« on: March 05, 2007, 12:21:01 PM »
Faculty Turnover at Michigan Law
An earlier posting on Northwestern Law's faculty retention problems led a Michigan law student to ask me to elaborate on a parenthetical remark from that posting as follows: "(Michigan has given Northwestern a run for the money on senior faculty losses, but has fared better, I think, in new recruitment--a subject for a different day.)" That student recently reminded me of my promise to post on that subject, which I turn to, finally, here.
Let me add, for the benefit of prospective law student readers, that what follows will have little relevance for most students: Michigan's reputation among practitioners and judges and its national placement clout has been little affected by any of the faculty turnover issues. Those for whom issues of faculty quality most matter are those who are thinking of law school like graduate school in a Ph.D. discipline, i.e., as an educational and intellectual experience such that the scholarly caliber of the faculty will very much matter.
When I enrolled at the University of Michigan Law School in the fall of 1984, Michigan could still, quite credibly, claim to be one of the top five law faculties in the United States. The faculty ranks included, for example, the leading figure in international private law (John Jackson); the leading figures in criminal procedure (Jerold Israel and Yale Kamisar); the leading figure in the then vibrant law-and-literature movement (James Boyd White); the leading authority on the Uniform Commercial Code (James J. White); the leading senior figure in environmental law (Joseph Sax); one of the two or three leading free speech scholars (Frederick Schauer); a leading figure in environmental law, whose innovative property textbook dominates the national market (James Krier); and so on. J.B. White had recently been stolen away from the University of Chicago Law School, and a few years later Michigan would again raid Chicago for the distinguished legal historian and comparative law expert A.W.B. Simpson.
During the 1990s, something happened to Michigan's relative market position: Michigan no longer raided Chicago, and instead saw itself being raided by Georgetown and NYU--schools that a generation ago never would have been competitive with Michigan on the market for faculty--and ever more frequently by Columbia, long a rival, and now distinctly ahead in the competition for the top faculty. Israel, Kamisar, and Jackson are now retired (each moved to teaching posts at new schools: Florida, San Diego, and Georgetown, respectively); Simpson is in his 70s and half-time; Schauer left for Harvard's Kennedy School, Sax for Berkeley; J.J. White is also nearing retirement. During the 1990s, Georgetown picked off Alexander Aleinikoff (immigration law, constitutional law), Jackson, and Avery Katz (law and economics) (who has since moved to Columbia); NYU stole Deborah Malamud (labor law) and Richard Pildes (constitutional law, voting rights); Columbia hired Jose Alvaerz (international law), Debra Livingston (criminal law/procedure), Michael Heller (property), and Merritt Fox (corporate law). Other faculty moved to Harvard (Joseph Weiler in European Union and comparative law, now at NYU), Texas (Ronald Mann in commercial law and intellectual property), and Vanderbilt (Kent Syverud in insurance law and legal ethics; he became Dean at Vanderbilt).
What happened is very hard to say. Some of it surely has to do with the difficulties of recruiting two-career couples to Ann Arbor, a town of modest size, whose nearest metroplitan area is Detroit. More of it, I suspect, simply has to do with the competition (e.g., NYU, Georgetown) getting stronger. My colleague Larry Sager (who, himself, played a major role in NYU's rise to prominence, before moving to Texas a few years ago) has observed, plausibly in my view, that while Michigan was one of the first top schools to make the "interdisciplinary turn" in legal education, it failed to keep pace as other schools moved in that direction during the 1980s and 1990s (this was most apparent in law-and-economics, but not only there--only in work at the intersection of law and the other social sciences did Michigan retain a dominant position).
One factor I'm sure this change in Michigan's relative market position has nothing to do with is money. Michigan has lots of it; it has operated as a de facto private law school (in funding sources, not to mention tuition charged) for a good while now. (One of their recent lateral hires was of my colleague Steven Ratner, a leading international law scholar; when I heard how much money Michigan spends on international law [conferences, internships, etc.] each year, I have to say I couldn't begrudge Ratner for taking the offer!)
Michigan made relatively few lateral appointments during this time period when its senior talent was being picked off or retiring. Instead of hiring established or up-and-coming scholars, Michigan pursued the strategy of hiring promising new assistant professors. This is always a risky strategy, since promise is one thing, realization of promise another. Yet for a period of time in the 1990s, Michigan was on a winning streak, recruiting many of the top young faculty candidates on the market--folks like Steven Croley (torts, administrative law), Roderick Hills (constitutional law), and Kyle Logue (tax)--young scholars that many other top schools were eager to hire.
Unfortunately, some of those so recruited have already decamped to elsewhere (e.g., Heller and Mann). And while some recent assistant professor hires have been outstanding (John Pottow in commercial law comes to mind), overall Michigan hasn't recruited quite as many of the top junior prospects as it had earlier in the 1990s.
Where does this leave my alma mater? Michigan may not, by anyone's estimation any longer, be one of the top five law faculties, but it is still clearly in the top ranks. Leading figures in several fields--for example, law and sociology (Richard Lempert) and law and psychology (Phoebe Ellsworth)--still grace the faculty, though Michigan no longer boasts as many clear leaders in as many fields as a generation ago. The results of last year's reputational survey of 150+ leading legal scholars are not implausible on this count: Michigan now competes in a cluster with Berkeley, Virginia, Penn, and Texas, whereas a generation ago it would have competed in the cluster with Columbia, Stanford, and Chicago. (NYU, of course, is now in this latter cluster as well.) The combination of Ann Arbor and new, credible competition from schools in bigger cities like New York and Washington, D.C. (not to mention Austin!) makes it unlikely that Michigan will recoup its dominant position in legal academia of the 1960s and 1970s. The combination of substantial resources, strong existing faculty, and involvement with a first-rate research university (one clearly better than NYU, Texas, and Penn, not to mention Virginia and Georgetown) makes it equally likely that Michigan will remain in the top ranks for any future one can foresee.