Monthly Archives: December 2009

I've been meaning to write about 'exploding offers' for some time; now it seems Dan Markel has beaten me to the punch – except that I disagree with much of what he's written. He starts by saying that,

I think “normal” is probably 2 months or more, but fwiw, I'm not sure “normal” is a good practice. … Indeed, I'm not sure all exploding offers are bad or “coercive,” especially if the candidate is told in advance of doing the interview that such is the practice of the school. The practice itself may not redound to the benefit of the school but barring unusual circumstances, it's not so manifestly unjust as to be condemnable outright.

Thus, Dan (and even more so some of his commentators) would be perfectly comfortable with a law school making an exploding offer (aka a “short string”) of a week or two. (Dan also proposes a something between musical chairs and piranah-style feeding frenzy in which prof wannabes compete to see who can be the first to grab a small number of slots, with the more deliberative getting no job. I can'tell if he's serious, so I'm going to ignore that part of his post.)

Not to put too fine a point on it, I think short-string, or quickly exploding, offers in law teaching are evil. And wrongheaded. And did I mention selfish and mean?

Some background for those not in the legal academy: Most entry-level hiring in law schools follows a fairly predictable course until the actual offer is made. In August candidates submit forms to the AALS that summarize their experience in an ugly and not terribly useful one-page form, and, increasingly, a fuller uploaded c.v. From these, hiring committees can request copies of writings and check out references. Having built their files, the hiring committees choose who to interview at the annual AALS 'meat market' in DC (formally, the AALS hiring conference). Most interviews, which last about 30 minutes, are arranged in advance. (Our committee sends two teams and sees about 50 of the 800-1000+ applicants.) Of the people interviewed in DC, only a fraction will be invited (at the law school's expense) for a interview day in which they will meet faculty, give a presentation, meet more faculty, have a dinner with more faculty. Of the people interviewed on campus, only a fraction – here numbers vary widely – will be extended an offer.

At the moment the offer is extended, the power relationship changes. Until that point, all the power has been in the law school's hands. Now some of it is in the applicant's: he or she can try to negotiate for a better deal in money, teaching or perks (although the ability of a school to deliver may be quite limited). And he or she can hold on to the offer and hope for a better one, however the applicant may define 'better'. The law school faces a particular problem – it has granted a lien on one of what is in most cases a very small supply of slots, and if its offer is held a long time then ultimately refused, the school may find itself in a disadvantageous position as its near-favorite choices may be committed elsewhere.

The problem is in part due to the wide variety of timing: While the AALS hiring conference happens at the same time for everyone, the flyback interviews and the extending of offers happens over a wide time period starting perhaps in late November and running to at least February and sometimes quite a bit later. What's more, reasons unknown to me, the most prestigious and wealthy schools tend to interview and make offers later; I've heard it suggested that they are free-riding on the work of others to figure out who the market considers desirable or playing strategic beggar-my-neighbor, but that seems harsh.

Thus, the “exploding offer”. Where once offers did not carry a deadline, in the past five, maybe ten, years an increasing number of schools – especially schools with relatively low rankings in the legal pecking order – have begun to give candidates offers that expire in 14 days, or 7 days, or even four days. And recently, I've heard of a new wrinkle: some schools are not only interviewing particularly promising candidates before the AALS hiring conference, but they are making offers that explode before the conference – thus requiring candidates to decide before they have any real sense of how the market at large will respond to what they are offering. I imagine the faculties that snag very risk-averse job candidates with this tactic to be chortling to themselves, but I wouldn't want to live there.

I think exploding offers/short strings are just wrong for two related sets of reasons. First, an offer to join a faculty isn't, or shouldn't be, simply an offer like any other job. When we make an offer to someone we're not just putting a warm body in a classroom, we're inviting them to join a community of scholars. We're hoping and expecting that they will become a part of our lively seminars. We want them as resources for our own work, and we look forward to their questions as we contribute to theirs. Teaching jobs are hard to come by. The pressure to take the bird in the hand will in many cases be intense. The idea that someone would be coerced into going to a place they would rather not be, while some other place was still getting its act together, makes sense if what we're engaged in is pure capitalism red in tooth and claw, but not if we're aiming for something a bit more collegial.

Second, entry-level scholars are on average older every year in part because we are favoring Ph.Ds and lawyers with teaching experience as Visiting Assistant Professors (VAPs) or post-JD writing fellowships. These not-so-junior scholars have complex lives as do their spouses or significant others; they have children who need schools – and in some cases may need special teachers or doctors; they have expectations about housing that cannot be tested against reality until they know about how much they will be paid, and what houses go for in the area they are suddenly going to find themselves. It is unrealistic to expect future colleagues to ask other important adults in their lives to make career choices in four or even in 14 days, and it is also unrealistic to expect spouses/others to send out job applications until they know for certain where they are trying to move to. Putting relationships through that vise is simply cruel.

I'm proud that the University of Miami School of Law does not do exploding offers, and didn't do it even in the years when we had very few slots to juggle. Yes, we got strung along a couple of times by people who left us at the last minute for somewhere else, and they made our lives more difficult than we would have liked. As a result, I would have no trouble with a reasonable time limit on job offers: say eight weeks, or maybe even six weeks so long as it was tolled for the holiday season, a time when many people plan to be with their extended families and which in any case is almost useless for job, school, and house hunting.

But “short strings” and “exploding offers” of a week, or even two, are a very lousy, selfish and short-sighted way of starting a relationship that just might last a lifetime.