I don’t really have any advice about the law school hiring process, primarily because I do not think I’ve been around long enough to have accumulated advice. I did just go through the process and have been malingering around law schools for the past few years in temporary roles, and I do have a few observations that may be peculiar to me and my experience, or perhaps others have noted exactly the same phenomena, in which case I’ll just be restating the obvious and adding nothing new.
Here’s my first observation: it is not advisable to be deemed “theoretical,” and it’s certainly no good when one is deemed too “theoretical.” I’m not exactly certain what is meant by “theoretical,” other than a pejorative judgment. Possible and non-exclusive meanings may be impractical, insufficiently attuned to the urgencies of the quotidian, disconnected with students’ concerns, inadequately grounded in legal doctrine, abstruse, contemplative to the point of paralysis (think Justice Tatting in The Speluncean Explorers), and directed at too narrow and specialized an audience — one which commands more attention than it, at all events, merits. Surely there are many others. But whatever “theoretical” is, it seems to generate the uncontrollable urge to roll back one’s eyes in ennui. So for job candidates, it’s best avoided.
The difficult part is that I’m at something of a loss for how to avoid it. Sure, there are the tell-tale signs: Ph.D.s in non-legal disciplines do nothing to allay “theoretical” suspicion. But it’s been my experience that one doesn’t need to have a Ph.D. in order to receive the troublesome label. It may be the subjects that one chooses to write about, one’s writing style, one’s speaking style, one’s thinking style, the things one likes to talk about over dinner, the books one has up on one’s shelf, one’s background, one’s taste in cognac, and so on. It’s hard to know how the designation is conferred, but once conferred, it’s quite difficult to shake. And if one is “too” theoretical, that may well be taken as a disqualifying mark.
Now, as I said, these observations are particular to me and I do not purport to offer them as “advice.” And there are likely as many opinions about the desirability of the “theoretical” candidate as there are meanings of the term itself.
Posted by Marc DeGirolami on May 7, 2009 at 08:54 PM
Comments
I don’t think I can answer those questions “as a general matter,” except to say this: it doesn’t, ultimately, work very well to try to impersonate the scholar one thinks one’s potential colleagues would prefer one to be. (If it got one the job, one would end up being pretty unhappy trying to maintain the pretense over several years, but, in fact, it almost never gets one the job.) I’m a firm believer in writing the papers you want to write, but you need to recognize that different topics will demand different degrees of expertise. If you want to introduce a new theoretical framework for thinking about everything, you need to be familiar with earlier efforts. If you happen to be writing about religious liberty for green vegetables, you can probably stuff all the earlier efforts there have ever been in a small thimble. Don’t claim more for yourself than you’re in a position to pull off.
Posted by: Jessica Litman | May 8, 2009 3:52:44 PM
Thanks, Professor Litman, for both points. I’ve got a quick follow up question to your second point. If it’s true that, in the main, candidates are unlikely to be as familiar with the theoretical scholarship as their more senior (potential) colleagues, how would you advise a candidate to negotiate the balance between the theoretical and the practical, in the job talk but also in interviews and other job hiring interactions? Would you say that it is not only safer, but also otherwise wiser, for the candidate (again, as a general matter) to tackle a narrow theoretical point and concentrate on thinking through the practical? So perhaps offer a less ambitious project, ‘theoretically’ speaking? And if you would suggest something like this, do you think that there are dangers of appearing too narrow, not rangy enough in one’s intellectual approach, not enough an intellectual? [This is more than one question!].
Posted by: Marc DeGirolami | May 8, 2009 10:39:44 AM
Two observations: first, we’re lawyers. Even at our most theoretical, we’re interested in practical applications. The least successful job talks I’ve heard are ones in which the candidate hasn’t thought through the practical implications of her or his argument, and gets tripped up when asked a simple practical or applied-theory question. Second, theoretical legal scholarship is hard to do well without being familiar with the theoretical literature that has preceded one, and reading all of that stuff takes time. If one is an entry-level or junior candidate, one probably hasn’t read everything one needs to have read before one can credibly deliver a theoretical paper in front of an audience filled with people, many of whom know (and some whom may have written) relevant but not recent theoretical scholarship that one’s paper needs to grapple with. As a young scholar, you may not know what’s in the stuff you haven’t read yet, but other people in the room do.
Posted by: Jessica Litman | May 8, 2009 10:25:04 AM
Marc – You’re right on your second point, which I meant to make in my earlier post. A lot of senior faculty see right through the bad theory, but many junior faculty lap it up, leading to some very interesting hiring meetings. We don’t have anything against theory, we just don’t like bad theory that has no connection whatsoever to the mission of a law school. Good theory that can help in the development of the law is good stuff. But theory for the sake of trying to satisfy the blogosphere’s thirst for theory is not.
Posted by: Former Hiring Chair | May 8, 2009 9:46:23 AM
Former Hiring Chair, thanks. I think what you say is very sensible. Part of the difficulty is the somewhat conflicting signals about scholarship within the academy itself. The overarching problem is the nature of what it is that the legal academy wants its scholarship — and so its scholars — to be. Here there are wide differences of opinion. One point is the one that you raise — that high theory only is successful by someone who has adequate training, however “adequate” is assessed, and that it takes time and marination in the techniques and arguments of high theory to ‘do’ high theory properly. But a second point is that high theory is not as universally valued as some candidates might think (or, at least, as I had thought). Maybe it makes sense to apprise job candidates that there are different strokes for different folks, so far as one scholarship is concerned.
Posted by: Marc DeGirolami | May 8, 2009 9:34:10 AM
Plugging away, thanks for your comment. It may well be that there is some type of shimmering, I-know-it-when-I-see-it equilibrium between “practical” and “theoretical” that the job candidate is well-advised to strike — a kind of golden mean that will vary, perhaps, from school to school (making it very difficult to attain). Veer too far away from the golden mean, in either direction, and you raise suspicion. I think an aesthetic metaphor may be the best that one can do here — maybe the opera singer, whose perfect balance of the tension between technical control and raw emotional power makes the performance beautiful. Just think of yourself as a great opera diva at that next interview!
Posted by: Marc DeGirolami | May 8, 2009 9:15:16 AM
Marc – I don’t think that “too theoretical” is the problem. The problem is that lots of entry-level candidates have been given terrible advice regarding scholarship. Back in the old days, entry-level candidates were told to write their first article about something that they ran across in practice. That worked reasonably well, because they could try and take an academic approach to something with which they were familiar. Today, they are warned away from being “too practical” and as a result write a lot of bad theory relating to topics about which they know very little. It’s pretty hard to write high property theory if you have never taught a property course. The fact that law school is a professional school and we are preparing students to become members of a profession is lost on too many people who would really prefer to be philosophy professors if philosophy professors were paid more.
Posted by: Former Hiring Chair | May 8, 2009 9:14:45 AM
I have found that being too “practical” can also have its drawbacks. Believing that most judicial opinions are practical and have little to no theoretical implications, and discussing areas of law in the simple terms in which they are practiced seems to suck the life right out of an interview. I need to learn much bigger words to make my practical take on the law sound much more theoretical. Or perhaps I will just keep plugging away until I can convince some law school that having a practical professor can be a good thing.
Posted by: plugging away | May 8, 2009 8:58:45 AM
I’ll add that I hope that my digression into my dislike of protectionist elements in the TRIPS agreement won’t prevent people with useful knowledge on the subject of the post from contributing. I, and I’m sure others, would be quite interested in hearing what people have to say on this subject.
Posted by: Matt | May 8, 2009 7:25:27 AM
Well, according to rules adopted by the US and other WTO members when they agreed to the TRIPS agreement, certain product designation of origin rules restrict the use of the term “cognac” to grape brandy made in a certain way to products from Cognac, France. Non WTO members, like Armenia and Russia, sensibly don’t let this silly protectionist rule get in their way, since there’s no significant difference between the French stuff and the Armenian stuff. (And the Armenian stuff is better than much of the French stuff!) It’s similar to the rules on Campagne. Before the formation of the WTO the US didn’t feel bound by the French law, of course, so lots of things that can’t be called “cognac” or “campagne” now were so called. France had already pushed this through in the EU and did the same in the TRIPS agreement that was part of the early formation of the WTO. Several other countries do the same. (Canadian Bacon is another, despite the fact that the term isn’t even used in Canada.) It’s trivial, perhaps, but also a silly sort of protectionism. I don’t know if anything was bargained for on it in the negotiations, but in general I think such rules are silly at best and harmful in many cases. (Depending on where you buy it, Armenian cognac will sometimes say “brandy” in English and “cognac” [transliterated] in Cyrillic letters.) So- both interesting practical and theoretical issues related to cognac, I think. (I can see how others might not find them interesting, though!)
Posted by: Matt | May 7, 2009 11:20:10 PM
Cognac cognate — that’s fun. I thought to be cognac it had to be from Cognac?
Posted by: Marc DeGirolami | May 7, 2009 10:40:02 PM
one’s taste in cognac, and so on.
Well, the cognac I like the most (Ararat 5 year old) can’t call itself cognac in the US anymore, though it’s called that, or a cognate, in it’s home country (Armenia) and the country where it’s most drunk (Russia), the reason being related to one of the areas of law I’m interested in, and it seems to me both an interesting theoretical and practical matter. I hope this won’t be what keeps me from finding a job in the end, though!
Posted by: Matt | May 7, 2009 9:51:53 PM