Legal Commentary

For my sins, I have been appointed for the third straight year in a row to serve on NYU's appointments committee. After reflection, I have decided that the best way for me to avoid further assignments is to be so honest about my hiring priorities that I thereby shock my dean and colleagues into appointing some one more suitable for the job.

To use a metaphor, I think that our primary duty is to keep the law school amphibious. Law school faculty members can typically be arrayed along an axis of academic depth ("the water environment") versus practical groundedness ("the land environment"). Faculty members, therefore, tend to lean one way or the other: Some are ace lawyers (say, Georgetown's David Vladeck) who are most at home on the solid ground of the courtroom, and some are purely academic specialists in some non-legal discipline -- lungfishes, if you will -- who rarely clamber up on land even to write an amicus brief or comment on a case (say, NYU's own John Ferejohn or Tom Nagel or Chicago's Brian Leiter). The challenge is to hire a faculty that has a mix of really aquatic and terrestial creatures in which everyone is a bit of an amphibian, mutually intelligible to each other and capable of participating in the same workshops profitably.

Two years' of experience on the appointments committee here at NYU and two on Michigan's committee have taught me that this is harder than it sounds. There is always a risk that the swimming critters and the land critters will suspect that the other group has contempt for the other's ecology and, as a defensive reaction, nix each other's preferred candidates.

In theory, everyone should understand that candidates should be judged on a sliding scale: We should be able to hire non-JDs with outstanding non-legal academic credentials as well as outstanding practitioners who have never written a purely academic article in their life, just so long as both groups care about the law and can talk intelligently to each other. But I've had colleagues who would turn down Brandeis himself for lack of sufficiently theoretical writing as well as colleagues who would nix Socrates because he lost his only case in his sole courtroom appearance.

I do not know the trick to avoiding these sorts of fights. But I plan to reject the myths of both the die-hard fish and the confirmed terrestials. I do not believe that a candidate needs a JD to be a great member of a law faculty: In my view, the only legal "method" is (quoting T.S. Eliot's view of literary criticism) "to be very intelligent." (The JD-less Don Herzog of Michigan teaches a legally deep class on First Amendment law that covers more doctrine in greater depth than most JD-taught courses). And likewise I do not believe that one needs to have ever published a single "theoretical" article if one's practical experience is sufficiently deep and varied.

The important point is that each type of candidate have a temperament of respect for what the other group is doing. The practitioner who has spent years lobbying Congress or practicing in a courtroom cannot play the harrumphing Philistine, irritably denouncing (for instance) mathematical models of voting behavior in legislatures or on the bench as "over-simplified." (Of course such models are over-simplified as a descriptive matter: So are subway maps of NYC -- but they are still helpful if they are testably predictive of where one will end up). Instead, the practitioners ought to be inquisitive about methods that they do not understand, asking for "intuitive" explanations in plain English and discussing those explanations in the terms of the relevant discipline. Likewise, the aquatic life forms ought to be able to speak and write English and communicate their academic insights in language that an intelligent lawyer, judge, or law student can understand, and they ought to be asking questions about which such an audience could conceivably care. An exclusive focus on refinements in discipline-specific methodology is a great thing -- but not a great thing for a law school.

Within these parameters, I'll vote for anyone, with or without the requisite union card of a JD or Ph.D, with brains and knowledge. I do not know whether this hiring philosophy will be a success with my colleagues. If not, then at least I'll get the more than adequate compensation of not being appointed to the appointments committee again.