My writing is 'not very good,' and other reasons you can't get ahead in our not-really-a meritocracy

Pxhere CC0

A purported mentor once told me that probably I couldn't find a job in academics because my "writing is not very good."

'Tis the season when the law professor should be writing exams, yet is inundated and distracted by requests for recommendation letters to aid students on the career track. The distraction has caused me to ponder the futility of it all. Aside from the fact that my laboriously and meticulously drafted letters scarcely will be read, I'm saddened by how little a person can do to move the needle on ultimate potential in our supposed meritocracy.

In the 20-aughts, I was looking for my second job in academics, hoping to leave Arkansas and the curse of flyover country. My job search took five years. I lost count of how many applications I put in. It had to be more than there are law schools in the United States.

At some point, through a program I won't identify, as not to identify the person, I was paired with a mentor, an academic at a U.S. News "top 10" law school. After a couple of telephone counselings in which he told me nothing I did not know already, he suggested that maybe I needed to accept that I could not score a job because my "writing is not very good."

That was hurtful. Not because it wasn't a fair consideration to put on the table; it was. It was hurtful because it was his go-to conclusion, and rather the end point of the short arc that was his mentorship. There were countless other explanations for my struggle in the job market. He blew past all of them to rest on one: I suck.

Implicit in the suggestion was that he was at a top-10 school because he was so much better at the job than I. That's what hurt. And as I've matured in my career, I've come to realize how wrong he was.

I have a lot of experience now on the hiring side of hiring, almost three decades, at least in legal academics. And I've worked out a formula, though sometimes I tweak the apportionment, I feel like about describes the factors at play in getting a job, certainly in legal academics, but maybe anywhere:  

• 60% privileges; 
• 30% right-place-right-time; and 
• 10% merit.

I'm not one of these "privilege walk" organizers who use loaded questions to make people feel guilty about socioeconomic advantages, and then to feel good about having felt guilty, and then relish telling everyone how privileged I now know I am, without actually doing anything to make the world better. But I do try to be conscious of privileges, especially the ones that I have and did nothing to earn.

I did not start at the bottom of the ladder. That I'm not a person of color, thus not subject to unfair biases manifesting as implicit assumptions about aptitude and potential, nor followed by security in stores and distrusting of police; that I went to K12 in reputable suburban school districts with dedicated teachers and was a child of two parents with college degrees: these factors have worked immeasurable benefits in my life, no thanks to anything I did.

I didn't start at the top, either. My divorced, usually single parents were college educated thanks to community-college access and the military. My family was the typical penniless-20th-century-immigrant story, and my parents and grandparents were victimized by ethnic discrimination with real socioeconomic consequences. I was able to go from public school to a first-rate undergrad with mostly private-schooled kids only because I earned a full scholarship.

On the inside of hiring in academics—I can tell another time cringe-worthy stories of before academics—I have seen it all, and candidate merit is only weakly indicative of outcome.

Because of the prevalence of liberal politics in academics—I do not suggest that preferences ordinarily run in these directions in the job market in general—I had a dean who announced the race (not mine) and gender (not mine) of an intended hire at the beginning of the search process; and I've had colleagues announce, also in advance of a search, that they would vote against any candidate of a certain race (mine) or gender (mine). I've likewise heard colleagues openly favor or disfavor candidates based on perceived sexual orientation (minority favored) and religion (belief disfavored). So to pretend that these factors are not in play, whether or not they are verbalized, would be willfully ignorant.

But race, gender, etc., are easy targets to exemplify pernicious discrimination. There are other factors that are more subtle, yet equally well effect socioeconomic exclusion, and thus indirectly race discrimination. And these factors are embraced by persons both liberally and conservatively minded.

When I was at a "tier 3" law school looking for a job, a colleague at a "tier 2" school—who knew I was looking for a job—asked me whether I might recommend anyone—not me—to fill an open position at her school. I was disqualified presumptively for the open position, because I did not do a judicial clerkship after law school. My colleague iterated this hiring expectation as if it were a self-evident sine qua non. She assumed I knew my place, and I was in it. One does not advance to tier 2 without a clerkship on the resume. "We prefer people who've clerked at the Supreme Court," she said breezily.

I didn't do a judicial clerkship after law school for various reasons. A big reason was that I was sick over the profound debt I had incurred paying for law school 100% with loans. 

I had turned down full scholarships at two other law schools to pay full freight at a top 10, because I hoped the top 10 would open doors the others could not. I could not see, after law school, how I could take a job in which I would struggle to make monthly payments, or worse, postpone them, with interest accruing. For the same reason, I didn't go back to journalism after law school, which had been my plan. I also did not have anyone in law or legal academics to advise me on the value of a clerkship—an opportunity, perversely, that one never has again—for my later career.

I was the beneficiary of many privileges at that time in life. Not among them was the luxury of choosing a clerkship or any job because it would be a smart resume builder, rather than because it would pay my bills. Not among them was having anyone to model a career in legal academics, or tell me what to do to get there. And yet, with no undergrad debt, I already was much better off than most of the students I teach now. I did not yet have a family to take care of. I was able to put every spare dime from my attorney earnings into paying off my debt.

My top-10 choice paid off some, because I would not otherwise have scored my first job in academics. A key faculty player in hiring had gone to the same law school I did. The hiring school was in urgent need of an immediate start, and I was willing to quit my job and move halfway across the country at Christmas. The hiring school was especially vexed over poor student writing skills, and I was a former journalist and capable copy editor. There it is: 60% privileges, 30% right-place-right-time, and 10% merit.

Yet I would be limited thenceforth by not having clerked, and by other, similar factors. I never volunteered abroad, as many aspiring academics do. I wanted to—because of my family ties, a passport was a privilege I did have—but, again, I had to work 50 weeks per year to pay on my debt.

At my attorney job, I had little to no mentorship; it was all about billable hours. I had no role models to show me how to navigate in that world. I had no business contacts; no matter how hard I worked, I never would have made partner. The media lawyer I worked for when I started left for an in-house position after a year, and I was reassigned to the grind of mass-tort discovery.

In my first academic post, I had little to no mentorship in my professional development at my "tier 3" school. I had not even a scholarship requirement for my first years, when I was a contract instructor, not tenure track. I did not know to publish, what to publish, or where. I wrote and published only because I wanted to, about whatever I wanted. It was the law-professor equivalent of being a journalist; if you have writing in your heart, it's a compulsion.

I did not know that the choices I was making, from starting as an instructor rather than an assistant professor, to the lack of an overarching research agenda, to everything from subject matter to placement strategy to the titles of my articles: all was part of a portfolio that I had only one chance to do right. I didn't.

Sometimes a student comes to me and expresses a desire for an academic career. My heart breaks. I have a rehearsed presentation to explain, as gently as I can, that the student already is behind on that goal: by definition, as we are having the conversation at a "tier 4," or bottom tier, law school. An academic career probably is foreclosed because of "poor" choices the student already has made unwittingly, such as having a family and living on a budget.

Mostly, the track is foreclosed by circumstances beyond the student's control: Urban childhood. Weak K12. No jobs for youth. No college counseling. Ailing parents. Delayed higher education. Being the wrong race, ethnicity, religion, or sexual orientation and identity for whatever is in fashion.

Even the brightest and most determined candidate cannot cause 10% merit to control the outcome.

The "mentor" I mentioned at the top: I take nothing away from his merit. But does he appreciate why he is where he is? Does he think that when he submits an article for publication, its merits are the principal driver of an offer? Does he think that when he submits a job application, his hard work is the principal driver of an invitation?

He's a white man who started adulthood before I and in the "Morning in America" Reagan heyday. I don't want to say what college he went to, but suffice to say, it's one you've heard of in connection with Presidents and Supreme Court Justices. Law school too. Maybe he was plucked from child labor in an Appalachian mine to be gifted with these opportunities, but odds are not. He then clerked for a federal appeals court, and then for the U.S. Supreme Court. He diversified the resume with a short stint abroad. He worked briefly in public and private sectors. He won a teaching fellowship in the top 10, and never worked lower: from there to tenure track, named professorship, center director, etc.

Brilliant bloke. 10%. 

But not that brilliant. 60% privileges, 30% right-place-right-time.

I think my writing is very good.

Town asserting 'full-on assault of stink' wins latest round in nuisance feud with hot-mix asphalt maker

Quarry and asphalt manufacturing facility in England.
Richard Law via Wikimedia Commons GNU 1.2

An asphalt plant that residential neighbors blamed for burning eyes and sore throats is a public nuisance, the Massachusetts Appeals Court affirmed Friday.

There's been much hand-wringing over the use, and argued misuse, or even abuse of public nuisance law in recent years, from me included. The sub-subject is addressed in my recent 2 Tortz (2024 rev. ed.) (SSRN), and a recent book by the insightful Prof. Linda Mullenix sits on my desk, patiently awaiting attention.

But Friday's case is a reminder that sometimes, a public nuisance is just a nuisance.

The defendant's property, in Acushnet, Massachusetts, on the commonwealth's south coast and just 10 minutes from my work, was a quarry since the 1890s and an asphalt plant since the 1950s, the court recounted. Then in 2021, owner P.J. Keating (PJK) started operating a newly constructed hot-mix asphalt plant located closer than its predecessor facility to neighboring residential properties. Subsequently, local resident complained to the Acushnet Board of Health of noxious odor and burning eyes, noses, and throats.

The board ultimately sent two investigators, one its own agent and one a hired expert. Both validated the complaints. The board's agent reported, according to the court, that "the odor was 'horrendous,' lasted throughout his fifteen-minute visit, made his eyes water, and left him feeling dizzy for one-half hour after leaving the site.... He testified that at the home of one resident, he rated the odor as level four [of seven], but at another home he rated the odor as a seven for the duration of his visit, a 'full-on assault of ... stink.'"

PJK provided contrary evidence. PJK told the board that it complied with the toughest regulatory standards, and its activity comported with the property's industrial zoning. PJK cast doubt on the credibility of the complainants, showing that a great many complaints came from relatively few neighbors. And some complaints occurred at times when the plant was not operating, PJK submitted. PJK also submitted expert evidence to argue that any odors or fumes posed no risk to public health.

Some of the disconnect might have resulted from the source of odors or fumes being transport trucks rather than the plant itself, the board expert suggested. When the mixing facility was located deeper in the property, the hot-mix asphalt had more time to cool while it was loaded into the trucks. With the new facility, trucks were loaded and hit the road, close to residences, while the asphalt was still hot.

Either way, the problem before the Appeals Court was not really one of merits. After the Board of Health ordered PJK to cease and desist until it could get its emissions under control, PJK sought and obtained relief in the Superior Court. The Superior Court ruled that the board's decision was arbitrary and capricious and not supported by substantial evidence, so annulled the cease and desist.

Hardly so, the Appeals Court ruled: "We think it plain that the record contains substantial evidence supporting the board's conclusion that PJK's plant is a public nuisance." The board might have given witness testimony more credit than PJK cared to, but that's the job of the fact-finder. The board received abundant evidence from both sides, so its conclusion was neither arbitrary nor unsubstantiated.

As a point of interest, the court observed that the board's legal determination must be given some latitude. Quoting the state high court from 1952, "[b]oards of health are likely to be composed of laymen not skilled in drafting legal documents, and their orders should be read with this fact in mind. They should be so construed as to ascertain the real substance intended and without too great attention to niceties of wording and arrangement."

At a deeper level, the simple case is indicative of the challenge at the heart of public nuisance doctrine, a division between the powers of the judiciary, resonating in corrective justice, and the powers of the political branches, resonating in distributive justice.  Public nuisance cases are difficult because they put the courts in the position of enforcing amorphous public policy, here, enjoining the operation of a lawful business.

In this vein, it's telling that PJK relied on its full compliance with zoning laws, industrial regulations, and public health and environment laws. The strategy effectively argues that the question presented already has been decided by the political branches, so the courts should not second guess. If residents don't want an asphalt plant next door, the argument goes, their remedy is with the zoning commission. To burden a business beyond substantial regulation is to invite courts to interfere with the economy: not their job.

In another state, that argument might win the day. Massachusetts courts are less solicitous, or more willing to assert regulatory authority, if there is no plain political mandate to the contrary. The court here agreed with the board that just because asphalt-mixing odors and fumes are not regulated, or are regulated only at extremes—in fact, the EPA deregulated asphalt manufacturing emissions in 2003—does not mean there is no risk to public health, nor even that emissions are not carcinogenic.

One need look no farther than PFAS to show that non-regulation is not necessarily indicative of safety.

The outcome here is bad news for a nasty collateral litigation brought by PJK in 2022 against the Town of Acushnet.

The PJK suit in federal court demands $50 million dollars for losses in stalled productivity at the facility. PJK accused the town of regulatory taking through "a series of deliberate, methodical, concerted, and systematic actions to specifically target Plaintiffs and the Property and to stop the legal, longstanding operations on the Property," WJAR reported in January. According to PJK, "the [board agent] has stated that 'the Town hired him "to make PJK's life a living hell."'" 

Currently in discovery, the federal case is Tilcon, Inc. v. Acushnet, No. 1:22-cv-12046 (D. Mass. filed Dec. 2, 2022).

Friday's case is P.J. Keating Co. v. Acushnet, No. 23-P-629 (Mass. App. Ct. Apr. 12, 2024) (temporary state posting). Justice Peter W. Sacks wrote the unanimous opinion of the panel, which also comprised Justices Meade and Massing.

UMass Law inaugurates comparative law study abroad

UMass Law School has announced a two-week study abroad program in Lisbon, Portugal, in partnership with Universidade Católica Portuguesa (UCP), focused on U.S.-EU comparative law.

I'm quick to call out my employer when it does something bone-headed, so I should be willing to give praise when it does something right. This is the latter.

In 28 years of university teaching, I've consistently had to persuade deans that internationalism matters. Some, not always nor wholly to their discredit, have been so absorbed by the burdens of making the world better locally that they have not had the bandwidth to think about other cities and states, much less countries.

Some have just been fools. Like the one in Arkansas who told me that "our students don't care about that" to reject my proposed partnership with a Mexican school when Arkansas had the fastest growing per capita Latino population in the country, a new Mexican consulate was opening in Little Rock, and we supposedly cared about diversity.

It was a shock, then, to find that the new top dean this academic year at UMass Law, Sam Panarella, believes that international engagement is a vital component of being a good law school. Thanks to his leadership in just his first year as dean, 10 students from UMass Law will journey to Lisbon this very year to study the comparative law and policy of U.S. and EU data protection.

Rhode Island and the south coast of Massachusetts, where UMass Law is located, are home to the largest Portuguese-American population in the United States by a wide margin. So the program is a welcome and logical fit for 14-year-old UMass Law School. The program is made possible, especially for students, by generous support from the Center for Portuguese Studies and Culture at UMass Dartmouth, which does important work in its cultural niche.

We plan to repeat the Lisbon program in future years, in other areas of comparative focus, taking advantage of the varied expertise of law faculty at UMass and UCP. There are hurdles to overcome. But I'm hopeful that this is just the beginning of UMass Law's portfolio on international engagement.

Women 'knew their place' turns out to be losing union argument to justify discrimination in port jobs

Herman Melville boarded the Acushnet at New Bedford Harbor in 1841.
RJ Peltz-Steele, 2022, CC BY-NC-SA 4.0

From the Massachusetts Appeals Court today, a reminder that however far we've come, we've yet so far to go.

Specifically, [plaintiff-appellee] Robar alleged that she was passed over for work [at the Port of New Bedford, Mass.] as a forklift operator in favor of men who not only were less qualified than she was, but who—unlike her—lacked a mandatory qualification for the position. When given the opportunity to respond, the union's then-treasurer (later president and business agent), Edmond Lacombe, supplied a written statement that proved unhelpful to the union's defense. Specifically, among other things, he recounted that the women who were hired for the traditionally female positions "did not complain"; rather, "[t]hey, more or less, knew their place when work was issued and accepted the outcome."

The union was the defendant-appellant in the case, because its referrals to the employer were de facto selections for hiring. Perhaps needless to say, the court affirmed for the plaintiff on the merits. The court also rejected the union's contention that the National Labor Relations Act preempted enforcement of state labor law, rather finding the subject-matter jurisdiction concurrent.

The case is International Longshoremen Association, Local 1413-1465 v. Massachusetts Commission Against Discrimination (Mass. App. Ct. Apr. 3, 2024) (temporary state posting). Justice James R. Milkey wrote the unanimous decision of the panel, which also comprised Chief Justice Green and Justice Grant.