Law Teaching and 'Exploding Offers'

On the law teaching market, schools typically make offers to candidates sometime between October and April, with the majority of decisions coming sometime in December, January and February.

Some schools (typically those in the top ranks) give candidates ‘as long as they reasonably need’ to make a decision.  Others set deadlines, giving candidates an ‘exploding offer’ which will last until a certain date, and then ‘explode’ in a puff of smoke and disappear.

Schools give exploding offers for at least two reasons, one perfectly understandable and the other more problematic.  The understandable reason is that most schools are constrained in the number of hires they can make in a given year, and they worry that if Candidate A takes too much time to make a decision and then chooses to go elsewhere, in the meantime they will have lost Candidates B & C to exploding offers from other schools and they’ll be left high and dry.

But schools also make exploding offers to try to play on candidates’ understandable risk-aversion in the face of incomplete information. The market is a nerve-wracking process for everyone, and it can be very, very hard to turn down a bird in the hand, even if the candidate is still ‘in play’ at a handful of schools that s/he might prefer. In some instances it can seem like the purpose – rather than just an unintended consequence of the first explanation for exploding offices – is to force candidates hands before they get a little more information about their prospects. I’ve heard of schools doing things that seem to me pretty outrageous:  a bottom-of-the-second tier school refusing to give a candidate 48 more hours to decide, knowing that she was going to get an answer from a top 20 school within two days; or a dean who wouldn’t give a candidate a 72 hour extension (from a Friday to a Monday) so that the appointments committee at a top-10 school would have the chance to meet and report back to the candidate on her prospects.

The advantage to these schools in playing ‘hardball’ is obvious:  they may well nab candidates this way whom they’d otherwise lose. Of course, there’s a serious possible downside too: even if the candidate comes (succumbs?), it may well be with a bad taste in her mouth.  In one of the cases I describe above, the candidate jumped ship for another school just one year later.

None of this is new:  one friend of mine, probably about 10 years ago, accepted an exploding offer at a top-20 school even though he had job talks scheduled at the time at three schools in the top 10. But he was only sure that he preferred one of the three, and he made, I think pretty comfortably, the risk-averse decision. (Of course, I don’t mean to suggest that candidates with complete information necessarily follow rankings –  they are obviously choosing schools along a whole host of dimensions, with school prestige as just one input.)

But while I don’t have more than anecdote on which to base this claim, I get the feeling that exploding offers just might be increasing, and sometimes with deadlines that seem ever-earlier.  At the same time, I think it’s fair to say that the super-elite schools are in the ‘junior market’ pretty actively these days – and these schools, especially Harvard and Yale, often wait until quite late in the spring to make their full array of offers.

This combination is putting pressure on the schools just below them – roughly the schools ranked, say, 5-25, those schools who are competing for some of the most sought-after candidates, but who (with a few exceptions) have tended not to be in the exploding offer game. These schools risk losing some of their candidates to schools that make aggressive exploding offers.  At the same time, they risk operating a bit like the testing ground for the super-elite schools. There are a couple of schools (mentioning no names) that seem to sit back, watch the market unfold, see who’s playing well across the country and then cherry pick very late in the game – and though they don’t always get the candidates to whom they make offers, the reality is that most of the time they do.

So my question is this:  are we going to see more defensive efforts by top-tier schools to respond to and block these moves from above and below?

There are certainly hints that some schools may be attempting minor rebellions. Northwestern was allegedly trying a new hiring tactic where they promised to take up an ultra-hot candidate or two for very early consideration if the candidate pulled out from consideration at all but a couple of the ultra-elite schools.  (Rumor has it that at least with respect to one such candidate, the deal broke down.) Northwestern’s approach, if captured accurately,  strikes me as a little bizarre, in that by letting the candidate still play out a couple of schools on  a pre-selected list, they are still likely to have to wait until late in the season to get a final answer. Moreover, to ask candidates to pull out of schools before the AALS is asking them to constrain their options with extremely incomplete information: I’d say that anyone to whom Northwestern made such an offer, unless they had very strong institutional or geographical preferences, ought to realize that it’s probably not in their interest.

Here are three other possible responses I could imagine schools trying out:

(1)    Offers with deadlines emerging from more of the top schools.  Probably not the extreme early deadlines we sometimes see – but February 1, February 15, something like that.  By this point, candidates generally do know many of their options – and if lots of schools began imposing deadlines it might force the super-elite schools to make decisions on a more similar timeline as other places.  But by definition, the hottest candidates have quite a few offers. So unless a whole bunch of schools began imposing deadline en masse, a candidates’ response to any one school that imposed a deadline while that candidate was still waiting for some options might simply be, “I’m very sorry to have to turn down your offer.”   

(2)    An ‘early decision’ approach to hiring, parallel to what many colleges offer applicants.  Schools might contact a few very promising candidates and give them the option to be considered on a fast-track.  If they chose to take it, they would interview early (pre-AALS) and get a decision from the school by, say, November 15, -- but, in exchange, they would be expected to decide by December 15 (a point at which they would probably have a reasonable idea about their job talk options, but fairly limited info about likely offers).  Alternatively, the candidate could decline the ‘fast track,’ and be interviewed at the AALS and considered along with the rest of the pool. Because the candidates would have been electing the fast-track themselves, there might be less of a risk they’d feel strong-armed and resentful about the might-have-beens.

(3)    Greater use of a technique that some schools use on the laterals market: the ‘we’ll vote you an offer when you’re ready to decide about it’ approach. The appointments committee chair would tell the candidate something like, “My committee likes you very much, and so do my colleagues. We’ll be prepared to bring you to the faculty, where I expect you’ll get an offer, whenever you tell us that you’re ready.  Assuming we make the offer, we’ll give you three weeks to decide. Of course, I want to be clear that this isn’t a promise.  I can’t swear as to what the faculty will do. And we’re looking to hire 2 or 3 people this year, so there is a chance that if you wait too long, we’ll already be through with our hiring for the year.”  This too would put candidates on a shorter leash – but one that they played a role in constructing.

I don’t know whether any of these will happen, and I certainly don't know whether any of them would be a good idea. But I do have the sense that the current equilibrium might not be all that stable. . . any thoughts?

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.

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[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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