destiny, we should ask for them directly in the AALS job application packets, soliciting LSATs, undergraduate GPAs and recommendations from undergraduate teachers. That this likely appears absurd might suggest that depending so strongly on a proxy based on those inputs also is absurd.

[mls]

While it seems that this conversation is likely winding down, I thought I would chime in with a couple of thoughts. The actual reality is that any hiring process is dependent on proxies, which will always be imperfect. It is simply not possible to interview every person interested in a teaching position and if one is going to use a proxy, then school attended and/or grades is not a terrible place to start. It is just like LSATs, if you have limited information you will generally be better off choosing from the top rather than the bottom of the score scale. (This is true outside of law too where schools most commonly choose from the top programs, though those programs may not always be at the top Universities.) Within law, there is the additional problem of the student-edited law reviews, which often seem to make their decisions in part on where the person is writing from. Here is where I think law schools go badly wrong, namely by relying on placement as a proxy. At the same time, it is simply not possible to read everything applicants have written so we are left in a pretty poor selection position. All of this is to say, that, for better or worse, anyone who is interested in becoming an academic, and knows that at the time they are deciding on law school, should go to the best school they can.

[John W. Nelson]

Law professor hiring has many issues. One alluded to in a couple of other comments was the fact that few hiring committee look at the ability of a professor to impart practical knowledge to students. This can be through anecdotal stories that illustrate lessons in more traditional courses or through clinics. Hiring committees do not seem to consider this ability generally, however. (This is best illustrated by the bias against lawyers who have spent a more than the sweet-spot 3-5 year window practicing.)

Hiring committee use other proxies as well. Did you work in a small firm, or a rural firm, or have your own practice? This will likely be a strike against you when your competitors work at a BigLaw firm.

I think the most dangerous proxy, however, is the legal alma mater of the applicant. A candidate that worked hard at a regional school, made top of the class, edited law review, and participated heavily in various law school programs can be viewed by some on hiring committees as an inferior candidate to the person who barely graduated from Yale or Harvard.

This is nonsensical. It actually decreases the chance that you will find a candidate dedicated to scholarship and teaching who will end up being a good tenure track professor. Writing scholarship is hard and requires time and dedication. Writing good scholarship is even harder. Add in teaching and being involved with the running of the law school at the professor level adds more time commitments. The better proxy for these skills would be the class rank and activity level of a candidate while in law school, not the tier of the school from which they graduated.

Nevertheless, I do think this is changing. Sure, VAPs are becoming more like the old tenure track positions when it comes to their competitiveness. They look for people they can successfully place on the market once they complete their VAP. This means the proxies used by hiring committees often come into play. (And some end up being a post-doc option for that school's own grads.)

Even so, I often hear from professors that law school faculties from the '60s, '70s, and '80s were overwhelmingly white male Ivy grads. Today, people from schools like my legal alma mater at least have a chance. (In what used to be called the third tier by USNWR.) Publication gives us that chance, even if it is slim.

I believe the most intriguing part of Mr. Higdon's paper is the idea that hiring from non-elite law schools will improve faculty diversity in a number of ways. Faculty diversity, by the way, is a proxy or shorthand for providing law students with a diverse set of role models—people from different backgrounds, different practice experiences, and different routes taken to their current posts.

This is a good thing, and I think Mr. Higdon's paper has a good point.

[Jeffrey Harrison]

Interesting conversation. One can grant, which I do not, that top of the class from elite schools, supreme court clerks, etc, have a higher probability of success. But that does not explain why a school ranked say 40-150 would opt for bottom of the top third at an elite school over top of the class, editor, etc., from a non elite school. At that point, the proxy really means nothing. There are anecdotes all ways but it is particularly discouraging to watch a professor with the most expensive and elite eduation in Amerian get tenure and then wash out when others were not interviewed.

[Michael J. Higdon]

Jeffrey, I agree 100% with that last comment. I often wonder if what isn't driving this is what I call the "postcard" effect -- by that I mean, the postcards law schools send out announcing their new hires each year. For new hires from the elite schools, the hiring school can just say "we got Sally Smith from Harvard!" for the non-elites, it would take more words to persuade recipients that the school made a good hire: "We got John Smith from Podunk U. But, hold on folks! He was EIC and published several articles in well-regarded journals. Here are the citations . . . " In short, there just isn't enough space on the postcard for them to make their case. Plus, those receiving the postcards have a short attention span for such announcements (as we regularly get inundated with such "communications"), meaning recipients are unlikely to be willing to read that much detail to be adequately impressed at the sender's good fortune in making said hire. In other words, the J.D. can be a quick way of communicating "Hey, we got a good one!"

I'm being a bit flip in proposing that theory, but when I was on the market, one of my mentors mentioned me to a friend of hers at a third-tier school who was looking for someone in my area. They reported back to her that, despite everything else being great, they just couldn't hire someone from a low-ranked schools, as they were a third-tier school and, thus, they needed an entry level person who would be an "impact hire." My J.D. just wouldn't cut it. They ultimately hired someone who went to a top-5 school, who never published, never taught, never clerked and was never on a journal.

Of course, to the extent my postcard theory holds any water, none of this would work if those receiving such postcards weren't so likely to be impressed by J.D. alone. A good analogy is publishing. If you had a faculty candidate who said, "Hey, I published an article!" -- you probably wouldn't be all that impressed until you had more information like what the article is about, what's the thesis, where did it place, etc. After all, just publishing something somewhere isn't that difficult.

But as long as we all are willing to let J.D. alone be the mark of quality without similar follow-up questions, why wouldn't law schools be tempted to put such extraordinary emphasis on pedigree?

[Z32]

There's also a pipeline problem exacerbated by the combined impact of both sky-high student loan debt for recent law grads and the emergence of low-paying VAPs and fellowships (or a Ph.D.) as requisites for tenure-track positions (especially for aspiring academics not from top schools). Those of us with 6-figure debt loads are less willing/able to make extended financial sacrifices for an academic career, and suffer greater economic consequences if we do.

Brian Tamanaha addressed some of these issues in a post on Balkinization last fall: http://balkin.blogspot.com/2011/11/debt-travails-of-one-of-our-law.html . (Brian's new book also addresses how less well-off law students end up subsidizing the education and eventually the careers of their better-off classmates while in law school, through the merit scholarship system and otherwise.)