Einer asks the question, why are the elite schools doing more lateral hiring now, especially of younger professors, than they used to? One possible explanation rests on two factual assumptions. First, that the credentials typically relied upon by elite schools for entry level appointments--e.g. elite law school diploma, stellar grades, law review, Supreme Court clerkship, job with top law firm--simply did not reliably enough produce superstar legal scholars. Second, that the unwillingness of elite law schools to deny tenure to anyone who was able to publish one or two massive "tenure pieces" prevented elite law schools from weeding out the nonproducers. As a result, elite law schools were stuck for life with lots of former-superstar law students who underperformed as legal scholars. The solution to this situation has been obvious for some time: let other law schools assume the risks of entry level hiring, while the elite law schools skim the cream by hiring laterally those who prove themselves to be great scholars. In other words, if the elite law schools could not use the probationary period of pre-tenure to weed out those who were not going to be successful, then it is prudent to let other schools take the chances.

The problem with implementing this strategy was that, to become a great scholar, one had to say something in print--usually a sustained something--and that something was likely to annoy one or another faction of the faculty at the elite school, who would then block the appointment. Far easier it was for elite faculties to agree to to hire entry-level candidates with little or no scholarly track record but lots of "promise." This is why, in Harvard's case, Elena Kagan's deanship has been so important: she has been able to break the "collective action" logjam at the faculty level and thereby allowed Harvard to pursue its true self interest in the lateral market--as Yale, NYU and others have been doing for considerably longer. In Yale's case this began in earnest with Guido Calabresi's deanship and at NYU with John Sexton's. If the numbers of lateral appointments are increasing beyond the huge numbers of appointments made recently by Harvard, it may be because this strategy is proving over time to be successful for the elite schools.

Undoubtedly, there is more to the story--like the fact that because more and more law schools at all levels are hiring entry levels for their scholarly promise, there are more prospective lateral candidates at less prestigious schools to be cherry-picked by the elite--but this seems like at least part of it.