Exploding Offers are Evil

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.

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10 Responses to Exploding Offers are Evil

  1. Dan Markel says:

    Michael,
    just to be clear, I’m not endorsing the 2 weeks or less offer as a best practice or even a good practice for the school; what I wrote is that such offers might not be inherently coercive or bad in all circumstances. Indeed, a few weeks ago, I suggested (http://prawfsblawg.blogs.com/prawfsblawg/2009/11/best-practices-for-appointments-committees.html) that around a month would likely be best from the time the candidate got all the relevant information from the dean. And as I mentioned in the post you linked to, there are a number of factors that play into consideration of the reasonableness of any offer: the time of the year (proximity to holidays), whether there’s any unusual circumstances interfering with the candidate’s opportunity to visit the school with family, etc. You raised many of the same issues but neglected via omission to note that I did also.

    It’s too bad the ellipsis you used omitted the context of what I wrote. I think it’s misleading to your readers. Again, I agree that there should be sufficient time for persons with complex lives to come to the school and city, have a reasonable chance to assess what the options are for spouses, children, healthcare, etc. But all that suggests is that a rule of reasonableness operate. If a person doesn’t have a complex life with sig others involved, and is not waiting to hear from other schools he’s already interviewed with, well, there might be a situation where 2 weeks from the offer and the chance to visit (meaningfully), may not be so crazy, especially if the candidate were told prior to the interview that such a result might occur. Also, your post doesn’t consider how the market forces differ for lateral from entry-levels. Sometimes the situations of laterals are simpler than for rookies (and sometimes they’re not).

    best wishes,
    dan

  2. michael says:

    Well, heck, there’s a link up there, so people can read it for themselves.

    I think we have a fundamental disagreement: in my opinion, a place that gives a two-week deadline before or right after the AALS (not to mention the shorter deadlines) is deeply uncollegial. I’ll go farther and say and that such practices at almost any time in the hiring cycle, and in any but the most exceptional case (the legislature is threatening to take the line away, for example), mean the school is doing something wrong — something inconsistent with the better values of the academy.

    I submit that’s not what you said your view was at all.

  3. Dan Markel says:

    I’m not sure there’s a fundamental disagreement or what your basis is for thinking there is one. I’ve never supported a 2 week deadline before or right after the AALS. I’m not sure where you got that or how that would be entailed by anything I wrote.
    Where we disagree is on the margins actually: in the main, I think a month is probably enough in most cases, and it sounds like you think 6-8 weeks is preferable. I could imagine schools having decent but not necessarily great reasons for adopting a 2 week exploding offer that took effect in a very few cases. But as I highlighted in the post, such a practice is unlikely to redound to the benefit of the school, a point both you and Leiter agree with I think, and it’s not a practice I recommend, even if it’s a practice I might think is not unreasonable in some small number of cases. The rest is commentary…

  4. michael says:

    I really do think that both posts speak for themselves quite well, so I’m not going to continue this debate here except to note that the original post includes the following:

    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. A school’s choice in this regard should be driven by good and publicly explainable reasons: if there is only one slot and a few appropriate candidates, that might counsel in favor of shorter deadlines; if there are many slots and it’s already near the end of the hiring season, that might warrant greater flexibility.

    I, in contrast, am prepared to condemn it as coercive in all but the very most unusual circumstances.

  5. Vic says:

    Welcom to the real world, Michael. In the real world, when you are looking for work, you OFTEN come up against the problem of timing. You might have a couple of companies showing some interest, and the least favorable one to you makes an offer first. Remember, these are real companies/firms that do real work, that is often time-sensitive. When you get an offer, they mean now, and it might even be after your first little chat with them. While you almost never get told that the clock is ticking, and you can usually say you want a day to think about it, it is assuredly implied that you don’t get to dither along for 6 weeks while you ponder the imponderables (or simply wait for your preferred offer to come in, if it ever does). The real world often FORCES you to make a decision, and live with those consequences.

    Now your point will likely be about how the atmosphere is more collegial in a law school and that it’s more akin to a marriage than a hiring.

    But the same thing happens with other jobs. Very often a large part of your interview is effectively a speed date, not a test. And once you work in a company, you are either collegial, or you’re out. You just don’t get 6 weeks to measure every aspect of compatability first. This is not to say that I think hiring law profs should be done the same as hiring associates or other employees, by any means, but you should recognize that people with non-law prof jobs do just fine is assimilating into collegial teams, or moving on if they don’t.

    Additionally, I’m not sure if all the time taken to vet law profs isn’t sometimes made worthless by also having a tenure system. I mean if you spend so much time vetting, why not allow the reality of the choice to be as it is, good or bad over the long-run? At UMiami, for example, you have a few profs who are likely NOT part of this collegial atmosphere, a couple who should NEVER be allowed to be near a student, and even some that have engaged in unethical, even criminal behavior. I have no interest in judging them, except to conjecture that there are no doubt some profs who ONLY keep their jobs because they somehow got tenure. I would submit that the best of all worlds might be a long, vetting, hiring process, COUPLED with consequences (you can fire those that don’t work out after some reasonable period – putting up with the vetting buys you a free year or two, but after that, if the school was wrong…). While I’m sure teachers are not SUPPOSED to GET tenure if they are also not good for the team, but get real, we both know a few profs who are BAD for UM, yet there they are.

  6. michael says:

    Well, of course, in different industries you have different practices. (I reject the common claim that the academy is not part of the “real world”. This is not Alzeroth. We are just a very special, indeed very fortunate, part of the real world.)

    Faculty hiring is unusual — in how many other industries might you be considering jobs in so many different places in a short time frame? Plus there is a reasonable expectation that the person will have the job a very long time. And there is no easy way to fire someone quickly if they don’t work out; the usual tenure track is 5+ years. (A one-year probationary period would IMHO be an error — it takes many, many people as much as three years to get their sea legs for this stuff.) Past tenure, there isn’t much other than self-motivation to force people to produce. It’s important that they feel good about the place, so that they are incentivized to be good citizens.

    And that is why it’s so important to start on the right foot, and not mistreat people.

    (The discussion of whether academic tenure is on balance of value to society is a separate question; I think it is, but then I would say that, wouldn’t I?)

  7. JBB says:

    Michael,

    How would you define “academy” and “real world?” I have always thought of them as amorphous but disparate concepts.

  8. Anon says:

    Perhaps not ironically, I can think of several entry-level professors Dan’s school has hired over the last 10-15 years (before Dan’s time) through the use of short fuse offers that exploded before the AALS conference. So, this is hardly a recent phenomenon. More generally, his school has a reputation as having a keen eye for young talent and for being a springboard for people who have moved up to higher ranked schools. It’s probably worked out OK for the school on-balance given the contributions of the faculty they have hired using exploding offers and other techniques, despite the eventual loss of many of those people. It’s not even clear the faculty members in question suffered greatly. I don’t think many of the people who eventually departed for higher ranked places would have ended up at as highly ranked a school straight out of the AALS if they had been free to troll the market as long as they wanted, nor do I think any of them left because they were bitter about the original exploding offer.

  9. rage4xmas says:

    Perhaps not ironically, I can think of several entry-level professors Dan’s school has hired over the last 10-15 years (before Dan’s time) through the use of short fuse offers that exploded before the AALS conference. So, this is hardly a recent phenomenon. More generally, his school has a reputation as having a keen eye for young talent and for being a springboard for people who have moved up to higher ranked schools. It’s probably worked out OK for the school on-balance given the contributions of the faculty they have hired using exploding offers and other techniques, despite the eventual loss of many of those people. It’s not even clear the faculty members in question suffered greatly. I don’t think many of the people who eventually departed for higher ranked places would have ended up at as highly ranked a school straight out of the AALS if they had been free to troll the market as long as they wanted, nor do I think any of them left because they were bitter about the original exploding offer.

  10. hambone says:

    while on the topic of academic appointments, VC has a piece on the importance or lack thereof of PhD in law academia hiring; http://volokh.com/2009/12/09/in-the-future-will-a-ph-d-be-more-important-to-get-a-law-teaching-job-or-less/#comments

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