A Nice Place to Live, But You Wouldn't Want to Visit

by Michael C. Dorf

Yesterday, U Penn Law Professor Tess Wilkinson-Ryan published a courageous essay in which she  describes her experience as a visiting professor at Stanford, Harvard, and NYU. She went to each school (for varying lengths of time) in the hope of landing a lateral offer, only to be rejected. The essay is courageous because it tells a personal story of failure. It is very valuable, because it exposes various dysfunctions of the visit-before-you-get-hired system, including the important ways in which it is gendered. Prof Wilkinson-Ryan explains both the obvious way--women tend to have more family obligations and partners who have more difficulty relocating for 4 to 8 months--and the less obvious way--the performance expectations for female faculty are different in a way that recalls the familiar double-bind women face in various workplaces: come on too strong and you're not sufficiently female; otherwise, be seen as not sufficiently rigorous and smart.

Accordingly, I highly recommend Prof Wilkinson-Ryan's essay. It speaks to a particular problem in legal academia and some other academic disciplines but also to a wide variety of human experience, both in the workplace and beyond. Here I want to add three complementary thoughts.

(1) Let's begin by asking what purpose a visit serves. There is no "official" answer to that question, but based on my nearly three decades as a legal academic at three law schools, including numerous stints on and chairing appointments committees, I think I have a pretty good sense of what a visit is supposed to do. I'll explain the idea briefly for the benefit of readers who are not familiar with the practice.

Law school faculties hire tenured and tenure-track faculty from two sources: Entry-level faculty apply, typically through the Association of American Law Schools clearinghouse, which coordinates written material and provides opportunities for half-hour screening interviews at an annual autumn conference in Washington, DC. (There are plans afoot to facilitate more remote audiovideo interviews as well.) It was once common for entry-level candidates to have a very thin paper record. Typically, they had written a student Note (short article) for the law review and would have a draft of an article or even just an idea for one. Entry-level candidates thus had high variance, because the coin of the realm is scholarship, and the best predictor of future scholarship is past scholarship. Accordingly, up until about 20-30 years ago, law school entry-level hiring skewed towards former star students. Many of them turned into first-rate scholars, but a fair number did not.

Given the risk that entry-level hires posed, many law schools--especially well-regarded law schools--substantially supplemented their hiring with laterals, i.e., faculty at other law schools who became targets of recruitment. A successful career path might involve one or more lateral moves. For an extreme example, consider Massachusetts Senator and current Democratic Presidential candidate Elizabeth Warren. She began her career as a law professor at Rutgers-Newark, then moved to the University of Houston, where she received tenure, then moved to the University of Texas, then to the University of Pennsylvania, and then to Harvard. In between, she also visited at the University of Michigan. That's a lot of moves, but I know of faculty who have moved even more often.

These days, entry-level faculty typically have a substantial body of work that they developed either in Ph D programs, as post-JD/typically post-clerkship teaching fellows, or both. Accordingly, entry-level hiring is now less risky than it was three decades ago. But there remain reasons why even faculties that hire good entry-levels will want to hire laterals as well. The most obvious is that often a scholar over-performs initial expectations. Warren might be a good example here. As her career developed, it became evident that she was a "star," and so schools with more money and prestige came calling.

The rationale for lateral hiring is obvious enough, but why require visits? My sense is that a visit is typically conceptualized as a kind of substitute for having the lateral candidates on campus during the pre-tenure phases of their career. If a law school hires Jane Brown as an entry-level, by the time she comes up for tenure five or so years later, the faculty will know her very well. They will have not only read Brown's work in draft, they'll have seen her service to the school on committees, and have a good sense of her teaching. A semester-long or year-long visit provides an opportunity for the hiring faculty to get to know the prospective hire in a way that approximates how they know their junior colleagues when deciding on internal tenure. Meanwhile, of course, the visitor can also get a sense of the institution to which she is considering moving. Maybe she'll discover that she doesn't want to move after all.

Of course, as Prof Wilkinson-Ryan observers, visits have substantial costs, especially for visitors with family. Lateral moves can occur at various points in a career, but they tend to be concentrated on faculty who are just about to receive or have recently received tenure. The result is that potential visitors often have partners and young children. The personal cost is high. But as Prof Wilkinson-Ryan explains, even for faculty without family attachments, a visit is a stressful proposition, not least because visitors must be on their best behavior for months at a time.

(2) Do the benefits of visits outweigh the costs? Not even close, because, in my view, there are no benefits from the perspective of the hiring school. As I summarized in a Twitter comment on Prof Wilkinson-Ryan's tweet of her essay, there is a fairly robust body of data indicating that institutions make worse personnel decisions when they supplement the paper record with interviews and other personal interactions. For an engaging and accessible popularization of that body of data, I recommend that readers check out Malcolm Gladwell's latest book--Talking to Strangers. In typical Gladwellian fashion, there may be some over-claiming and over-simplification in the book, but its summary of the personnel data is broadly accurate. Human beings are not at all good at evaluating people in interview settings--and a visit is an extended interview.

Wait. Did I just pull a fast one? Gladwell makes the point that humans are not good at evaluating strangers. The point of a visit is precisely to escape that problem, though, right? By the time a lateral candidate has visited, she's no longer a stranger, right?

Wrong. Remember how I said a few paragraphs up that it's stressful to be on your best behavior for months at a time. So it is. But it's also true that visitors are on their best behavior during the course of a visit. If the point of a visit is to be able to distinguish those potential colleagues who only seem smart and personable from those who really are smart and personable, it will typically fail. I know of multiple faculty members at law schools around the country who are, to put it delicately, not team players, who nonetheless managed to put on a good show during a visit. I know of only one case of someone being such an incredible asshole that he (and it was a he) could not hide his assholery for the course of a visit, thus costing himself an offer.

Law schools tenure based on three criteria, in descending order of importance: (1) scholarship; (2) teaching; and (3) service (on committees and informally by commenting on colleagues' drafts, attending workshops, etc.). I have just explained why the visit, which is thought to provide some information on the least important of those criteria, doesn't even do that. Meanwhile, an extended visit provides no additional data on the two most important factors. The hiring faculty can read the scholarship as well as student evaluations from the school at which the potential hire currently teaches (as well as any prior schools). Indeed, by smoothing over the idiosyncrasies of any particular class, multiple years of evaluations will be more useful than a single year or semester during the visit. To be sure, there are serious problems with student evaluations--and these problems have a gendered and racial component--but insofar as the goal of the visit is to have "our students" rather than "their students" provide feedback, there's no advantage.

(3) Finally, there is a bait-and-switch element to the way in which many law schools conduct visits that tends to add insult to injury. Targets of visiting offers will think--and will sometimes be told by the dean or the appointments chair of the school offering the visit--that the faculty at that school think well of their scholarship and that the point of the visit will be to evaluate their personal qualities and teaching. When a permanent lateral offer is not thereafter forthcoming, the target will understandably conclude that it was the result of some personal failing. "Huh," she might think. "It sure seemed like people thought I was smart and genial, but I guess they were just pretending. They must think I'm actually a dope or a jerk."

In fact, however, in my experience with multiple law schools, visiting offers rarely reflect the sort of thought that ought to go into such a potentially life-disruptive event for the potential visitor. A visiting offer could be the result of some internal disagreement among faculty, with some favoring a day of interviews followed by a permanent lateral offer, while others opposing a lateral offer; the resulting visiting offer may be a compromise on the ground that "it's only a visit;" yet the tepidness of support is rarely communicated to the person to whom the visiting offer is made.

Even if there is not pre-existing opposition, faculties rarely give the same kind of scrutiny to potential visitors that they do to permanent lateral hires or even entry-level hires. Members of the appointments committee will have read a good deal of the candidate's work and been impressed, but even when the appointments committee broadly represents the faculty, the full faculty will often have so many idiosyncratic views and tastes that they could ultimately take a different view. Or they could make decisions based on criteria wholly unrelated to the candidate. For example, a faculty member might vote against appointing a highly qualified lateral who works in a methodology that she does not value or might vote no because she thinks higher priority should be placed on some curricular need that the visitor does not fill.

While the ostensible purpose of the visit is to get an overall sense of the visitor beyond the paper record, negative decisions can be based on any number of other factors, from a belated lukewarm evaluation of the scholarship to an intra-faculty disagreement that renders the visitor a kind of collateral damage. But whatever the real reason, the visitor will feel rejected in a way that inevitably feels personal.

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Although Prof Wilkinson-Ryan does not include any reform proposals in her essay, I have reason to think she would likely join me in the following proposal, which, in any event, I make at least on my own behalf: Law schools should abandon the semester-long or year-long visit as a part of the lateral hiring process. That would leave three kinds of visits: (1) Enrichment visits bring interesting faculty to a school for a semester or longer simply because they will enrich the atmosphere for students and faculty, with no expectation that the visitor will stay permanently; (2) podium visitors fill short-term teaching needs, again with no expectation of a permanent lateral offer; and (3) reverse "look-see" visits allow a person who holds a lateral offer to decide whether to accept it by spending a semester or year at the new school first.