[Einer Elhauge, guest-blogging, May 24, 2007 at 9:16am] Trackbacks
The Exploding Laterals Law School Market.

What accounts for the explosion in the law school market for making lateral hires from other law schools? Law schools have long attempted to hire legal scholars from other schools. But the degree of competition for top laterals has become remarkable.

One indication is the huge number of law professors who will be visiting top law schools as reported in Leiter's Law Reports: 103, including Harvard (46), Stanford (4), Chicago (14), Columbia (20), NYU (19). Such visits are typically used to look over professors for a possible lateral offers, and clearly that is what is going on for a large number of persons on this list. The number of lateral visitors Harvard Law School will have next year will be double what the size of the whole faculty was in the 1950s.

Some of this will turn out to be professorial flirting, but a lot of these visits will result in actual lateral offers and moves. Consider the large, and highly prominent, set of laterals that have accepted offers from Harvard Law School during Dean Kagan's four year Kagan deanship: Noah Feldman, Jody Freeman, Jack Goldsmith, Daryl Levinson, Bruce Mann, John Manning, Gerald Neuman, Robert Sitkoff (just yesterday), Kathy Spier, George Triantis, Mark Tushnet, and Adrian Vermeule.

And the full returns are not even in yet on past visits, for Harvard still has outstanding offers out to: Yochai Benkler, Richard Ford, Pamela Karlan, Michael Klarman, Martha Nussbaum, Robert Post, William Rubenstein, Seana Shiffrin, Reva Siegel, Henry Smith, and Cass Sunstein. If even six out of these eleven outstanding offers are consummated, it will mean the addition of a total of 18 laterals, a remarkably sharp transformation of the school in a very short time.

What accounts for this explosion in competition for laterals? One might think the phenomenon is unique to Harvard. But the long list of visitors at top law schools indicates it is a more universal phenomenon. Still, there is a Harvard-centric theory. Namely, the Kagan deanship ended a certain amount of constipation in the Harvard laterals hiring process, and once Harvard started to aggressively pursue laterals, other law schools had to do so to keep up with the competition.

I think there is a certain amount of truth this. One individual can often make a remarkable difference, and Dean Kagan appears to have done so. But this explanation does beg the question: why didn't other law schools choose to compete by instead focusing more on the entry level market? There the level of hiring seems largely unchanged.

Other factors have also surely contributed to the current laterals frenzy. The large run up in the stock market last decade made donors and law schools relatively well-off, giving them the funds to pursue scholars and smaller class sizes. The revival of New York City by Guiliani made NYU and Columbia much more attractive places and helped them compete for top scholars. And all the top law schools have in recent years had deans who are young, smart, ambitious, and aggressive. But all these factors still fail to quite explain why these well-funded, more attractive schools with ambitious deans choose to focus more on laterals than on entry-levels, especially given that entry-levels do not require expensive visits and are generally easier to land because they are less likely to require a family-disrupting move.

I think the answer is related to a trend I mentioned yesterday: the death of doctrinalism. That death caused the entry level market to largely shift its focus to JD/PhDs as the set of persons who could, at the entry level, most plausibly offer demonstrable proof of their ability to engage in the sort of serious interdisciplinary work that modern law schools now require. But there is a relatively small set of such JD/PhDs to chase, so this strategy does not offer many opportunities for expansion. And it misses the large set of talented potential legal scholars who do not get PhDs.

One reaction to this limited pool has been to create fellowships to train JDs to do interdisciplinary work before they hit the entry level market. But this is a relatively new phenomenon and has not yet created a sufficient number of serious interdisciplinary entry level candidates to meet demand.

So the complementary alternative has been to use the laterals market to focus on those scholars who have proven their ability to do interdisciplinary work as professors elsewhere. We're often not sure which entry level candidates will turn out to be able to do such work, because many of them have not been given much of an opportunity to do so. But once they demonstrate such an ability in their scholarship, then the top law schools are all over them.

This explanation is consistent with the pattern of PhD hiring at the entry and lateral levels. For example, 6 out of 7 of Harvard's recent entry-level hires have (or will soon get) PhDs, and the one who does not was a quasi-lateral, having been a visiting professor here for two years first. In contrast, 9 of Harvard's 12 recent lateral hires have no PhD. I can attest that this pattern was not the product of any conscious design: it simply reflects which sorts of candidates seemed attractive.

Another trend that is consistent with this explanation is that lateral visits are now increasingly focusing on laterals much earlier in their career, often after they have been professors elsewhere for only a few years. This is a big change from the old model, where lateral offers generally focused only on fairly senior scholars who were the established leaders of their field. This shift makes sense if the shift to laterals reflects some substitution away from entry level hires because of the limited number of JD/PhDs, toward other young candidates who have demonstrated their ability to do interdisciplinary scholarship at another school. Look for more of the same in future, with some lessening of focus on laterals as fellowship programs expand to meet the demand for entry level candidates who can do interdisciplinary work without necessarily having PhDs.

DavidBernstein (mail):
The more interesting question is why Harvard or Yale should ever hire entry-levels, when they can get just about any lateral they want. Why take the risk of a disruptive tenure fights/denial with an unproven entry-level, when you can get a guaranteed commodity? Why not just pick off the best young (and not so young) folks at other excellent schools? Yale actually did this under Guido Calabresi, hiring no entry-levels, but lots of great laterals. I once asked a professor at a top school about this, and he gave an honest, but distressing answer: The very "unknowness" about entry-levels makes them easier to hire; once someone has a body of scholarship published, it's much easier for faculty members to find something they find unpersuasive, ideologically offensive, or whatnot, and oppose the candidate, destroying the consensus most schools require for laterals.

I think the trend toward increased lateral hiring (and hiring of Ph.D.s, who not only have interdisciplinary talents, but also a "record" of scholarship) is a sign of the intellectual maturation of top law schools, away from the "let's hire the editor-in-chief of the Harvard Law Review who clerked on 'the Court'" regardless of evidence of actual scholarly promise.
5.24.2007 10:32am
Bretzky (mail):
To use a sports analogy, this is liking asking why don't the Yankees build through the draft instead of free agency? The answer: because they don't have to.

Success is much more likely if you acquire someone else's proven performer than if you spend money on potential. And in academia, you have a much longer window of opportunity to take advantage of someone's proven abilities than you do in the sports world, so it is even more useful there.
5.24.2007 10:44am
Barry P. (mail):
...during Dean Kagan's four year Kagan deanship...

Good to see the Department of Redundancy Department hard at work :-)
5.24.2007 11:09am
Hovsep Joseph (mail) (www):
The revival of New York City by Guiliani made NYU and Columbia much more attractive places and helped them compete for top scholars.

Please. Giuliani may have been an effective mayor but I'd hardly give him the credit for "reviving" the city. The unprecedented and prolonged period of economic growth the whole country experienced during the 1990s was the primary cause of any "revival" NYC experienced.
5.24.2007 11:25am
Adeez (mail):
Hovsep Joseph: As a NYCer, you took the words right outta my mouth.
5.24.2007 11:56am
Hovsep Joseph (mail) (www):
I apologize if my above comment seems unnecessarily catty. The Giuliani reference was a small side comment not really related to the central theme of the post. I found the post quite interesting but reading a silly unfounded comment like that in the middle of an otherwise informative piece tends to make me suspicious of the veracity of other claims the writer makes that I may not be personally informed enough about to judge.
5.24.2007 12:25pm
Interesting post. I tend to doubt that the "death of doctrinalism" is the best explanation for the hiring trend, though. Isn't the trend more about the challenge of predicting success versus the luxury of having proof of it? Entry-level hiring is largely predictive. If you have a pile of entry-level candidates, and they haven't done much writing, a credential like a Ph.D. can be a good signal. The decision to get a Ph.D reveals a certain seriousness about the scholarly enterprise, and it also provides a specific set of tools that a future scholar can use. So at that stage it is valued.

In contrast, after few years of teaching the credential no longer matters very much. Candidates can be measured by their actual scholarly accomplishment. If lots of entry-level people have Ph.Ds, but laterals do not, it may or may not say anything about the value of the Ph.d.
5.24.2007 12:42pm
There may have been an economic surge nationwide during the 1990s, but it doesn't seem to have done much to produce a revival in, say, Washington or Philadelphia. So Giuliani must have been doing something right.
5.24.2007 2:33pm
Fat Man (mail):
In the future Harvard law grads will not know any law, it won't be taught to them, and they will not have any recommendations from faculty members, because the tenured faculty will be busy doing "research" and their classes will have been taught by visitors and part-timers. Good use of $100,000 of tuition money?
5.24.2007 2:52pm
Edward A. Hoffman (mail):
[Here is a response I just added to Randy Barnett's subsequent post on the same subject. My response might have worked better here, but I happened to see Randy's post first.]

Another factor is that both Harvard and Columbia are substantially expanding their law faculties, and neither seems interested in doing so primarily via junior hires. New slots at these two schools are filled by professors who leave other schools, creating additional vacancies which must also be filled.

This ripple effect means that, for each new position at HLS and CLS, several senior people at several different law schools will move. HLS and CLS are creating at least 40 new senior positions between them, and if each causes just three moves then that means 120 lateral hires that would not have occurred without the expansions.

I don't know about Harvard, but Columbia's hiring spree is likely to go on for several years. CLS is about to add a new floor of faculty offices to its main building, and will probably gain several floors in a building it now shares with the business school when the B-school moves a few years down the road.

If my explanation is correct then the number of laterals should return to normal after all the new slots at Columbia and Harvard are filled -- unless other top law schools follow suit and expand their own faculties.
5.24.2007 4:13pm
Harriet Miers' Law Partner:
Couple of loosely-connected thoughts:

I, for one, don't understand the draw of the JD/PhD "interdisciplinary scholars". For one, most, if not all, have never practiced a single day in their life -- nor can they, since many never take a bar exam. The purpose of law school is train lawyers. A PhD who's never practiced simply isn't that good in the classroom for demonstrating the practical application of the material to reality or for exciting students to possibilities that practice presents.

I've also never understood the knock against treatise writers in the academy. In the real world, treatise writers have tremendous influence, especially those that focus on state procedure or state/regional specialities, like oil &gas, water, etc. If a scholar wants to affect the law, he ought to write a good treatise because it's the first thing lawyers AND judges (at least those that still bother to crack a book not brought to them by a clerk) turn to.

Thanks for the use of the hall.
5.24.2007 4:23pm
lawyer (mail):
I hope my concerns are misfounded, but if ever-higher percentages of tenure track hires are from about six schools, and if their career goals are to move laterally as quickly, as often, and as vertically as the market will allow, what will this mean for the relationship between those faculty and their students at 2nd-4th tier law schools?
5.25.2007 11:11pm