Wednesday, August 6, 2008

Gillette on Law School Faculty as Free Agents

Gillette Clayton Gillette (NYU) has posted on SSRN his piece in the Journal of Contemporary Legal Issues: Law School Faculty as Free Agents.

Here is the abstract:    

The phenomenon of law professors changing jobs from one law school faculty to another - faculty free agency - has increased in recent years and appears to be part of a general phenomenon of increased mobility across academia. In this paper, I consider the consequences of free agency in law school markets. It is likely that law professors have benefited financially from free agency. Whether it has benefited law schools generally, or advanced the quality of legal education is another matter. The paper raises some issues that at least give reason for pause about free agency. The consequences of free agency have been similarly questioned in other industries, most notably professional sports. But studies suggest that the adverse effects that some predicted when free agency was officially instituted there have not materialized. Thus, in the absence of similar studies about academic free agents, one might claim that my concerns are overstated. But those studies are often most interesting because they focus on characteristics of professional sports that have little or no analogue in faculty markets. The market for professional sports differs from the academic market in ways that I suggest have significant effects on free agency. Academic free agency may have different, and more negative, impact in academia. To the extent that is true, law schools face a classic prisoners' dilemma in adjusting. Even if it would benefit legal education generally to constrain free agency, it is contrary to the interests of any law school to constrain itself unless competitors do the same. I conclude, therefore, with some practical ideas about how to address the negative effects of free agency.

I have written about the law professor lateral market in Tales of a Law Professor Lateral Nothing.  But that piece was more of an examination of what it takes to be a lateral and how the process works.  This piece, on the other hand, asks whether all this lateraling is beneficial.

I have to admit that I am skeptical that law professor free agency is a bad thing and may have a negative impact in academia, being a recent free agent myself.  But I look forward to reading this paper to gather more insights on what the detriment could to be to law schools and faculty who engage in lateral hiring.


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I haven't read the paper (although I should -- aside from the interesting topic, Clayton Gillette was my torts prof. in, gulp, the fall of 1983). And I'm certainly not opposed to increased mobility options for any type of worker/employee.

But isn't one obvious downside to mobility that, in this biz, one's mobility is at least primarily based on one's publishing, and thus the incentives to work at teaching and service are diminished if one is trying to move?

Posted by: Joseph Slater | Aug 7, 2008 7:02:05 AM

Although you are right, Joe, that publishing is the key to being able to lateral, it is also very important to be the "complete" package when it comes to things like service and teaching. That is why appointment committees, as you know, ask to look at student teaching evaluations, CVs, and ask about the type and quality of service the faculty member has accomplished.

From my experience, I would say that none of the schools I interviewed with would be satisfied just with a productive writer. Students and colleagues demand more.

So I don't see the bad incentives you highlight. In fact, I think laterals tend to try to optimize in all areas.

Posted by: Paul | Aug 7, 2008 7:54:35 AM


I'm proud to say that my school really does value good teaching. But we may still disagree.

Let's take the three categories: publications, teaching, and service. Now let's imagine three Mystery Potential Laterals: A has excellent publications and average teaching and service records. B has excellent teaching evaluations (and maybe other indicia of excellent teaching), but average publications and service records. C has done excellent service, but the teaching and publications are average.

I'm betting A gets significantly more play than B or C in the lateral market. Do you disagree?

Posted by: Joseph Slater | Aug 8, 2008 11:45:35 AM

Joe, I think our disagreement is whether those who only have strengths in one of three areas are good lateral material. I'll let others judge my record, but my friends who have lateraled in the last 4 years or so have been strong in all three areas and that's why they are in demand. So, I just don't see this being an issue of mutual exclusivity.

Posted by: Paul | Aug 8, 2008 2:21:27 PM

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