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January 23, 2006

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» Are Exploding Offers So Bad? from Concurring Opinions
Jennifer Mnookin, at Law and Culture, has a good post about the use of exploding offers in law faculty recruiting. I agree with her fundamental points, that such offers a) aren't very nice (though I'd take issue with her term,"outrageous");... [Read More]

Comments

Anonymous

Wonderful post. I'll add my own horror story, names having been changed to protect the innocent and not-so-innocent. I used to teach at a top-40 law school, we'll call it School A. It was one of three serious call-backs that I had when I was on the market. I scheduled my call-back with School A first, then my call-backs with School B and School C ten and twelve days later. School B was lower in the rankings than School A -- but exceptionally strong in my area -- and School C was considerably higher and my clear first choice.

A few weeks before my call-back with School A, the head of the hiring committee called and asked me to move up my call-back ten days. Not having much bargaining power, I agreed. The call-back went very well and, to my surprise, the Dean made me an offer two days later. Unfortunately, she gave me an exploding offer -- set to expire precisely one day after my final call-back, with School C. I called Schools B and C to explain the situation; both told me to interview with them anyway and they would see what they could do. And so I did. Both call-backs went very well, particularly at School C. In fact, School C told me that I was definitely their first choice, with one caveat -- there was a small but real chance they would not be able to hire anyone that year, and they wouldn't know for about a week. I then called the Dean of School A and asked for a week extension, three days less than the 10 days they asked me to move my call-back up. The Dean refused, telling me that he had other candidates waiting.

It was, to say the least, a frustrating situation. School C was my dream school and wanted to hire me, but the Dean couldn't guarantee they'd be able to. School A was a great school, though far less desirable for a reasons other than simple prestige (not my primary criterion). I had a long heart-to-heart with the Dean of School C, with whom I'd become good friends, and he told me -- not surprisingly -- that the offer from School A was too good to pass up, given the possibility that I would end up unemployed otherwise. So that's what I did.

In the end, School C did have a line to fill. I spent most of the summer before I moved to School A bitter and angry. And as much as I enjoyed my students and colleagues, I could never get past the hardball-to-end-all-hardball to which I had been subjected. So it should not come as a surprise that I left School A the moment I received a more desirable offer -- and a few years before I ever intended to change schools.

My new school is far more prestigious than School A, with better students and a more interesting faculty. I know I have my years at School A to thank for my ability to "move up," but I will never have anything but unpleasant feelings for it. The moral of the story, I think, is that playing hardball with a candidate is always counterproductive: even if the candidate accepts the offer, she is unlikely to forget her earlier mistreatment. And that's not good for the candidate or the school.

Jason

As a merely lowly 1L, but one who explored academic graduate school before ending up going to law school, is there any parallel to this in other academic markets? Are Harvard and Princeton fighting over mathematicians this way?

I've read lots of posts like this around the blogosphere and it really seems like the law hiring system is pretty broken in (at least) this respect. But what makes the legal academic market so different from the other markets that schools resort to these kinds of tactics?

Anon Future-Market Participant

Here's the question then: what happens to candidates if they pull the nuclear option? The nuclear option being, in this case, taking the exploding offer and letting it be quietly known that one is still interested in the other schools -- and should one of the other schools hire one, one's acceptance of the exploding offer suddenly evaporates. Is that ethical? Well, probably not, but then again neither are exploding offers. It's not as if the schools will be able to take the PR heat from suing job candidates for breach of contract or something.

Thoughts?

Stickler

It would be useful to distinguish between exploding offers and expiring offers.

An exploding offer has an extremely short fuse. Some federal judges, for example, demand that clerkship offers be either accepted or declined within minutes, allowing the applicant virtually no time to explore other possibilities.

An expiring offer, on the other hand, simply has a deadline -- it isn't held open indefinitely. Of course, that is how most transactions take place. The offerors decides how long they are willing to wait.

Exploding offers are unfair, especially where there is dramatically uneven bargaining power. Expiring offers are simply the way of the world.

Of course, there is a gray area. What is the demarcation between exploding and expiring? A discussion of that question would be most interesting.

viewer from the other side

To Anon Future-Market Participant:

Dishonesty of the sort you are proposing is always unethical. Be careful not to get carried away with the idea that exploding offers are unethical. Schools are seeking to hire faculty. It's a bit hard edged, and very unusual, to give the kind of offer Jennifer Mnookin rightly identifies as problematic--one that explodes for the purpose of cutting off a candidate's alternatives. But Mnookin points out that as long as certain conditions are at play, there's nothing wrong with exploding offers. Those conditions are 1. that the school genuinely intends to let offers expire so that it can then make offers to another set of candidates, 2. the school could not hire without having the position freed up and available because it has a limited number of hiring lines, 3. the school is willing to extend deadlines by a few days when doing so would allow another school to vote on the candidate, and 4. the school tells the candidates exactly what it is doing and why. These are the conditions that most schools live by when they set deadlines for an answer from a job candidate.

It is silly to throw this discussion into the realm of ethics. Candidates on the job market have graduated from the top handful of law schools, and it is from faculty mentors at those atypical schools that candidates are getting their advice and perspective on exploding offers. The interest of candidates in waiting until the end of the hiring season coincidentally aligns with the interest of those very top schools, and against the interests of schools with more ordinary budget constraints. Candidates should be skeptical of claims by those very top schools that they are unable to render a decision on the candidate within the candidate's time frame. Those top schools are usually able to make decisions on candidates earlier, when the question is called. But it is not what they want. They would like to wait the whole season so that they can see the whole field before making decisions. The coincidental alignment of interests between a tiny number of schools with the greatest resources and the candidates themselves should not be mistaken for an ethical nexus. I would hope that faculty mentors at top schools would reflect on the roles that their self-interest or innocent ignorance play before disparaging the budgetary constraints faced by most law schools.

Meanwhile, candidates should wonder when listening to advise about exploding offers from their faculty mentors whethr it is the procedures of their home schools that are ponderous and idiosyncratic. The privilege to compare all of the candidates that those home schools wish to maintain, and the inability to understand the resource issues that constrain other schools from making multiple offers, may obscure to those with a narrow experience of legal academics the real conditions of the teaching market.

Above all, candidates, be skeptical when a top school tells you it cannot act in time on your candidacy. Those top schools are able to make decisions about you earlier, exactly as their sister schools down the line do. But they don't want to--it constrains their ability to make the comparisons they'd like to make. In every case where they do not act before your deadline runs out, they choose to let you go in favor of their own institutional processes and priorities. When they later join you in complaining about other schools, you can't be sure whether it is your perogatives or their own that concern them.

Visitor wannabe

A random question: is there an on-line source for "Visitor" law professor openings?

Royce Barondes

An understanding of the complete terms of the "offer" may be called-for. At least some schools extend offers that formally are subject to approval by some other body, e.g., a board of regents. This may effectively recast the relationship as one in which the candidate is making an offer that can be accepted by the school at some point in time in the future. That's because although, in certain cases, there might formally be consideration supporting making the applicant's "offer" irrevocable (or an estoppel might work), in other cases there would not. I would expect that the combination of these two types of terms--exploding offers and non-offer "offers"--might influence the likelihood of defection.

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