"Objectivity" and fairness" in law and hiring

Mortimer Sellers msellers at ubalt.edu
Thu Sep 1 11:44:33 PDT 2005


Perhaps the distinction we are striving to make here is between "fairness" and "objectivity", as Prof. Chambers suggests.  It seems to me that fairness in hiring (or interpretation) consists partly in applying agreed-upon criteria objectively.  If we cannot agree upon the relevant criteria, then fairness would at least imply that each of us be open about our (divergent) criteria and apply them consistently (i.e. objectively) in particular cases.  The more specific we are able to be about the relevant criteria, the more "objective" and therefore the fairer the decision-making process will be (and the easier it will be to criticize the underlying criteria as "unfair", if in fact they are unfair in some way).  The problem with the processes in place for hiring law professors may be that the (openly stated) criteria being used are too easy to fulfill and that therefore other (unstated) criteria are doing all the real work.  The same might  be said of many forms of legal reasoning.

         Tim Sellers

-----Original Message-----
From: Chambers, Henry [mailto:hchamber at richmond.edu]
Sent: Thursday, September 01, 2005 1:35 PM
To: Mortimer Sellers; Lynne Henderson
Cc: conlawprof at lists.ucla.edu
Subject: RE: "Objectivity" and "criteria" in law and hiring


Dishonesty is not the issue.  Some may believe, for example, that being
an editor of a law review at a top school is necessary to teach law and
that all aspiring professors should meet such a standard.  Those folks
are not dishonestly hiding their preferences; they are putting them out
for all to see, though in the form of an objective/measurable standard.
The standard may be objective, but making it a requirement for the job
is subjective.  

Clearly we must choose whatever criteria (presumably non-political) we
believe are best to select future colleagues or to decide constitutional
issues.  However, there is no need for us to claim that our personal
choices are objectively superior to the choices that others make.
Humility and reason would seem to dictate that we not do that.

Questioning the existence of objectivity does not mean that one will
hire their political allies.  One can "give up" on the notion of
objectivity then attempt to hire as fairly as possible, i.e., attempt to
leave politics to the side, in the same way that one can "give up" on
the notion that there is a single correct way to interpret the
Constitution then attempt to decide cases as fairly as possible, i.e.,
attempt to leave politics to the side.   

-Hank  

Henry L. Chambers, Jr., Professor of Law
University of Richmond School of Law
28 Westhampton Way
Richmond, VA 23173
804-289-8199

-----Original Message-----
From: Mortimer Sellers [mailto:msellers at ubalt.edu] 
Sent: Thursday, September 01, 2005 11:38 AM
To: Chambers, Henry; Lynne Henderson
Cc: conlawprof at lists.ucla.edu
Subject: RE: "Objectivity" and "criteria" in law and hiring

I suspect that many law professors agree with Prof. Chambers (below)
that the use of objective standards almost always masks subjectivity.

If so, which criteria should we apply in hiring professors, selecting
judges, interpreting doctrine, etc.?

One approach would be to criticize those who use supposedly objective
standards dishonestly to hide their hidden political or other
preferences.  People adopting this approach could then have an open
discussion about which criteria are really appropriate in hiring (or
interpretation or whatever) and try to apply these agreed-upon standards
honestly in the future.

Another approach would be to give up on objectivity and to hire
political allies. 

My original point was that there are in fact some objective criteria
used in hiring law professors (clerkships, etc.) but that these do not
narrow the field as much as more scholarly criteria do in other academic
disciplines, making it possible to respect the basic agreed-upon
criteria in law hiring and still have a very wide latitude to hire one's
ideological allies.

Perhaps it would be interesting on this list to consider what the
objective criteria for hiring constitutional law professors should be.
(Or if there should be any criteria at all.)

        Tim Sellers

-----Original Message-----
From:	Chambers, Henry [mailto:hchamber at richmond.edu]
Sent:	Wed 8/31/2005 6:04 PM
To:	Mortimer Sellers; Lynne Henderson
Cc:	conlawprof at lists.ucla.edu
Subject:	RE: "Objectivity" in law and hiring

The use of objective standards almost always masks subjectivity.  A
requirement that all new law professor hires be former Supreme Court
clerks is an objective (measurable) standard.  However, such a
requirement would quite likely stem from a subjective, i.e., fairly
debatable, view regarding former Supreme Court clerks and those who did
not clerk for the Supreme Court.  The subjective views buried beneath
objective standards make almost any hiring process, even one based
solely on objective standards, fairly subjective.  

And yes, the same rationale does apply to Supreme Court nominations,
which are by their nature very subjective.

-Hank 

Henry L. Chambers, Jr., Professor of Law
University of Richmond School of Law
28 Westhampton Way
Richmond, VA 23173
804-289-8199

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mortimer Sellers
Sent: Wednesday, August 31, 2005 5:17 PM
To: Lynne Henderson
Cc: conlawprof at lists.ucla.edu
Subject: "Objectivity" in law and hiring

It is hard to apply objective standards in making hiring decisions if
one does not believe in objectivity.  There has been a great deal of
writing by law professors denigrating the desirability (or possibility)
of "objectivity" in discussing legal questions.  If objectivity is seen
by many law professors as chimerical or even oppressive, we should not
be surprised that they do not strive to apply objectively justifiable
criteria in their hiring practices.  If (as many seem to believe) law is
just another form of politics, why shouldn't people hire their political
allies when they get the chance?  The same rationale applies to Supreme
Court appointments, legal interpretation and many other questions of
interest to this list.

       Tim Sellers


-----Original Message-----
From:	Lynne Henderson [mailto:hendersl at ix.netcom.com]
Sent:	Wed 8/31/2005 3:59 PM
To:	Mortimer Sellers; Barksdale,Yvette; Earl Maltz;
conlawprof at lists.ucla.edu
Cc:	
Subject:	RE: Re: party affiliations of law profs

In any event, assuming tht other academic discplines just *are* more
"objective" seems belied by studies of subtle (or not so subtle) biases
in fields ragning from the humaniteis to the social sciences to the hard
sciences.
Lynne Henderson

-----Original Message-----
From: Mortimer Sellers <msellers at ubalt.edu>
Sent: Aug 31, 2005 11:13 AM
To: "Barksdale, Yvette" <7barksda at jmls.edu>, 
	Earl Maltz <emaltz at camden.rutgers.edu>,
conlawprof at lists.ucla.edu
Subject: RE: Re: party affiliations of law profs

Might it not be that the standards for what constitutes a good law
professor are less objective and therefore more manipulable than in some
other academic fields?  There are many more people who meet the minimum
standard for teaching law (completing their J.D. degree) than in most
other academic disciplines, which require more substantial research and
preparation. There are also fewer objective requirements for promotion
and tenure in law schools(all that is needed are a few student-selected
articles).  One of the great beauties of being a law professor is the
breadth of what counts as legitimate scholarship.  But this also makes
it easier for those already in place to replicate themselves by hiring
people whose political views they agree with.  The "harder" (i.e more
objective) the discipline (e.g. mathematics), the more diverse the
family backgrounds and political views of the professors teaching the
subject.

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu]On Behalf Of Barksdale, Yvette
Sent: Wednesday, August 31, 2005 1:38 PM
To: Earl Maltz; conlawprof at lists.ucla.edu
Subject: RE: Re: party affiliations of law profs


Hi  - 
 
Did the authors of the study compare law professors to other professors.
It is certainly plausible that liberals might be more likely to enter
academia in general than conservatives. For example, economic
conservatives may be more interested in accruing wealth, than shuffling
through dusty library stacks (okay nobody does this anyway since the
Internet age).  Social conservatives who believe that there are clear,
certain, fundamental truths may be less comfortable with the spirit of
skeptical inquiry that is the hallmark of academia.  This may not be a
law professor issue - as much as a professor vs. real-life job issue.
 
(of course, you might also say that people searching for truth end up
being liberals in the end - smile)
 
yb

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Earl Maltz
Sent: Wed 8/31/2005 10:25 AM
To: conlawprof at lists.ucla.edu
Subject: Fwd: Re: party affiliations of law profs




>Date: Wed, 31 Aug 2005 11:00:06 -0400
>To: "Sanford Levinson" <SLevinson at law.utexas.edu>
>From: Earl Maltz <emaltz at camden.rutgers.edu>
>Subject: Re: party affiliations of law profs
>
>I don't seem to remember a noticeable right wing shift in the legal
>academy during the Clinton years.
>
>At 09:27 AM 8/31/2005 -0500, you wrote:
>>Content-class: urn:content-classes:message
>>Content-Type: multipart/alternative;
>>         boundary="----_=_NextPart_001_01C5AE38.2AAA0877"
>>
>>Is it relevant to suggest that if Al Gore had been recognized as the
>>winner of the 2000 election (which of course he was), a lot of liberal
>>lawProfessors would be in gov't or on the bench, leaving lots of
>>positions to be filled with conservatives (who didn't prefer private
>>practice or affiliation with well-funded conservative think tanks?  A
lot
>>of conservatives have better things to do these days than enter the
legal
>>academy.  This is not meant to disagree with Mark's observations,
which
>>seem right to me, but to offer another explanation than the vast
>>left-wing hiring conspiracy.
>>
>>Sandy
>>
>>
>>- Sanford Levinson
>>(Sent from a Blackberry)
>>_______________________________________________
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