Do Law Faculties Need to Cover the Range of Fields in Scholarship or Only in Teaching?

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Posted in: Education

Law schools have been dealing with a difficult economic environment for almost a decade, recovering excruciatingly slowly from the Great Recession and its severe effects on our enrollments. Happily, there is growing evidence that this at long last is in the process of turning around—possibly meriting a very backhanded thank-you to Donald Trump.

Politics aside, however, the decline in potential students’ interest in attending law school inevitably led to a marked decline in law faculty hiring. Yet even in that notably weak economic environment, law schools have continued to hire some entry-level faculty every year—fewer than before, but a number well above zero. The lateral hiring market also slowed but did not come to a halt.

One of the consequences of a weak hiring market is that the law professors who are asked to vote to make offers to potential new colleagues understand that the stakes for every hiring situation are higher than ever. Whereas it used to be true that each new hire was one of many, now even at the most elite schools professors have good reason to view every hire as at best zero-sum.

This means that a law school that might have, for example, “balanced” its hiring of a new theorist by hiring a new empiricist (and maybe another former litigator) is more likely to have to make a choice to hire only one among competing priorities. Not only is balanced hiring now unlikely in a single year, but it is even difficult to pull off over the space of a few years.

This more challenging situation raises a host of issues that professors and deans discuss with some regularity. Here, I am interested in the question of whether law schools should commit themselves to maintaining a faculty whose scholarship covers the full range of intellectual areas that are typically part of the law school curriculum.

This question can be applied to any area of law: Does it matter whether a law school has no one on its faculty who writes about criminal law? Or human rights law? Or legal history? Answering that question is surprisingly challenging.

Slot Hires and Best Athletes: The Timeless Debate

Even in the best of economic circumstances, law faculties have long had intramural battles over the question of whether to hire new colleagues to fill a “slot” such as labor law or instead to look for colleagues based on some conception of pure merit. Because law professors are self-conscious about our nerdiness, we overcompensate by referring to the latter as hiring the “best athlete available.”

It is not my intention here to revisit the debate over whether pure merit exists or can be measured. Although I have my doubts (based in large part on the gendered and race-based assumptions that continue to lurk in too many people’s unconscious measures of merit), I will accept for now that there are situations in which we could usefully compare candidates for faculty positions on the basis of being objectively better or worse regardless of field.

I will also not argue in favor of slot hiring over best-athlete hiring, at least not in the standard sense. What I do want to think through is the question of whether the decision to hire on the basis of field means only that a faculty should look for someone who can teach courses in the targeted field or whether it must also require concomitant scholarly commitments.

This might seem a bit odd, because one might imagine that a person who writes in a field would necessarily also teach in that field and vice versa. International law scholars teach international law classes. Civil rights scholars teach civil rights classes. Etc.

Yet law continues to be a discipline in which people are taught to be able to engage with interesting questions that are not in their fields. By contrast to most arts and science departments, it is easy to imagine a law professor teaching courses that are clearly outside of her scholarly interests. For example, whereas it would be truly odd for an economist who specializes in corporate finance to teach a course in poverty and development, it would raise few eyebrows if a copyright law specialist were to teach torts or even antitrust.

Indeed, entry-level candidates for law positions are advised to say that they could teach nearly anything at all, excluding only those fields that are completely implausible. A new professor who specializes in environmental law might be asked to teach two environmental classes and one first-year class; being willing to teach contracts or property could catch a hiring committee’s collective eye.

But such teaching flexibility raises an unexpected set of additional issues. If everyone can teach almost everything, does it matter whether we hire people based on what they are best able to teach? More to my point here, does it matter what they write?

The Scholarship Versus Teaching Question

Suppose that a dean has announced that her law school is going to hire a new faculty member in the coming year, and she instructs the appointments committee to hire in a specific field. Imagine that the targeted area is family law.

My impression is that most deans who announce slot hires tend to do so by pointing to “curricular needs,” which generally means “a field in which we have no one currently willing and able to teach the courses.” Does that mean that teaching is the only issue about which such a dean should care?

More specifically, does that mean that the candidates for that position merely have to be willing and able to teach family law courses, or does it mean that a hiring season is successful only if it results in hiring a person whose scholarship also engages with family law?

In the extreme, after all, it would be possible to go beyond the standard model in which we hire a new professor and tell her that one of her courses will be outside of the field in which she writes, saying instead, “We’ll hire you if you’ll teach property law, corporate tax, and employment discrimination; and you should keep writing those great feminist legal theory articles that have impressed us so much.”

But it need not go that far. Given that some individual faculty members strongly believe that all hiring should be on a best-athlete basis, it is possible for them (even when they have lost the debate about whether to hire by slot) to get a second bite at the apple by saying, “Well, all we need to do is find someone to teach those courses. The dean didn’t say we have to limit ourselves to family law scholars.”

I was confronted with one particularly aggressive version of that argument at an earlier point in my career, when the dean at a school at which I was teaching announced that we would be hiring “in tax.” During the hiring process, I objected to various possible candidates as not being genuine tax scholars, to which one colleague replied (and I remember this essentially verbatim, because it was so blunt):

Look, I don’t think we should make slot hires at all, but we’ve been told to look for tax people. I don’t know exactly what a tax person is, but I know it’s not someone we’re hiring just so Neil has someone to talk to.

Leaving aside the snark, this comment crystalized the issue of whether the school should be hiring a tax teacher and scholar or should merely be hiring a scholar in any field who could adequately cover tax courses. Whether tax scholars who were already on the faculty thought of the new hire as a “tax person” would be irrelevant.

Imagine, however, that I am on a law faculty whose dean announces that we are slot-hiring in constitutional law. If we are only looking to cover some con law courses, what might happen?

For one thing, I could announce that I was willing to teach the necessary con law classes rather than my current tax classes. This would then turn the slot hire from a con law search into a tax search, because we would need to find someone to teach the classes that I abandoned.

And that offer would not be merely opportunistic on my part, because it would not only be minimally defensible based on my having gone to law school and thus being able to—“in a pinch,” as we always say during job interviews—teach across the curriculum. As it happens, I would even be able to argue that I am already a con law scholar.

Anyone who knows me would say, “Wait, Neil, you’re not a con law guy. You’re a tax guy. It’s nice of you to try to pitch in, but don’t pretend to be what you’re not.” The fact is, however, that five of my most recent scholarly articles engaged heavily with both constitutional and tax policy issues. It is true that I co-authored those articles with Michael Dorf, a constitutionalist at Cornell Law School, but our collaboration was not a matter of “Mike writes the con law stuff, and Neil writes the tax policy stuff.” We both contributed ideas in both areas on what amounted effectively to a fifty-fifty basis.

This, of course, means not only that I could claim to be qualified to teach con law classes but that Professor Dorf is now a tax policy guy. But the larger point here is that even stopping short of “I don’t care what they write about, so long as they can teach the needed classes” and instead requiring some level of engagement with scholarship in the relevant teaching field can still lead to unexpected results—and colleagues who have no one to talk to.

What Are We Trying to Accomplish?

Such results might be unexpected, but are they absurd? That is, does it matter whether X Law School hires me to teach con law classes and makes similarly mismatched hires in a way that covers all of the classes that students should take but that leaves fields uncovered by the faculty’s scholarship? I think it does matter.

After all, even though I have written in the field of constitutional law, I might not continue to do so. And even if I do, I suspect that I will never become known as a con law scholar, partly because of reputational inertia and partly because my engagement with constitutional issues is driven by ad hoc policy questions rather than by a commitment to advancing the field of constitutional law.

This is all the more likely if a faculty does not require even a remote connection between a professor’s scholarship and teaching commitments. Even though constitutional law is in some sense the core subject in law school, one could imagine a faculty with no con law scholars at all but that nonetheless covers all of the courses that accreditation requires and that good pedagogy demands.

Would that be bad? A few years ago, I wrote a column in which I explored whether a law school needs to be equally strong across all of the major fields of law, or whether it would be better to strengthen some fields while allowing others to drop to some minimally acceptable level.

The assumption in that column, however, was that even a law school that decides to shrink some fields in order to expand others would at least maintain the minimal level of acceptable coverage in each field by hiring scholar/teachers in those fields.

What would be wrong with, say, covering all tax courses with scholars from other fields? It might seem that the students would not care, so long as the courses are taught, but such an assumption ignores the importance of having faculty who can advise students who want to specialize in a field. Returning to my situation above, I am competent to advise students about tax law, but I would be pretty useless to advise them about constitutional law. Students need more than classroom teaching from their professors.

Students and professors also benefit from a feedback loop, in which a professor’s scholarship is enhanced by teaching, with students’ discussions and the professors’ preparation of materials (even repetitive preparation year after year) leading to new scholarly ideas, and with the professors’ writing in turn improving the classroom experience. A professor who is not engaged with the subject matter both inside and outside the classroom is less effective in both realms.

The more powerful objection, however, is also somehow less specific. If I were running a law school, I would find it unacceptable if we were not offering courses in all of the expected fields, but I would also be concerned if I did not have scholars in all of those fields on my faculty. “Your law school has no intellectual property scholars” would understandably be taken not as a mere description but as incredulous criticism.

And the criticism would be legitimate. The stakeholders in a law school have good reasons to expect that a legitimate school will not have holes in its intellectual coverage. If a law school is going to hold itself out as a plausible competitor with other law schools, not having, say, any business law scholars would make it difficult to do so with a straight face.

If a law school is committed to covering specific courses, it should also be committed to hiring faculty with deep scholarly expertise in those subject matters. Whether or not some courses are covered by others, it still matters that law schools employ faculty who cover the full range of scholarship.

In short, unless a law school already has a full complement of professors covering all relevant fields, every hire should be a slot hire—and every slot hire should be filled by a teacher/scholar in the targeted field. And that is true no matter whether the economic environment is weak or strong.