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Tuesday, September 13, 2011

Why The Rule Against VAPs?

A friend who's a VAP somewhere asked me: what gives with the so-called rule against hiring one's own VAPs? 

I tend to agree with the implicit critique of this Ulysses-mast-binding rule. Certainly the argument from authority (ie, what do the fancy schools do) has dissipated. Schools like Chicago or Harvard, in the last decade (if not more), have hired their own Bigelows/Petrie-Flom fellows. Harvard even hired (and recently tenured) someone who actually was a VAP (a position whose title is not all that prevalent at HLS so far as I know).

Nonetheless, the stated or implicit justifications are at least threefold:

a) this way we can really promote you the VAP on the market without having a conflict of interest; 

b) this way the host school's prawfs will be immune from lobbying by the VAP or the VAP's students or friends on the faculty; and relatedly

c) presumably in the course of "maintaining standards," this way we'll spare ourselves the discomfort associated with not hiring the VAP and yet having the VAP "on the premises" still, where s/he will could wreak havoc (Screw you! I'm giving A's to everyone!) or just grouse at us.

The justifications in other words are that the rule can benefit the VAP as well as the institution. 

Of course, a rule that allows VAPs to be considered allows some VAPs to be benefited (the ones who are hired). It may even be that there's plausible deniability available when the current VAPs are not hired b/c the host school can always say, the VAP wanted to go elsewhere or there wasn't the right geographic fit or subject-matter fit. These would all help the non-hired VAP save face ex post, and ex ante, a VAP might want to buy a chance at getting hired by the host school, even if it's not great odds.

From the institution's perspective, the benefit of considering VAPs is that you get to look at people who might already be really good AND interested in your school and location. For schools that are in relatively GU places, this seems like a wise decision, much like being open to hiring couples or polyamourous units if possible :-)

So, does your school have a "rule" or a norm against hiring VAPs, or does it expressly consider the VAP pool as an optional "dating" pool for later hiring? My school, FSU, (note the following aspect of the blog post has been revised) has a rule against considering visitors while they're on the premises (and that includes VAPs) but the rule against hiring can be waived by 2/3 faculty vote in individual cases.  In the last six years, we have done this once, and it wasn't related to a VAP.  While the rule has an exception built in, the "ruliness" of it tends to dominate clearly... perhaps because of the concern that VAPs are no different than  "regular" tenure-track visitors with respect to the downsides of voting while the visitors are "on the premises." But maybe VAPs are an entirely different kettle of fish? I can see why we'd treat both pools similarly based on purported justification c) above. But these rules or strong norms seem to me to be welfare-deflating. Tell me why I'm wrong (or right) in the comments. And why do you think the fancy schools (or some of them at least) have said they'll hire folks who are on the premises? Is the situation very different "down the chain" or have we failed to learn from the "best practices" at the top schools?

 

 

Posted by Dan Markel on September 13, 2011 at 09:00 PM in Blogging, Life of Law Schools | Permalink

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George Mason doesn't have a formal VAP program, but we have had quite a few VAPs over the years. A few became permanent hires, but the vast majority did not, despite our not having a policy against it.

Posted by: David Bernstein | Sep 13, 2011 9:18:21 PM

I'd have to review the facts, but I think that I may have been our appointments chair when we moved away from not hiring Bigelows and the like. It seemed like a big loss to not be able to chase people the market was confirming were very, very good. My line is that once you see hiring on the inside of a law school--any law school I assume--you are amazed that anyone gets hired anywhere. Given that, we didn't need yet another reason not to hire someone who we might actually be able to hire.

Posted by: Randy Picker | Sep 13, 2011 10:15:52 PM

What is a "GU place"? I tried to look it up and found only a lot of unlikely choices. ("Godzilla: Unleashed" was my favorite, but I'm not sure that really characterizes Tallahassee, even "relatively.)

Posted by: Matt | Sep 13, 2011 11:55:52 PM

geographically undesirable, I'd guess from the context.

Posted by: anon | Sep 14, 2011 1:10:16 AM

I'd distinguish between norms and rules here. That a school has a "norm" against hiring may just help avoid a VAP having their expectations disappointed -- the norm can always be ignored in a particularly compelling case, but VAPs come in thinking they need to look elsewhere.

But a "rule" against hiring would make me very suspicious of a VAP program. It's basically saying, we think you're going to be a great teacher and scholar, just not great enough for us. VAPs, of course, aren't offered unselfishly. VAPs may help lower faculty student ratio for US News purposes (unlike adjuncts, visitors "count"), VAPs may also be used to cover legal writing w/o having to hire legal writing instructors who accumulate salary seniority and political clout (not to mention expertise), and to cover subjects inexpensively that tenured faculty members can't be bothered to teach and that may not be the best fit for a busy adjunct due to depth and complexity (tax, commercial, etc.). That a school has a hard and fast rule against considering its VAPs would make me worry that I was being used to serve these kinds of institutional needs, rather than carefully selected for career mentoring.

Posted by: Geoff | Sep 14, 2011 9:12:42 AM

I'm a VAP, and I understand there to be a presumption against hiring me for reason a, above, and so that the tender ego of the VAP won't be further bruised during the hiring process if there's no interest from the host school. I have to say, it would never occur to me to (purposely) wreak havoc, and I think any school that truly thinks that's a possibility should strive to hire less vengeful-seeming VAPs to begin with. But mostly, I think smart schools make it a presumption they can overcome if and when it makes sense; anything more defined than a norm is just trying to predict the unpredictable. It also allows for two big kerfuffles at faculty meetings - the first when the rule is debated, and then almost certainly a second when it makes sense to abrogate it. That's just inefficient.

Posted by: anonvap | Sep 14, 2011 10:18:44 AM

I always heard people express a variation of (a). It wasn't a conflict of interest issue but rather one of being able to strongly advocate for a VAP on the market without having to answer the question "Well, if your VAP is so great, why aren't you hiring them?"

Posted by: FormerVAP | Sep 14, 2011 11:07:45 AM

I am a former fellow from one of the oldest fellowship programs in the country. This institution has such a prohibition against hiring its fellows and, despite its hiring committee commenting that I'd have made a great match when I was on the market, the policy was invoked to preclude me from interviewing. I did not take offense because the policy was in place, although it is clear that this institution had hired its own fellows in the past, at least laterally, perhaps before the policy was implemented. Now, I am on a hiring committee at a school with a new fellowship program and we had this discussion just yesterday. I strongly support at least a norm of not interviewing fellows; this accomplishes the goals above, but also gives the fellow the cover in other interviews to invoke the norm as a reason for not being considered by the host school. Our faculty is too small to absorb a new fellow each year and I think it's unfair to create any such unfounded expectation.

Posted by: untenured anon | Sep 14, 2011 11:13:25 AM

Dan’s havoc-wreaking VAP is a humorous image, but I’m with “anonvap” in thinking it’s a misdirection. (Any prof, including tenured, who would mess with grades for extrinsic reasons should be run out of academia!) I don’t think it would be common for a VAP to have such an entitled-seeming mentality, but more to the point, I think it misses the extent to which many VAP’s are structurally more vulnerable than other faculty. I am especially thinking of the fact that other law-school employers may treat the VAP host school as the primary or at least secondary lens through which to evaluate the VAP’s candidacy (something that wouldn’t apply to the same extent with a lateral look-see visitor).

As some of the other commenters suggest, the choices that the host faculty makes (or neglects to make) about the VAP’s home eligibility can unintentionally magnify this vulnerability on the market in ways that I think the schools need to have thought about with great care. These choices can also significantly shape the quality of the VAP experience itself. I’m with Geoff and the others in thinking that it is best to have, not a prohibition, but a negative presumption, in order to avoid tarnishing the non-hired VAP with other law-schools and to give the VAP realistic expectations (not to say that it should in fact be harder for the VAP than an outside candidate to get hired).

My motivation for taking out the time to write here is to press VAP schools to make sure that they have an *advance consensus* on their VAP-hiring rules and related talking points with the VAP and other law schools, or at least to make sure that any mid-stream ambiguities or disagreements about the rules are kept apart from the VAP.

An example I have in mind: One VAP was hired through a process in which a few faculty, especially the person most involved in the hiring and negotiation, squarely presented the VAP as a “look-see” in which the VAP would be put up for faculty consideration and the desired outcome would be for the VAP to turn into tenure-track. On the first day on the job, however, the VAP was told (by another high-level person) that VAPs were categorically ineligible for the tenure-track.

The VAP’s reliance interest was not a primary objection against the changed position because the VAP had been pleasantly surprised in the first place to get the look-see aspect of the offer and because the faculty who presented the ineligibility position were offering the high-value alternative of a Developmental or Market-Preparatory VAP (as opposed to a Podium-fill VAP) with generous mentoring for the job-market process.

The complications that arose instead stemmed from the fact that continuing differences on the eligibility question were overt and there were at least a few more months of zig-zags (with some faculty viewing the VAP as uppity person to have raised the eligibility question when in reality the VAP didn’t raise it). This sort of uncertainty can impact the VAP experience itself (even when combined with generous job-market mentoring). It may also, as already suggested, have unintended consequences on the market more generally.

I think it would be a ‘best practice’ for the host school to put their (even potentially) look-see VAP through a screening/peer-review process that is similar to that used for lateral look-sees. If the latter are given a file and outside scholarship reviews, then so should the VAP. This review process could be presented to the VAP and to other schools as unlikely (as a matter of general policy) to result in an offer. It could even be presented under the cover of a market-preparatory step--enabling the VAP and the VAP’s mentors to better understand relative strengths and weaknesses. The main advantage of this practice for the VAP on the market would be that at least the hiring-relevant faculty at the host school would be informed about what the VAP has to offer. In this context, the lack of a host-school offer need not be too much of a ‘ding’ factor (even with ‘higher-ranked’ schools) since there are so many factors that go into a hiring decision.

With the VAP I have described, there was word-of-mouth that some schools were suspicious of the fact that some of the host-school appointments personnel did not come across as very familiar with the VAP (even though the VAP got an above-average benefit in conscientious recommenders from among the school's non-hiring faculty). Rightly or wrongly, outsiders expect a school’s personnel to be well-informed about their VAP’s merits. The VAP school’s position on the VAP will never be just one more school’s position. (The VAP in question did end up with multiple offers. This example is only offered as a motivation for all law schools with VAPs going forward to think more about these things that might not be obvious from a non-VAP perspective.)

Having a routinized full review process should help to make sure that this asymmetry works to the VAP’s advantage or at least not to the disadvantage. If this sounds resource-intensive, I think it might be cost-justified from even the perspective of the host school’s hiring interests. Regular review (especially outside peer review) of VAP’s should make it much less likely that a host school would make a mistaken hire that should have been obvious ex ante but for the ‘home-cooking’ bias.

Posted by: Rule Clarity Fan | Sep 14, 2011 1:36:00 PM

A fourth reason to maintain at least a strong norm against host-hiring of VAPs: VAPs may be more likely to share scholarship ideas at earlier, weaker phases with host faculty if they know it will not affect their hiring opportunities. Identifying bad ideas before they lead to 25,000 wasted words is one of the most useful scholarly contributions a senior faculty can make for a VAP.

Posted by: Justin Long | Sep 14, 2011 2:36:55 PM

It appears to me that some VAP programs self-consciously define and market themselves as a type of finishing school or post-doc for talented potential law young lawyers who may be leaning towards going into law teaching in the next year or two. Many law schools with VAPs open these programs up to their own graduates (most of whom they would never immediately hire) with the explicit purpose of helping them get the kind of exposure to legal scholarship and teaching the VAP will need to succeed is the law teaching market, and aim to mentor them and help them succeed. To the extent this is the main purpose of a VAP program, and everyone generally knows that to be the case, it doesn't strike me as anti-VAP to have a norm, policy or rule not to hire VAPs onto the host school's tenure track. For reasons others have highlighted, this could even be in the best interest of the average VAP.

An additional rationale against a host institution having a norm of considering their VAPs for hiring onto the tenure track, especially apropos of the VAP who graduates from the host law school, is similar to the norm or rule many universities and law schools have against hiring their own graduataes or hiring children or spouses of existing faculty without overcoming some other obstacle. Such a rule may be justified on the grounds that it raises the cost of hiring practices that promotes in-breeding and parochialism -- particularly in cases where some faculty member wants to see a former student, a spouse or child, or an intellectual protege hired and uses a VAP appointment to stack the appointments deck.

I also think it is difficult to generalize about VAP programs. At my law school, VAPs are hired by the Dean's office, typically with no input from the appointments committee, no campus visit, and no job talk and interviews. I think it is fairly standard to distinguish this kind of podium visitor (VAP or otherwise) from someone who is vetted through an appointments-like process before being asked to visit, and comes in with an explicit "look-see" (which for my law school would require a vote akin to waiving FSU's rule against consideration of visitors prior to the visit). I could be wrong about this, but most of the programs that I know on ocassion consider or hire their own VAPs onto their tenure track have some initial vetting, at least by a committee of faculty if not the faculty as a whole, prior to making the VAP appointment. If there is no vetting at all before a VAP appointment by anyone other than the Dean or Associate Dean who is impressed by a resume or a reference from faculty member who is mentoring the person, a rule again hiring VAPs (or for that matter any visitor who has not been vetted) strikes me as a prudent way to avoid awkward potential discussions of every single visitor in the appointments process every semester. It also can minimize instances of a Dean or an Associate Dean meddling in setting the appointments agenda with a fresh lineup of VAPs each semester. I certainly find such a rule defensible where VAPs have not been vetted by at least a committee with some appointments related function.

Posted by: anonprof | Sep 14, 2011 5:09:29 PM

A strong reason not to interview one's VAPs has been largely unmentioned, although Justin Long alludes to the idea in his comment. If the VAP is eligible for an appointment at the host institution, the VAP's time at the institution becomes a one- or two-year interview where every interaction with the host faculty becomes an opportunity for assessment. Such a dynamic can significantly impair the candid mentoring that should occur in a quality VAP program.

The obvious response to this point is that a VAP already has reasons to be concerned about his or her reputation among the faculty at the host institution. For example, the VAP will want good references. But, when a faculty appointment is in the realm of possibility, the stakes are different. Ask yourself what sort of issues are most likely to divide your faculty, and I bet the answer will be "appointments." The usual perception of appointments as a high stakes faculty governance issue has to have a significant affect on how a VAP will interact with host faculty.

Posted by: Bob Lawless | Sep 14, 2011 6:16:57 PM

I think "conflict" explains the rule against hiring VAP, but it is a different conflict than that mentioned above. The true conflict is between the Dean and Hiring Chair. Dean's usually hire visiting assistant professors. Hiring Chair's want to protect their turf. If VAPs were allowed to become full professors, power would be transferred from the Hiring Chair to the Dean.

I think it is as simple as that. Or, at least, that has been my experience. Nobody in a law school is more protective of his/her power than a Faculty Hiring Chair.

Posted by: Anon | Sep 15, 2011 8:35:26 AM

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