Yet, the judgment I speak of is not of a simple objective sort. Rather, our judgment is meant to be highly contextual—relating in large measure to who a faculty is and what a faculty has stated it wants to be. It ought not be center on whom the candidates are and what the faculty ought to expect from them at a minimum. The one thing faculties ought not do when considering a candidate is to decide on a hire on the basis of some causally falsely objective criteria—for example, all things being equal, would the person possibly succeed as a law professor somewhere. At bottom, a faculty, as a collegial body, must rely on the good faith judgments of its members (judgments that might be wrong in retrospect), but judgments made on the basis of appropriate factors fairly considered and consistently applied.
But context is a funny thing. Faculties sometimes say things they do not mean. Faculties mean things they do not say. Sometimes, and actually far more often than we care to admit, faculties speak out of several sides of their mouths. Faculties sometimes start a hiring process from the most theoretically and contextually pure of motives and out of desperation or changes of heart end a process through clumsy exercises in ‘realpolitik’ or making do. And sometimes, more often than we care to admit, candidates’ fortunes rise ort fall with the collection of alternative invitations they obtain (and are wise enogh to communicate).
Many faculty, for example, are quick to declare that they have embarked on one or another great project of moving their institution into the top ranks of the legal academy. Sometimes, this great project is officially endorsed on web sites or a law school’s various marketing vehicles. Often, however, these expressions are meant for purposes other than that for which they are expressed. As a consequence, the hiring process devolves into a process of carefully preserving the forms but not the substance of such mandates. It is difficult for faculties to avoid lip service mandates.
Suppose, however, that a faculty meant what it said about a commitment to moving their institution into the top ranks of the legal academy, as such movements are conventionally measured. For this exercise let us assume away the usual caveats of such endeavors—that such movements cannot be measured with any assurance; that such movement is inherently subjective, involving as much aggregate reputation as achievement of any measurable objectives; that measurements in any case, are always geared to confirm the position of certain institutions at the top of the reputation pecking order (a carefully designed reverse engineered system of objective measures, which take as their ideal the characteristics of institutions that must be ranked at the top of the scale can produce such results consistently over the years); that such measures are shooting at a moving target, etc. In those circumstances, what is the basis for making conventional judgments about the suitability of a candidate for a position at a law school with such an ambition (that is the ambition to move into the top ranks of the academic rankings)?
I would posit that approaches to legal research have now developed into at least three clear levels or approaches. I suspect that a faculty’s emphasis on a particular level of analysis, at an aggregate level, may have an impact on the reputation of that faculty as a whole. I would further posit, that in the current state of American law schools, such a candidate might have to demonstrate performance at what I might call a third level of analysis in her research and approaches to the study of law. I make no judgment about the value of suitability of these levels or approaches to law and legal study. Indeed, there may be a good case made for inverting the reputation order of scholarship. But I am calling it as I see it. Where it goes requires aggregate behavior and preferences changes beyond my abilities to influence to any substantial degree.
Performance of even entry level candidates at a level suitable to the top ranks of the legal academy (judged on a global, rather than on a parochial, basis) requires more than a mere facility with law at what I consider a first level of analysis. First level analysis consists of the identification of an interesting legal problem arising from deficiencies in statutes or case law or as a result of changes in patterns of behavior or technology, examine the character of the problem and propose an approach to its solution through changes (usually legislative) in behavior. This is the sort of reasoning one tends to see very often, but is also the type of effort that tends to be weeded out in many of the top global peer reviewed journals. But, of course, not always. It is the sort of approaches to the study of the law critical to the functioning of bench and bar on an everyday level; the sort of scholarship that was once highly prized at all levels. Applying social class analysis by analogy, one might look on this as the sort of working class level of law studies; it is essential for the functioning of the social order, but the sort of class from which conventionally ambitious parents might want their children to escape.
Nor are performance expectations at the highest levels satisfied, in my judgment, with the less common second level of analysis. Second level analysis consists ordinarily of an identification of a general policy framework within which an interesting legal issue might arise, and an engagement of policy or broader analysis, sometimes at least recently, accompanies by a rudimentary comparative analysis of some sort (for example, it was common to engage in simple legal/cultural analysis in transnational legal issues affecting East Asia, especially in the 1990s). From my perspective, this is the sort of analysis one tends to see more commonly in the so-called “better student edited journals” (but not always). This is today’s “meat and potatoes” scholarship. It invariably tends to provide the foundation of good regional programs, for example those developed at many state or state supported institutions (whose excess reputation might then be attributable to other factors—in state tuition differentials, proximity of better reputed competitor institutions, perceptions of the “market” etc.). Applying social class analysis by analogy, this second level tends to consist of the middle class, the good burghers, the great guardians of the institution and institutional norms. This is the comfortable sponge of the profession, absorbing the products from other classes but trying to remain true to its good old fashioned values.
Critical for sustained performance at the level conventionally expected at the top of the institutionalized profession is a clear and not incidental evidence of a facility with what I term third level analysis. Third level analysis consists of strong evidence of broader theoretical implications of analysis, an understanding of the principles or foundations within which the problem is grounded, possibilities for interrogating that grounding, and an engagement with those broader and deeper themes, both in connection with the specific issue examined and its spillover effects. This is the sort of “deep command of the problem” work that provides broad perspective, deep insight, and application to specific issues (again, though not always). It suggests knowledge of the connection between the specific and the general, the surface and the foundation, in a thoughtful way. Clearly, entry-level candidates will not have fully developed this facility. On the other hand, personal experience suggests that this facility exists in entry-level candidates—and even entry-level candidates without an advanced degree (other than a J.D.). This is the upper class of the profession—sometimes eccentric, and financially independent enough to do what it wants without much of a regard for anything else, other than the requisites of its own leadership. The up side is the ability to pull the profession, and the study of law in whole new directions, the down side is the arrogance and control of authoritative investigation that can sometimes suffocate other endeavors that tend to threaten its position. But I guess one takes the good with the bad as long as one is willing to continue to subsidize the current academic social order. And double standards, anti-democratic tendencies, and failures to live up to the promise of institutional status always dog this group.
So, it appears to me, scholarship does matter, and the form of scholarship matters most. For all that the academy speaks the language of inclusion, democracy, judgments purely on ‘merits’ and the like, it acts, like every other institution, to solidify hierarchy and a complicated system of status sorters. It seems that the sort of scholarship one engages in is, like salaries and other evidences of status, continue to contribute to the maintenance of a proper order in our institution. In institutions like these, every actor knows its place, and the systems for maintaining the appropriate hierarchical order have been developed to preserve that order. It is not that institutions cannot be upwardly (or downwardly), it is just that such movement is not as easy as it might seem. The institutional ordering of the academy makes such movements more rather than less difficult. But in this the academy is little different from other institutions. In this context, it may be wise to be suspicious of articulations of aspirations to “move to the highest ranks” of the academy; and it helps explain why it lip service may be the most efficient means of living within one’s assigned level in the academic hierarchy.