Friday, May 20, 2011

Barry Friedman on Getting a Legal History Job at a Law School

Friedman (quoted from part of a very interesting paper about his writing of a historical book without formal historical training):
As welcoming as the legal academy has been to various disciplines, historians seem to have a hard go at it when it comes to law school hiring, a curious fact given that—as Novak observes—the legal academy at times seems history-obsessed. There is a
reason: because as interdisciplinary as the legal academy tries to be, it (more or less) continues to insist that members of that academy pursue questions germane to law and society. As broad as that net can be, and from where I sit it is indeed quite broad, historians coming to law from history often appear to be lost in questions of history that bear only a tenuous connection to the broader world. As fascinating as those questions can be, they often have no apparent relationship to law.

From my own experience as a longstanding member of my law school's appointments committee, and as someone obviously sympathetic to the hiring of legal historians, I throw out another, related, thing to consider. Outside the very top, wealthiest law schools, most law schools either don't want to, or can't afford, to hire a "pure historian". It's not (necessarily) that they object to legal history as a methodology. Rather, they want to be sure that (a) faculty hires are able to cover big classes, such as first-year classes; and (b) that they will be interested in and able to interact on an academic basis with their non-historian colleagues.

This means, in short, that being a really good historian won't be enough to get you a job at most law schools--you have to show a real interest in, and talent for, law, and you should also be aware of academic literature and trends outside of history that relate to your project. So, if you are writing a history of laws that prohibited and then allowed women to own property, and an interviewer asks, "is there a public choice story there?" or "how does this relate to Catherine MacKinnon's feminist interpretation of the common law, as expressed in her recent Harvard Law Review article," or, "does this effect how I should teach family law," saying, "well, that's outside the scope of my historical research," much less "what is public choice?" or "who is Catherine MacKinnon?," or "I don't concern myself with modern family law," just isn't going to cut it at most law schools, no matter how good a historian you are.

I know that it's hard enough to get through one's graduate school classes, teaching, and thesis work without also having to worry about relevant non-historical literature. But it is what it is.


Mary L. Dudziak said...

David, you seem to be addressing what it takes to be a well-prepared law faculty candidate, not something specific to history. And I have to say, it's hard to comment on Barry w/o knowing who he's talking about. The law school-based legal historians I know are not "lost in questions of history that bear only a tenuous connection to broader world." Certainly Barry was being hyperbolic. We're interested in law -- that's what we do. We teach big first year courses, etc. Well prepared legal historians on the law market know they have to be up on legal scholarship as well as historical scholarship. I'm sure there are folks who've been on the market who have not been well prepared, but there are candidates like that in all fields. In legal history, there are so many fellowship programs and such good mentoring that candidates often seem to be impeccably well prepared.

The issue that legal historians talk about is getting asked "what's the cash out value" of their historical work -- which I took up here. That question is not about whether legal history work is law-related -- by definition, it is. Instead, that's a more focused question of how the candidate's historical work informs current questions of law and public policy. The challenge for an entry-level candidate is figuring out how to seriously engage that question without having it appear that their entire project is driven by "presentism," or is a form of law office history.

David Bernstein said...

"you seem to be addressing what it takes to be a well-prepared law faculty candidate, not something specific to history."

Mary, I think that's right, though I also think it's easy for Ph.D. students--not just in history--to get caught up in their own disciplinary worlds and forget that they will need to persuade law professors that they will be valuable members of a law school faculty.

As for presentism, there will be some faculty committees that demand this, and I think there candidates just need to stick to their guns and hope for the best. I criticized demands for presentism of legal historians in a relatively recent Volokh post, but I can't locate it.

David Bernstein said...

"We're interested in law -- that's what we do. We teach big first year courses, etc."

Oh, and I wasn't denying that, just pointing out that appointments committees, fairly or not, will need to be reassured.

Shag from Brookline said...

Mary's closing words in her comment:

" ... or is a form of law office history."

need to be addressed further. Is ideology taking too strong a position in history as employed in legal advocacy? Or is itself history becoming too ideological?

Karen Tani said...

David, your comments about the likely concerns of hiring committees reflect my recent experiences on the entry-level market. I'm not as sure about Professor Friedman's observation that historians have a particularly "hard go at it when it comes to law school hiring." Maybe some interdisciplinary candidates coming from other disciplines have an "easier go," but from numerical and anecdotal evidence, I know that entry-level candidates with advanced degrees in history have been getting hired in law schools, and not only at the "top, wealthiest schools." I'm less sure about the number of legal historians who have tried to get entry-level law teaching jobs and failed on the grounds that you and Professor Friedman suggest, but my sense is that it isn't many. Of the history graduate students I know, those whose research questions "have no apparent relationship to law" and no desire to engage with legal scholarship are not attracted to making their home in a law school.

David Bernstein said...

Karen, I agree that Barry is exaggerating the difficulties that legal historians face, and I agree with you and Mary that many legal historians do an excellent job at addressing the concerns I suggested. But the fact that even someone as engaged in the historical literature as Barry has the concerns he expressed does suggest that young legal historians need to be really cognizant of how they come across to appointments committees.

Andrew Lyall said...

as to the "cash out value of your work" - is the disintersted pursuit of historical truth really reduced to this in US law schools? The horror!

Shag from Brookline said...

Larry Solum's Legal Theory Blog has an extensive post today on Barry Friedman's article addressing its major aspects that focus on history, political science and constitutional interpretation theory that a candidate for a legal history - or other law school - job should find most interesting. I read the article and felt like I was listening to Friedman, encouraging me to get his book that is the subject of his article.

Vicky Saker Woeste said...

Well, as an established law and society scholar with a long track record in history, I can tell you that it is indeed difficult to get hired at certain law schools if you do not have a J.D., even if you have taken, say, half the coursework towards said degree. I just finished a visitorship at a 3d-tier law school that desperately needs faculty but was not interested in adding a legal historian who could not teach torts or crimes. There are a lot of law schools out there who won't hire law and society faculty, no matter what they have taught or published, unless they have a J.D. For them, the Ph.D. is just added value.