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Thursday, May 18, 2017

The "Fellowship Track": A Plea for Second Thoughts

Building on my earlier post and the comments on it, including mine: There is some agreement there, which I share, that a major contributing factor to the kinds of standardized rhetorical strategies and approaches we are seeing in a lot of (well-placed) law review articles these days--novelty or "under-theorized" claims that are excessive in quantity and substance; sometimes glib Clever Labels strategies; grand claims about the article's importance; overbreadth in treatment; efforts to turn (or portray) what might have been successful and modest "base hit" pieces into home runs, thus making it difficult to dig through the grand claims to find the valuable substantive core and raising the likelihood of fly balls; and so on--is the move to a fellowship model in training and hiring law professors.

As I say below, I think there are reasons for this move and that it has a number of virtues. But I think there has been too little consideration and open discussion of the model's flaws and dangers. In particular, those who run these programs and train the fellows at the high-ranked schools that generate many fellows, including the most successful ones, have not been terribly vocal in discussing what they do and its costs and benefits, whatever internal discussions they may (or may not) be having about them. That's especially dangerous because when it comes to hiring, faculties often consist of a few influential opinion-movers and a fair number of more passive voters, many of whom neither follow the trends closely nor think much about them. They also tend to follow the lead of the elite schools. That means a hiring trend can build easily and without much discussion, especially if the opinion-movers at the hiring schools are (as they sometimes or often are) just chasing the metrics or internalizing trends in the community, without second-guessing these criteria or the trend itself. And there a couple of other reasons, also covered below, why this trend can build without much second-guessing, especially public second-guessing.

One of my favorite movie quotes--I've used it in an article or two--is from Miller's Crossing: "I'd worry a lot less if I thought you were worrying enough." We're not worrying enough about this trend. I emphasize again that there are fair reasons for this model to develop. I'm not trying to throw out the baby (or the babies--the entry-level candidate/fellows themselves) with the bathwater. Criticizing an approach is not the same as urging that we get rid of it entirely. But we do need much more thinking and discussion, and more criticism, of the burgeoning fellowship model. 

As always, it's a long post. I've spared you by giving the thesis above. Read the rest at your leisure and at your own peril. Comments welcome.  

 The fellowship model can, on the whole, be seen as a kind of substitute or proxy for Ph.D studies in other disciplines. It doesn't serve all the same functions; perhaps most prominently, it's not clear that elite fellows at law schools generally use their time to acquire and absorb a canon, in legal scholarship generally or in their own field. But it does provide some of the other functions of a doctoral program. Perhaps most centrally, going into a fellowship program, one that increasingly lasts longer than one or two years and extends into quasi-post-graduate berths, serves the same winnowing and signaling function that a doctoral program does. A well-credentialed and potentially talented young lawyer who takes the fellowship path signals a strong interest in a career in legal scholarship and teaching, partly because he or she shows a willingness to take an income hit for the sake of a long-term academic career. (This also, on the margins after accounting for stipends and scholarships, makes it less likely that the entry-level population will be diverse across a range of levels, and more likely that it will be either relatively financially well-off, or that it possesses enough elite social capital to know about the fellowship path in the first place and successfully obtain a fellowship, or both.) Whatever earning capacity as a lawyer one of these fellows might have had if they remained in practice while writing on the side (which is difficult), they signal a willingness to abandon that path in favor of the academy. Indeed, by making themselves less employable in legal practice--why hire a former A student with a court of appeals clerkship under her belt as an associate when that person has been out of practice for two to five years? There are plenty of A or B students with clerkships who have remained in the actual practice of law--they show a willingness to burn their bridges out of the legal academy. That makes them surer bets for hiring law schools, especially given that tenure votes no longer serve a significant winnowing function for law schools. 

And, of course, they do research and writing while serving as fellows, learn about their subject (as an academic subject, at least), and sometimes publish superbly (by standard if flawed criteria). They also gain the time and resources to do empirical work that's difficult to do as a junior scholar working toward tenure and that many law schools are looking for in candidates. As or more important, they learn the "talk" and "walk" of the academic culture, and often get significant mentoring and advice about job-talks and other elements of the hiring process. By the time they go on the market, they look, talk, and walk like a law professor, have a better publication record than many existing professors, and have a demonstrable commitment to staying and working productively in the legal academy over a long time.

I won't rehearse the standard practical-vs.-academic or practice-vs.-theory arguments here. The fellowship model, and the law school hiring model generally, has routinely been criticized on this basis on the comment pages of every law blog. Without taking a strong position on that standard debate, I am glad the issue has been and continues to be raised, if not always terribly subtly or charitably. It more than deserves a place in the discussion. Happily, others have and will continue to cover that ground--and they should.

I will say that, keeping that debate in mind but in the background, all the elements of the fellowship model that I have described above, and no doubt other factors, are arguably positives. Although there is a tremendous amount to be said for hiring scholars who are also proven lawyers with serious practical experience and may keep a finger in that pie, there is also--to the extent we continue to insist on standard scholarly/academic criteria--a higher potential failure rate in such a crop. Entrants from such a pool may also take longer to get on their feet, while fellows are generally already well-published and well-prepared for the job. And, for historical reasons at least, law schools worry about hiring people who are "retiring into the legal academy," and who may turn out to be (on some measures) deadweight on the faculty for decades. Law schools have experienced many interviews and job talks by non-fellow candidates who are still very wobbly by standard measures. By contrast, the average level of quality and confidence of well-trained and mentored fellows is very high. 

I do not think any of these concerns are knockout punches in favor of the fellowship model or against hiring more practitioners, for several reasons. First there are the standard arguments in favor of practice and practical experience, which are out there and need not be rehearsed here. Then there is the question whether the "success" and "failure" we worry about are being judged according to faulty criteria. A practitioner-teacher may provide plenty of value to a law school and its students over decades, whether he or she publishes much or not. That's hardly "deadweight," although clearly some faculty, either of the practitioner or the scholarly model, do become deadweight. And one response to all this could be to actually take a chance on more non-fellow types, and use meaningful tenure votes to winnow out those who turned out to be bad bets by standard criteria, instead of acting as if anyone who has been hired and has managed to turn out three or four okay articles and average teaching evals has some kind of right to permanent employment. My basic point is that there are reasons to think well of the fellowship model. That is certainly true as long as we hold good scholarship to be a duty and desideratum in the legal academy, as I believe we should (which does not by any means rule out changing the mix to include more practitioner types). Let's give the fellowship model its due.

What, then, are the downsides, other than the standard practice-vs.-theory debate? There are quite a few, of which this is a decidedly non-exhaustive list. Others should feel free to supplement it. Some of them are "hard" points, and some are "soft" or more impressionistic or cultural points. 

1) Given the possibility that those who don't succeed in getting jobs in the legal academy after going the fellowship route may suffer diminished job prospects by taking themselves out of practice, we might be concerned about that, even if we treat this as a knowing and voluntary choice on their part. That's especially true if hiring numbers stay low relative to even the fellowship applicant pool. (As an aside, we certainly should have doubts about expanding fellowship programs, especially outside of the top five or ten schools. Those schools lower down the chain that have such programs might consider using them mostly to select and groom a couple of their best graduates with a potential interest in and talent for teaching, with an eye toward hiring those fellows at their own schools.) 

2) We might worry about what we are teaching these fellows. I will say it again: Every member of a hiring committee, and indeed every voting member of a law faculty, as well as the candidates themselves, should read Martha Nussbaum's classic short article Cooking for a Job: The Law School Hiring Process. Nussbaum asks whether the process is "effective in identifying good scholars, as opposed to good rhetoricians." She is concerned with the application of "nebulous standards": "items such as 'brilliance' and 'star quality' are frequently mentioned," and such standards are hard to pinpoint and subject to distorting influences. The process, she writes, favors "a certain type of individual, who combines obsequiousness with glibness and aggressiveness," over the reticent, shy, contemplative, but careful and sound scholar. Promising scholars may flunk "lunch," or the job talk, because they don't display a command of the bells and whistles of academic lingo or give a polished performance. Presciently, Nussbaum worried that such a process would "produce[ ] young scholars who have a confused sense of what their purpose is. Are they supposed to be good rhetoricians or good scholars? Are they supposed to spend years working toward a difficult truth, or to come up with catchy phrases and slogans that will market their ideas to an audience?" 

All these things are in evidence in the fellowship path and the performance of fellows in the hiring process. The careful mentoring, honing of the job talk paper, and multiple rehearsals of the job talk and interviews has resulted in an increase in the superficial average quality of our candidates. But many of the virtues we see are indeed of the rhetorical sort. Answers to tough questions are well-rehearsed and sound good. But are they good in substance? I routinely see well-trained fellows at job talks who answer one set of (supportive) questions by making grand claims about the importance and sweep of their recommendations, and then respond to critical questions about the implications or applicability of a paper by emphasizing the suddenly narrow scope of their paper and denying that it has any broader implications, or who appear to have never seriously considered those implications. Surely such answers suggest the surface-level strategics of the talk rather than a capacity for deeper reflection. Some of this is tied up with politics, but that is not only a matter of the actual politics of the fellows (generally one-sided) or their mentors (same, almost certainly exacerbated by the rise of fellowships in "centers" or programs that are quite explicitly political and favor only one set of views or policies, and whose fellows are treated at some level as shock troops being prepared for the legal academy). It's also, in part, a strategic decision to appeal to the legal academy's mostly liberal and reformist views. If the point of your paper is to recommend that the courts wield an enormous hammer, you ought to be prepared to consider when and whether it should or inevitably will be wielded for other purposes. I rarely find candidates who are willing to concede openly, at the risk of alienating politically like-minded members of the faculty, that the argument they have developed might be applicable for very different reasons by very different people, and who are then willing to discuss why the proposal is still worth it or indeed why that possibility should be welcomed. If more faculty at job talks were willing to cut to the jugular vein of a job talk paper (they often are not, or lack the expertise to do so; they may not even have read the paper), they would get at these issues better and demand deeper answers. Often the answers are superficially satisfying but not deeply serious. As I wrote, a lot of job talk papers coming out of the fellowship program are finely honed and look extremely impressive, but sometimes are seeming home runs that cleverly conceal a paper that is either a failed pop fly or a base hit with grandiose trappings.  

3) Tied to this point is the apparent reticence or, perhaps, lack of reflectiveness of the directors of the fellowship programs themselves. I want to tread carefully and not judge prematurely. Perhaps these directors (although they change often enough to hamper that sort of reflection) are thinking carefully about these concerns. But they certainly are not talking much about them, and certainly not openly and with the wider legal academy as an audience. It is, of course, possible that they are not reflective on these points, or that--especially as the legal academy comes to be filled with those who have already come through this process and internalized its values--they are not aware of them or deny that they are concerns. Add to this the understandable desire that their fellows should succeed in getting jobs. That means they will give whatever advice works in the hiring process. Over time, that advice, even if it was initially strategic and self-aware, will gradually and osmotically become part of the worldview of those directing and going through the programs. (Every fellowship program and mentor should devote some time to pushing their fellows to think about why all the advice they are getting may be wrong or dangerous for scholarship and teaching itself, and urging them to reach their own judgments when the time comes for them to make their own career decisions and vote on job candidates. Do they do this?) Elite law schools and professors, in my view and my partial experience, often have a fairly narrow range of focus and experience, and take for granted the standards that got them and their fellows where they are. Many or most of them know much less about life in the academic trenches at lower-ranked law schools than one might imagine. (Certainly my experience is that their advice to candidates choosing among job offers suggests just that.) It is easier for them just to see the successes and not count the externalized costs. They may lack the information, basis, or incentive to second-guess what they are doing and the kinds of lessons they are instilling. They may prefer "brilliance" over soundness because their own environment prizes brilliance.

4) As what I've said so far suggests, I'm worried in a more impressionistic sense about the effects of all this on the overall culture, both of the fellowship programs themselves and ultimately of the legal academy. As I wrote in my last post, I think it's only superficially cynical to think that most professors know what the game is and know that they are playing it, without buying into it, although a number of people have written to me to say just that. Such a position is possible, but contrary to human nature and difficult to sustain over time. Eventually, people internalize and rationalize the values they have been taught. They stop thinking about novelty paragraphs as a mere tactic, and grow to think of them first as a necessity and then as a virtue. They first over-value glib "brilliance," and then think of it as a sound criterion. It's not that they disdain substance, but it becomes easier for them to focus less on it or to forgive papers that are longer on brilliance than on soundness. That happens first at the level of the fellowship programs and their directors, and then at the level of the fellows they indoctrinate. Then those fellows seed the academy, and, lo and behold, many of them apply the same standards and replicate themselves when hiring new candidates. They treat the strategic choices they made to get a job as goods in themselves and as positive desiderata in examining new job seekers. Nussbaum's concerns become a cultural virus, and eventually just the way things are.

I said above the fold that there were "other reasons . . . why this trend can build without much second-guessing, especially public second-guessing." Let me build to my conclusion with some of those reasons. First, there's the Wizard of Oz problem. The elite schools that have fellowship programs and mentor fellows are offering strategic advice for fellows to help them get jobs, according to the criteria that law schools are likely to apply--or the criteria they think law schools are likely to apply, but this ends up becoming a self-fulfilling prediction. If they were to talk openly about some of these stratagems, let alone the problems with them, it would hardly benefit their fellows. The first rule of Fight Club is, well, you know. If they are reflective about these concerns, and I don't know whether they are or not, they have a strong incentive to keep it to themselves.

Second, the hiring law schools want to look good with their hires in everyone else's eyes. (Faculties also want to look good in their own eyes, and individual faculty members want to look good in their colleagues' eyes.) This favors taking the standard existing criteria for granted, no matter how much agreement there is that these criteria are flawed. Let me build on this with a hypothetical. 

Let's say almost everyone agrees that substance matters more than placement and that placement is a poor proxy for substance. They conclude that Candidate One, a fellow who has published in Virginia and NYU (these are randomly chosen top law reviews), is doing "brilliant" work but that the work is better at appealing to elite law review editors than it is good in itself. Moreover, Candidate One has given a nice polished job talk and has great recommendations from impressive mentors. By contrast, Candidate Two, who is in practice and has few or no influential mentors but has been noticed positively by people in her field, has published in Baylor and a tertiary Texas journal (again randomly chosen), and is more halting in her job talk. But there is real soundness behind the pieces, which are (commendably) narrow but excellent and suggest the promise of more genuinely valuable work being done on the subject. And the "halting" answers suggest a genuine willingness to grapple with real questions and to revise one's views as appropriate, or to acknowledge the costs of one's approach and/or be less bold and more narrow in one's conclusions. Which candidate to hire?

Hiring Candidate Two won't make a splash when it is announced. Candidate One is likely, because she is skilled at the relevant tactics and has active (and sometimes only semi-scrupulous) mentors who will lobby the law reviews, and because of the Matthew Effect, to continue to place well, although she may also continue to have a hollowness at the core of her work. Candidate Two, having started with lower-ranked journals, may remain ghettoized there, no matter how good her work actually is. Faculty members are often insecure about judging candidates, especially candidates outside their field. The fact that the elite world is ready to reward Candidate One, that she has multiple offers, and that this does after all suggest she will do very well by standard criteria, all may push the voting faculty toward the "safe" choice. Influential members of their own faculty may share a belief in the standard criteria and be highly concerned with metrics, US News rankings, and other elite measures. They will find it easy to ridicule the choice of Candidate Two as damaging to the law school's reputation and future in a competitive and reputation- and ranking-obsessed legal academic culture. Even if the faculty at this school strongly agree that substance matters more than placement and that "brilliance" is a snare for the unwary and status-obsessed, they know or believe that the rest of the legal academy thinks otherwise, and want to look good in the eyes of that community. These again are reasons to make the "safe" choice of Candidate One. And once one moves to actual hiring votes between two competing candidates, the discussion usually becomes polarized and exaggerated. The virtues of Candidate One will be exaggerated and extolled and her flaws, which are harder to pin down by reference to conventional external criteria, will be downplayed and excused as a function of youth. Candidate Two will be exaggeratedly dismissed as an also-ran or an unimpressive hire. Safety, insecurity, search costs, and peer pressure will lean in favor of Candidate One and against Candidate Two, especially if the knowledge that almost everyone who reaches a tenure vote succeeds makes it less attractive and more costly to take a "chance" on Candidate Two.      

Finally, and fascinatingly to me, there is the question of how such public discussions would be seen as affecting the well-being of the fellows themselves. Imagine writing a highly critical piece or, let's say, a post on Prawfs about the glibness and "brilliance" of candidates coming out of the fellowship market, and the dangers of such an approach and the criteria and standards of judgment that undergird it. Even if, as I have here, one makes clear that many of these candidates really are good and that the fellowship model really does have much to recommend it, the author can easily worry about whether he is sending a message to his recently hired colleagues or people he is about to meet in the next hiring season. I value all my new colleagues, whatever standards were involved in their hiring and whatever virtues or flaws they may have, and want them to feel welcome and supported. I may become good friends with them. That's even, or perhaps especially, true of those colleagues I might not have supported in the hiring process. Once the vote's over, everyone should rally round and do their best to support, encourage, mentor, and advance the career of the new colleague. I consider that a strong duty, and I think I have generally met it. But I also believe in the value of standing outside our hiring processes and considering and openly discussing our culture and the imperfect standards and approaches it embodies. That's a big part of why I still (occasionally) blog. If I don't want to risk offending a new or potential colleague, the greater incentive is to just keep my mouth shut and play the game, or at least allow the game to be played without talking about it. (Other than through cynical and knowing face-to-face gossip, which is plentiful and deplorable in the legal academy. Full many a candid, sometimes nasty but often informative, discussion is born to bloom in the faculty lounge and die unheard by the wider world.) And I am, I think, slightly more willing to air this kind of dirty laundry than many of my colleagues at large, some of whom are reluctant to do so, many of whom worry about offending others, and more than a few of whom are not especially reflective about these sorts of issues in the first place. Some might also worry that if they talked openly about these issues, mentors and program directors at elite schools might dry up the pipeline to their school, or that they themselves will suffer if they ever come up as lateral candidates or otherwise want to benefit from friendships and connections to the elite schools. I would like to benefit from those too! The academy fancies itself willing to speak truth to power, but that much less often embraces academics speaking about their own community and social and professional networks; then one suddenly hears a lot more about prudence and politics and much less about fearlessness or candor. The smart money and the prudent choice counsel silence, even for those who are interested in and self-reflective about these issues. 

I'll close where I began, by emphasizing that the fellowship model has much to recommend it, that the average level of quality and standardization in job candidates has increased dramatically since its rise, and that I am not urging us to get rid of it. Even some of those programs or individual fellows who exemplarize some of the flaws and concerns I have aired here are excellent candidates and strong scholars. Some of them have all the virtues and few of the flaws, and some have some of the flaws but many virtues, with the hope that the flaws will straighten themselves out with time and experience--although, as long as our culture doesn't change significantly, I'm worried that the latter is less likely to happen. Sometimes, maybe even most of the time, Candidate One actually is a better choice than Candidate Two.  

Nevertheless, there are genuine concerns to be raised about the fellowship track and the effects it may be having on the broader legal academic culture, especially when combined with such pre-existing factors as status and rankings obsession, the law review process, the outsized influence and often narrow perspectives of elite schools, and the culture and mechanics of the hiring process and of law schools themselves. Without treating the fellowship track and its rise as all good or all bad, we--and that includes the schools and individuals that run these programs themselves, and the fellows too--ought to be carefully and publicly toting up their costs and benefits, thinking and talking about their relationship to and influence on other aspects of the system, and considering whether there are ways to get more of the benefits while dealing with some of those costs. We have nothing to lose but our reticence. 



Posted by Paul Horwitz on May 18, 2017 at 02:45 PM in Paul Horwitz | Permalink


I hate to write a brief and glib response to a long and thoughtful post but here it is anyway. The fellowship track has become the essential default track primarily because of the simple competitive ratcheting-up of the expectations of how far along in their writing career an entry-level candidate will be. If one wanted to change this (e.g. change it back to how it was 20 years ago), there is no clear way to do that. A candidate with a couple of years of writing serious (and good) articles under their belt is, by almost any plausible set of criteria we might adopt today, a stronger entry-level candidate than someone else who has not yet had a chance to do this and will instead have to do it during their first years of teaching.

It seems to me that once some threshold number of these fellowship positions came to exist, their occupants would predictably come to dominate the entry-level market because, even regardless of any signaling effects and so on, the candidates have more of an opportunity to produce whatever kind of work it is that they think they ought to be producing. Even if we change what is valued, having a fellowship will still buy badly-needed time to produce whatever is now valuable.

To be clear: I'm not trying to suggest we should just shrug and not have the conversation this post is trying to start, which is an interesting one. But I am trying to say there's a big reason why these programs are likely to continue their dominance, regardless of any changes in the distribution of views about what kind of scholarship entry-level candidates ought to be producing.

Posted by: Joey | May 18, 2017 5:58:09 PM

Machiavelli said it best. Once an institution or institutions (in this case law reviews and law schools) become corrupted (i.e. unrealistic expectations of article impacts) there's really nothing that can be done to stop the corruption.

The only thing that *might* work is a complete purge of the system and those in it. Machiavelli was smart enough to know that this was not likely, and might not even work. Thus, the only thing to do is allow the corrupted institution(s) to remain corrupted until they eventually die.

Posted by: YesterdayIKilledAMammoth | May 18, 2017 11:29:53 PM

Joey, I don't think your response is glib and I think your second paragraph is especially interesting. As I said, and notwithstanding the second comment, which I enjoyed although I'm happy to keep working to bring issues to light and hoping for but not expecting the best, I'm not pushing for an all or nothing response; just greater awareness and some more candid discussion. I do think that even if what you say is right and most of our current hiring decisions rely on the fellow pool, that 1) we should be aware of the dangers of the overly polished talk and candidate and worry more about the advice they receive. And we should at least sometimes look past the polished candidates for those who may be rough but are also independent and promising and not harmed by the downsides of standardization and homogenization.

Joey, it also seems to me that if one of the advantages of fellowships is the luxury of time, we might make different and perhaps better use of that luxury. Plenty of fellows are still not wholly conversant with a canon that they have time to learn. That time and the luxury it affords could, as I briefly suggested, also be used to encourage them to think about and against some of the strategies they are being indoctrinated into. Finally, doctoral students in other disciplines must write a dissertation but then have time to polish that work into a book or articles. Maybe we should encourage that, and not expect every fellow to have three polished and published standard-issue law review articles. Of course these are just starting points for discussion. But if we have a new regime, we should be conscious enough of it to use it suitably, and not forget the possible virtues of less polished candidates who bring other qualities to the table.

Posted by: Paul Horwitz | May 19, 2017 12:26:56 AM

I have to say I feel pretty uncomfortable with all this. You have, in general terms, said that recent crops of fellows are overly polished, hypothesized that their influential mentors are lobbying law review editors for prestigious placements for their articles, suggested that these fellows are ignorant of relevant canonical bodies of literature, overselling their ideas, playing to the liberal peanut gallery, are pretending their work is novel and interesting, and are probably unable to defend the "jugular veins" of their papers. You have suggested that the ones most likely to get hired may have hollowness at the core of their work. But because you obviously won't here call out specific fellows or specific papers by name, the cloud hangs over all of them. I do not like this sort of thing. If you want to critique a paper by a fellow or new law professor, go ahead and do it. If you don't want to do that, either because of professional etiquette or because you don't know enough about the area to critique the article, then don't. But to make these kinds of foggy, generalized slanders of a whole group of aspiring scholars is just not fair.

Posted by: TaDa | May 19, 2017 12:38:07 PM

I normally don't inject myself into these sorts of debates, but I figured I'd share my perspective since it takes the conversation in a different direction. I am a junior tenure-track faculty member who completed a fellowship, and for what it's worth, I also have a PhD. My fellowship not only stressed scholarship, but also stressed teaching and service. I taught several different types of classes, had many different scholarship and teaching mentors, and was involved in the institution in different ways for service.

One oversimplification of the practice v. non-practice dichotomy is that it overlooks which candidates have actually thought about pedagogy and honed their skills to effectively teach. The skills that it requires to persuade a jury or give a strong job talk in front of a group of faculty members is not necessarily the same set of skills it takes to be comfortable in front of a class and present material in a straightforward way that prepares them for the bar exam.

Now, I'm not saying that all fellowship programs give the proper mix of scholarship, teaching, and service - and yes, many fellows are "overpolished" when they go on the market. But coming from a program that did provide this mix, I have no doubt that I would be struggling as a junior faculty member without the opportunity to have a prior test run during the fellowship of having to balance scholarship, teaching, and service. I hope that we don't treat all fellowship programs the same and actually look at the nature of the experience that each fellow has obtained during the program.

Posted by: anon | May 19, 2017 2:02:55 PM

The Fellowship model also favors those with family resources (money) over those struggling with law school debt, and those who are geographically mobile (more likely to be men, more likely to be single and childless) over those who are less so.

Posted by: David Bernstein | May 19, 2017 5:40:23 PM

Beyond that, I see a lot of "polished" candidates who have been trained not to say anything too controversial or interesting. The average quality of candidates has gone up, but I find it's much harder to find the quirky scholar with real insight--the risky "A" over the safe B+; either the process must be spitting them out, or homogenizing them.

Posted by: David Bernstein | May 19, 2017 5:42:01 PM


I think that there's a lot worth discussing about the fellowship model's pros and cons, but I have a couple of concerns about your post and the framing of the issues (and apologies for the Horwitzian length of the comments):

1) Teaching: echoing anon @2:55's comment, I'm surprised by the absence of a discussion of pedagogical training in your post and your response to Joey's comment. Since a law professor's core function is teaching her students, I'm curious how you view fellowships as a form of teacher training. It seems that a critical benefit of a fellowship program where fellows teach is that the fellow isn't starting from square one once she gets a tenure-track job. Certainly, having more time to write and learn a literature is important, but I take it to be an advantage of many fellowships (and most PhD programs) that a jr. prof's first teaching experience isn't teaching her first day of a large doctrinal class. I share your concern that papers, methods, etc., may be too polished or homogeneous (as Orin noted on your law review post and as David notes above), but I don't see how getting *teachers* who are more polished is a bad thing.

I think it's worth considering: (a) whether fellowship programs are training fellows to teach effectively; (b) whether fellows, practitioners, PhDs, or others tend to make better teachers; (c) whether schools should move beyond teaching evals in trying to assess teaching efficacy; and (d) whether hiring committees value teaching sufficiently. But I think teaching needs to be a part of the fellowship discussion.

2) Focusing on Fellows v. Hiring Committees: also echoing a theme raised in a couple of the other comments, I think that the issues you're identifying speak more to schools and their hiring committees than to fellowship programs. That is, if hiring committees value article placement over article quality, fixate on collecting as many fancy credentials as possible, or use evaluative metrics that harm folks coming from practice, that's on the hiring committees. I, personally, think that those are problems with the entry-level hiring practices, particularly in light of the distributive concerns that David notes and the homogenizing concerns that you and he both note. But I think it's unfair to blame fellows (or fellowship programs) for responding to the signals sent by hiring committees. So much of the job talk and the interview process is performative. It's fair to say that it shouldn't be, that faculty should ask different questions at the job talk, or that candidates should share working papers and be at an earlier stage in the process when they present their paper. But hiring committees, not fellows, are the ones in position to change those norms.

Happy to talk further offline.

Posted by: Hamilton Burger | May 19, 2017 6:53:42 PM

Although I agree that accepting a fellowship may mean that you have to uproot your family, and therefore, the fellowship model may advantage those without family constraints, it is a gross generalization to assume that many fellows come from money. I for one did not and I'm still paying off 6 figure law school debt. Many fellows, particularly those who did PhDs, did not practice at a big firm where they made a six figure salary, or came from public interest jobs where they never made a six figure salary. Many current and former fellows I know are still paying law school debt and are on the PSLF program.

Posted by: anon | May 19, 2017 7:03:03 PM

No one "grossly generalized" that many fellows come from money. I only said the model advantages those with money.

Posted by: David Bernstein | May 20, 2017 11:27:57 AM

As TaDa suggestesd, the post and a few of the comments above seem like broad ad hominem attacks on the quality of recent hires. As Burger notes, these are the people in academe least able to influence the standards for entry level hiring in the field. So it seems less productive and more aggressive to cast aspersions junior profs and job market candidates.

I say a more productive way forward might be to brainstorm affirmative standards for what the ideal candidate should look like. What, exactly, makes a good "Candidate B" type? Even if fellows are often flawed in the ways OP describes, the real question is who should be hired and why? Norms have changed before for new hires, they can continue to evolve.

Posted by: anon | May 20, 2017 11:40:35 PM

I decided to take a position at a third tier school rather than a top fellowship for monetary reasons a few years ago. I support two kids and could not justify the financial stress of the fellowship. I understand that the decision makes it highly unlikely that I will ever move up to a top school. In fact, my scholarship does not place as well now as when I was clerking, even though I think it is better. However, I am still in academia, so a few of us are still being hired without fellowships.

Posted by: Anonprof | May 21, 2017 6:24:03 AM

I appreciate the comments, including the critical ones. As I hope I made clear, my main goal here is to actually have an open discussion about the pluses and minuses of this model, and about some of what I know faculty are talking about privately. I doubt legal academia is *radically* different from other institutions in this tendency, but trends can build and become entrenched fairly easily, without anyone taking a look at them candidly and consciously. (It's not radically different, but I think there are factors that sometimes make legal academia worse than some other institutions about this.) Surely there is some value in actually bringing things to light, voicing concerns openly rather than behind closed doors and in face-to-face gossip, looking at the pros and cons, and thinking about ways to best channel the trends. I think it would be especially useful to know that the directors of these programs are aware of these issues and aware of how their candidates are being received beyond the raw hiring numbers; *if* candidates are starting to be viewed as showing too much standardization and too little willingness to say displeasing things in the interests of sound work, that's something they ought to know. Conversely, it would be helpful to know how they view their strategic advice in light of absolute academic standards. A primary immediate goal of fellowships is getting fellows jobs, to be sure; but another and I hope equal goal is training them well as academics. The rise in quality of the talks and papers, and of the work of these young academics, surely says something positive about that, but that shouldn't be the end of the discussion.

In all of these things, more light and more discussion would be valuable. But, as I hope I made clear, I *do* think there are positives, I am *not* interested only in considering flaws and not virtues of this path (although the absence of public discussion of those flaws makes it necessary for *someone* to air them), and I am *not* arguing against this path altogether. When I said that many of the people emerging from the fellowship program are "excellent candidates and strong scholars," I meant it. I think a fair reading of my post--which, admittedly, is so long that the bits and pieces of this sort along the way might be overlooked--goes against the idea that this is "slander" or anything of the sort.

In this context, I am happy to agree in general terms with Hamilton Burger that more could be said about the positives than I have done in this post. I gestured at that in noting that there were "no doubt other factors" that should be viewed as positive aspects of the fellowship path. I clearly have no objection to adding more detail to that catch-all phrase. I also agree that the focus should not be on fellowship programs alone. My view, and I think it is present in the post, is that all this is tied into other issues in legal academia: the effects on scholarship of trying to "sell" articles to law students, the obsession with a narrow band of credentials, the relative ease of tenure as compared to hiring, the attraction of polish and shine, etc. And a lot of this--all of it, ultimately--is down to hiring committees and voting faculties. My last post made my view on that clear, or as clear as I usually get. I don't think that's enough for a whole response. Given that this aspect of the academy is regularly discussed and the fellowship path is not, I think it's important to air these issues. I do think the role of elite schools and mentors within them is both important and often non-transparent, for some of the reasons I discussed in the piece (unwillingness to say critical things about soon-to-be colleagues, unwillingness to endanger the pipeline, unwillingness to hurt one's own advancement by saying critical things about the elite schools that everyone wants to end up at or benefit from contacts with). It's valuable to discuss the things that are discussed less often. But I certainly don't intend to ignore the other actors. To the contrary: I hope that raising these issues will make faculties and hiring committees more self-aware and more willing to re-examine what are often only half-conscious choices.

A final few words on the "slander" and related points, because I'm most personally sensitive to that line of objections. I wrote in my post that I worry about a situation in which the prudent course is to keep one's mouth shut. Perhaps because the legal academy is relatively small--and the pipeline and social network for getting jobs and getting ahead is even smaller--than in other disciplines, I do think the legal academy is worse than other disciplines in discussing some of these issues openly. While I acknowledge the worries about being unkind to fellows, I think our institution would be worse if everyone said nothing--which, in practice, *doesn't* mean keeping one's mouth shut; it means gossiping about it on a face-to-face level, often with less care and nuance and with even less regard for individual fellows, and without anything productive occurring as a result. I am happy to take responsibility for upsetting people, of course. But I think we are better off with more candid discussion of a real phenomenon than with a polite silence that a) still involves a bunch of gossip and b) doesn't allow for a more careful and clinical discussion of the broader issues.

For several reasons, I don't think the answer is either to "call out" individual fellows and talks or say nothing. First, I don't think the "problem" has to do with individual fellows. I'm interested in the structural and systemic issues, much of which have to do with the training, not the individuals. Second, I think there is plenty of consensus--whether it is discussed openly or not--on general concerns, so that one need not be harsh about individual fellows. The kinds of concerns, and reactions to job talks, that I've mentioned are concerns I've heard from a variety of other faculty members at plenty of schools. Third, it's not a question of terrible individual fellows with terrible papers and job talks; they're often excellent fellows, papers, and job talks, but displaying certain general tendencies that ought to be of concern. Where the concern is not with the quality of individual fellows but with tendencies, no doubt significantly contributed to by the advice they are being given and the results in the job market, that may not be optimal for legal scholarship or the legal academy, I think a rule of either criticizing individuals or saying nothing at all is a poor one. But, again, I'm happy to take responsibility for the post.

Again, I appreciate the responses. I do think that even at this length, I didn't say everything that could be said. I wanted to write at length because I wanted to give a general canvassing of the issues and acknowledge the positives as well as the negatives. Even so, clearly more could be said on both sides of the ledger and about the systemic issues and the reasons for them, and some of the comments do just that, for which I'm grateful. My ideal would be to see more and better discussion of this, in places like the Journal of Legal Education or the AALS annual conference as well as law blogs, and for more of it to be about considering the overall pluses and minuses of the fellowship path and not just toting up trends or giving "how to get a teaching job" advice. That would certainly include disagreement with some or much of what I wrote here, although I do think the concerns I voiced are more widely shared than the state of public discussion suggests. One person and one post can only do so much. Obviously, I'll read any further comments with interest, while hoping this is not the only place that the issues I tried to discuss here are raised.

Posted by: Paul Horwitz | May 21, 2017 11:21:59 AM

I think Paul's criticism here to be directed at hiring committees and faculties, not at candidates. Candidates are doing what is rational to get a jo. It turns out that taking a formulaic approach tends to work, or at least it helps more often than it hurts. The problem is with the hiring committees and faculties that rely on the formulas -- a reliance that may not lead them to make the most accurate assessments of junior faculty candidates -- not with the candidates that use them.

Posted by: Orin Kerr | May 22, 2017 3:39:23 AM

Agree that the problem here is hiring committees, and the problem is much wider than legal academia. Why do so many our students try to do law review? For the most part, because they are modeling the successful candidates for law firm jobs and clerkships. Incidentally, there are valuable skills to be gleaned by the process, even if their reasons for entering it are less than ideal. Just the same, recent grads interested in academia model the successful candidates that went before them: reading their articles and using them as models, entering fellowships, rehearsing job talks.

Some of the aspersions cast in this piece are doubtful. I emerged from a top fellowship, and I never heard of anyone's mentor placing their job talk in a tip-top journal (although I have heard of some of this kind of thing outside the T14). I hate to think that bitter faculty are out there assuming that fellows who place in top journals are engaging in such behavior, rather than playing the admittedly flawed law review game like everyone else. I am happy to be on a faculty where no one cares if the piece is in Yale or Nowheresville. If more faculties were devoted to carefully reading and debating entry-level pieces, the problem might be less pronounced. And to combat what you call "ghettoization," why not write Jotwell posts, tweets, and blog entries about great work by fellows and juniors that you consider underplaced? Tenured faculty are well-positioned to help raise the profile those who are doing great yet underappreciated work. Rather than blame candidates, look in the mirror.

The idea that folks in fellowships are receiving some secret advice is also silly (imagine: one "under-theorized" plus two "much ink has been spilled" equals success!). Every piece of advice I heard in my fellowship is already on a blog or in a podcast, apart from fellow candidates' private war stories. The fellowship merely offered a space for workshops with your fellow soon-to-be junior faculty members, learning more about your own presentation strengths and flaws, and becoming immersed in an area in which you hoped to teach.

The criticism about the typical socioeconomic background of fellows is well-placed and very deserving of attention.

Posted by: another anon | May 22, 2017 9:45:58 AM

Another anon writes: "The idea that folks in fellowships are receiving some secret advice is also silly."

I'm less sure of that. Everyone starts out with a bad first draft, and the question is how to improve it. Rewriting a problematic law review article draft is something like repairing a car that won't start. The fact that it needs to be fixed isn't a secret. And the general principles of auto repair are easily found on the web. On the other hand, there's a big difference between knowing that general information available is out there and having an experienced mechanic work with you directly to help you repair the car.

Posted by: Orin Kerr | May 22, 2017 12:57:57 PM

Another Anon is spot on. In Paul's (thoughtful) post there's an unmistakable implication that top mentors and top fellowship directors work some kind of magic, even if that magic isn't necessary or sufficient to get a tenure-track job. I did fellowships at two elite schools and Paul's portrayal doesn't fit my experiences or observations in this regard. Some of the other points in the critique I agree with, for example the irrationality of the placement process, but are beyond the power of fellows or junior faculty to change.

Onto Another Anon's points. S/he says:

"Some of the aspersions cast in this piece are doubtful. I emerged from a top fellowship, and I never heard of anyone's mentor placing their job talk in a tip-top journal."


"The idea that folks in fellowships are receiving some secret advice is also silly."

These points are correct in my view, and pretty devastating to Paul's critique. (N.B. I badly wish the fellowship system were different, but lack good ideas for how to make it so.) I'll share a bit about my experience.

First, mentor help. No mentor ever offered placement assistance to me. Further, their strategic, job market advice was minimal and often dated, geared to interviews at other top schools (but presented as unversal advice), or otherwise misguided. In fact, while I am eternally grateful for their support with hiring committees and their substantive feedback on my work, I believe I obtained a job not because of their job market advice but almost in spite of it. When I was on the market a few years back, I often ignored their advice after speaking with people more familiar with hiring (i.e., people with more relevant experience in hiring, including especially outside of elite schools, as opposed to people who are leading scholars at elite schools). Senior mentors are very valuable but their value is not in providing job market advice. Often common sense was better.

Second, this concept of fellowship directors - the people who run the fellowship program, usually not TT profs - as stores of job market wisdom and connections doesn't track my experience. I found the type of advice dispensed by fellowship directors - invariably smart and kind people - to be mostly at a high level of generality, and predictable. Far from being a reflection on their abilities, this limitation is a function of the fact that there is no secret sauce; the hiring process is intensely and pervasively idiosyncratic. It varies school to school and year to year, based on who has juice on the committee, what the school did last year, who the competition is on the market, etc. The primary exception was CV review. But I would have been entitled to all of this (CV review and market advice) at my alma mater as an alum anyway.

Elite fellowships produce people who (may) get good jobs because of the inputs - it is hard to get those fellowships - and because the fellowships are gold stars in themselves, which helps with placement of articles and job placement. Senior mentors can help with topic selection and of course by picking up the phone at the right time. But in my view, mentors and fellowship directors don't add value in the (somewhat charming) ways Paul theorizes here.

Posted by: yet another anon | May 23, 2017 12:05:27 AM

Orin: I agree that there's no substitute for having personalized feedback on your work and presentation. But this section suggests that Paul is talking about more general secret "stratagems":

"The elite schools that have fellowship programs and mentor fellows are offering strategic advice for fellows to help them get jobs, according to the criteria that law schools are likely to apply--or the criteria they think law schools are likely to apply, but this ends up becoming a self-fulfilling prediction. If they were to talk openly about some of these stratagems, let alone the problems with them, it would hardly benefit their fellows."

Yet another anon also raises excellent points about the chicken-and-egg problem here.

Posted by: another anon | May 23, 2017 9:33:17 AM

Another anon, that's fair. In my defense, Paul's posts are too long to actually read, so I just skimmed it. :)

FWIW, I think Paul and my perspective is partly a reflection of the era in which we were initially hired. When I went on the market, in 2000 to 2001, I was clueless. I didn't have any professors read my papers or have any professors moot my job talks -- simply because I didn't know any who would, or at least didn't think to ask them. I had professors from my law school who were references for me, but my understanding is that none placed any calls on my behalf. I obtained a pamphlet from the Institute for Humane Studies that had published advice on the general process of obtaining a law professor job, especially for right of center candidates, that was in essence my guide. But I was really clueless about the process. To give one example -- amusing in retrospect -- I met a young law professor through a friend the year I was on the market who advised me that the best way to get a job was to give a job talk without a paper. Just present something new without anything written, he advised. I had some papers forthcoming in law reviews, but I figured he knew what he was talking about so I came up with another idea for an article and presented that at job talks without a paper. The result, predictably, was pretty much a disaster at my first few talks. Anyway, I don't say any of this to suggest I was special. To the contrary, I think my cluelessness was pretty typical for the market in 2000. So for old fogies like Paul and me, the change in just the last 15 or so years has been striking. It may be that we are wrongly attributing that shift to fellowships when there are other causes.

Posted by: Orin Kerr | May 24, 2017 12:29:00 AM

I think Paul's critiques are fair. Fellowships have the effect of "normalizing" candidates to fit into a particular mold in order to get jobs. However, this approach has been effective, so programs have little incentive to change. In many respects, they are simply responding to the dysfunctions of the legal academy at large (over-emphasis on placement based on rank of law school, not rank of journal; prestige over substance; rewarding insider status, etc.).

While I didn't do a fellowship, I consulted several faculty members about my application and got pretty standard advice. Organize your CV like a checklist (education, clerkship, publications, etc.) not in chronological order (I imagine faculty committees checking off your "prestige factor" while skimming the CV). Don't talk about the controversial subjects you research in too controversial of a manner. Seem intellectually curious but don't challenge the premises that underlie conventional thinking. Talk about race, but don't talk too much about race. Use the buzz words everyone uses (experiential learning, panacea, [insert seasonal buzz word of your field]). Obviously, they used coded language to convey all of this information.

While fellowships should encourage thoughtfulness and rigorous scholarship, schools should be willing to hire candidates who don't fit the mold but show promise and creativity. Maybe, candidates would be more willing to take risks and be more authentic if intellectual honestly and curiosity were actually rewarded. After learning the rules of the game, I got a job. It's hard to get a law teaching job. If faculty members don't like the training junior faculty are receiving in these fellowship programs, shouldn't they contact the programs directly and let them know? More importantly, why don't they hire candidates that reflect the scholars they would like to see in the academy? Or better yet, give constructive feedback and mentor candidates, beyond their insular circle, to push junior scholars in the right direction? While I agree with much of Paul's critiques, I think law faculty have plenty of resources to have this conversation with fellowship program directors directly, even if anonymously, and certainly they can help guide these fellowship graduates who have not fully reached their potential.

Posted by: junior faculty | May 24, 2017 9:33:54 AM

Orin's point that his and Paul's comments reflect the era in which they came up is important. The world Orin describes explicitly, which I imagine is similar to the one Paul is drawing on implicitly in his critique, is unrecognizable today. This limitation may explain the decision to identify "The Fellowship Track" rather than the *demand* for people who've come up through fellowships as the issue.

The market dynamic favors a certain kind of candidate, and fellowships are a market response. Perhaps one or two fellowship programs helped kick off that trend 15 years ago, but today there's no question it's driven by hiring committees. If the top schools shut down their fellowship programs today, what do you think is the likelier outcome: (a) hiring committees simply revert to pre-fellowship hiring practices or (b) other fellowships and fellowship-like programs crop up that would take their place? Of course it is (b).

As long as there is a demand for fellows, there will be fellowship programs. It's pretty hard to envision a world where the demands of hiring committees shift away from people who've had time to write and polish their work towards another standard. I agree that the current system is bad (inefficient, unfair, etc.) - I actually think it is worse than you allow - but if you want to change it it seems to me you need to make out a positive case and realistic path for change. And that change can only come from the buyers in the market - hiring committees - not fellows or fellowship programs.

Posted by: yet another anon | May 24, 2017 10:14:40 AM

forgive the brevity of my comment, but I simply have too much grading and writing for anything lengthy. I want to simply chime in with those who argue against the privileged and privileging notion of fellowships or VAPS. i write anonymously because it allows me give a straight record without sounding like i'm tooting my own trumpet. so here's all i have time for, from my own experience:
1) i VAPed at a 2d tier school.
2) i had published fairly extensively before landing that position.
3) i was financially supporting a spouse, who had not yet finished education, but later became a professional.
4) i was the sole bread winner, we didn't have kids, and we didn't mind taking a lower paying job (b/c i worked in government and the salary wasn't that much lower anyway, although significantly lower than at law schools). we could afford much less than now but lived very happily.
5.1) while a VAP (3 yrs) i published 2 articles that placed in the top 30 flagship law reviews and one specialty journal in a top 10 law school. i taught two doctrinal classes, one non-doctrinal, and one seminar.
5.2) both pieces were original works of scholarship in a sub-area of my field that almost no one had touched, to which I added in a manner that led to many connections with persons long-established in the niche area. it led to much more, but for the sake of anonymity i leave it there.
6) no one called a law review on my behalf, nor did i have the audacity to make such a request. i sent it out like any else.
7) i certainly learned submission tricks for submission, e.g. time of submission, number of places to submit to, how to work expedites, etc.
8) My VAP faculty gave me only sporadic (and sometimes grudging) instruction about submissions and the job market, and then only if i asked directly, even though there were some very accomplished scholars there, i simply picked it up through many conversations and there were a number of people of the faculty who cheered me on.
9.1) i received edits not only from people on the faculty but also from those at other faculties.
9.2) while still in legal practice, i had contacted exceptional scholar, top people in my field, sent them drafts and most of them responded, providing me invaluable insights, but it was easier to receive comments as a VAP.
10) i come from a middle-class family with educated parents, who know almost nothing about the academic market. neither they nor my spouse's parents provided any material support during the VAP years.
11) the teaching experience, service experience, and writing experience i gained as a VAP were enormously helpful.
12.1) the only person at the VAP school who contacted schools where i had interviewed was the dean.
12.2) i had three significant references: 1 a professor from my graduating law school and 2 scholars whose acquaintance i made through scholarship.
13) i found a full time faculty position in a top 2d tier school and at the AALS market had interviews with a number of 1st tier schools.
14) MY BOTTOM LINE, is that the presumption of VAP privilege sounds absurd to me. i clawed my way to this position, worked far more than i had in practice (late nights and early mornings researching and writing, grading,taking care of my children, and spending time with spouse and family).
15) kudos to those who can get jobs without fellowships, but i certainly could not have done so. i lacked experience, needed time to write, gained invaluable contacts, learned to teach and interact with students, and gained insight into academia.

Posted by: AnnProf1 | May 24, 2017 10:42:36 AM

sorry, two clarifications, i notice should have been made before hitting post: 4) "although significantly lower than at law schools" should be "although significantly lower than at law firms". 14) "taking care of my children" should be "taking care of my children, who were born while i was a VAP".

Posted by: AnnProf1 | May 24, 2017 10:53:56 AM

To follow up on anonprof1, it doesn't seem that fellowships and VAPs have exacerbated the problem of socio-economic bias in the path to being a professor. If anything, formalization and clarification of the path might help open up the path to more people from non-traditional backgrounds. We should care about socio-economic diversity in the profession but the fellowship track seems to be a wash at worst on that point.

Posted by: anon | May 24, 2017 2:36:45 PM

I have been reluctant to weigh in on comments, whether supportive or critical, in part because my goal is the conversation and I'm not much needed for that, other than having provided a launching point. I would like to chime in a little on that last (interesting) comment. You could be right; I don't have the data. Or it could be a wash compared specifically to what might be the case without the fellowships at this moment and given the rest of the elements of the current system. But it's not clear to me. Leaving aside cost issues, I suppose it depends on part on what such programs look for in fellowship applicants. Given all the things people talk about when they talk about the downsides of meritocracy in practice, the relevance of social networks and social capital, etc., if they are looking for people with full and fancy resumes, that should, I think, have a narrowing effect on the socioeconomic diversity of the fellows. It does not preclude race and gender diversity, but it may still end up with the selection of a (more) diverse range of people primarily from upper-middle-class backgrounds and with professional parents, post-graduate degrees in other fields from fancy schools, and so on. If the fellowship programs are actually more actively seeking out people from lower-ranked law schools, and/or first generation college or law school attenders, than I'm happy to revise my picture of the situation. The "informal" system that once reigned may have involved deans at Harvard calling and offering teaching jobs at Harvard to excellent Harvard students they knew at the law school and obtained Supreme Court clerkships for. But it was also less of a national market, so that many lower-ranked schools hired local lawyers and home-school graduates. I really don't have the data on the current system, so I'm not venturing an opinion. Of course I'd be happy to see more information.

Posted by: Paul Horwitz | May 24, 2017 4:33:57 PM

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