The Professor's Cliché and My Two Cents on Law Prof Hiring

Thanks to the Prawsblawg gang for inviting me aboard for a short blogging stint.  In a few short months, this blog has risen to the top of my blog bookmarks list, and it’s a nice treat to be able to visit this illustrious community for a little bit.

I want to dive in with a post on one topic that seems to be of particular interest to this blog’s readership, which is the hiring process for law professors.  It’s a cliché for existing law profs to look at the market for entry-level types and say something to the effect of “I could have never been hired in today’s market.”  And indeed, the cliché is often factually true.  What’s less clear is what follows from that statement.  Does that statement preface an argument by the senior faculty member that his law school should look for throw-back legal hires like himself?  Or does it precede a comment about how her law school colleagues shouldn’t be so hard on entry level candidate x for a few slip-ups during a job talk?  Or does it just reflect an awkward effort to break the ice and flatter a nervous interviewee?

I bring up this cliché because I am getting to the point where I feel the urge to start saying it myself.  The punch-line is that I was hired as an entry-level candidate at Chicago just four years ago.  I recently completed a two-year tour of duty on Chicago’s appointments committee, and I believe there is a palpable difference between what the market was like in 2001 and what it is like today.  During the past couple of years, Chicago interviewed perhaps forty candidates at the AALS conference, virtually all of whom obtained tenure-track teaching jobs somewhere.  What was striking about the candidates we interviewed was how few of them fit the “throwback” profile of graduating from a great law school with law review bells and whistles, clerking once or twice, and working in legal practice for a couple of years.  Indeed, over the past three years, we hired six entry level profs, but none of them fit that profile.  Two of our hires clerked for a year following the completion of their J.D. / PhD’s, and four had worked as writing fellows or Visiting Assistant Professors (“VAP”), following their completion of judicial clerkships and, in most cases, some practice experience.  Our hiring is by no means an outlier.  As Larry Solum’s fantastic survey shows, Chicago recently has hired fewer JD/PhDs than most of our peer schools. 

People like me who enter law teaching with neither a PhD nor experience as a writing fellow or VAP are finding the entry-level market decreasingly hospitable. Without engaging in too much self-flagellation, I think this development is worth applauding.  Tenure denials are necessarily contentious and divisive, and many law faculties have granted tenure because doing so constituted the path of least resistance.  As a result, there is a lot of dead wood in the legal academy.  VAPs, Fellowships, and PhDs have introduced a post-doc institution into law teaching, permitting schools to gain greater information about candidates earlier in their teaching careers, without incurring high risks of tenure denials or mistaken tenure grants.  And it would not surprise me to see schools that do take tenure decisions seriously relying increasingly on hiring fellows and VAPs from within.

Now, one common response to this change is to lament, “but we’ll miss the next Cass Sunstein / Bruce Ackerman / Mark Lemley if we only hire Fellows and PhDs."  I think that is the wrong response.  In a dynamic world, today’s Sunsteins, Ackermans, and Lemleys will be savvy enough to realize which way the winds are blowing, and apply for Bigelow and Climenko Fellowships.  And every year, some extremely talented, prolific, and lucky teaching candidates possessing “only” a J.D. will continue to be plucked into teaching from a clerkship or law firm, but my first piece of advice to those seeking the best job this side of major league baseball is “Do as I say, not as I did.”