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Tuesday, August 02, 2005

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.”

Posted by Lior Strahilevitz on August 2, 2005 at 04:04 PM in Life of Law Schools | Permalink


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Thanks for a great post! This essay challenges the widely held view that legislative integrity is a distinct political ideal. According to this ideal, lawmakers should try to make the total set of laws they enact as morally coherent as possible.

Posted by: Law Training Contracts | Jun 2, 2008 3:05:38 AM

I think that practise is the only criteria when hiring a proffessor.

Posted by: Dan | Feb 19, 2006 3:12:50 PM

I started out as a Fellow (the subsequent sex change operation has been a success!) and it was a good way for me to get into law teaching, but as a requirement it does raise barriers to entry for people who can't or don't want to move around a lot. I was already living near Philadelphia when I got a Morris Freedman Fellowship at Temple (which also came with a fetching LLM). I didn't even apply to any other programs because I couldn't relocate at the time. The same gig at a more prestigious school might have made me more marketable (though I got what I consider great training at Temple) but moving was one hurdle too many for me, and maybe for many people, and I worry about the impact of this on the candidate pool.

Posted by: Ann Bartow | Dec 7, 2005 2:30:44 PM

If hiring is principally from fellows/VAPs, perhaps over time it will become a misnomer to call them "entry-level" hires. Or, perhaps the hiring as a fellow/VAP will be the true "entry-level." Eric.

Posted by: Eric Goldman | Sep 7, 2005 11:10:22 PM

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.

Indeed. The problem is how to identify the next Phil Areeda, Louis Loss, or Robert Braucher.

Posted by: alkali | Aug 3, 2005 12:25:24 PM

This analysis makes sense to me. I'm going into the last year of a three year stint on our hiring committee at a small law school in western mass (and was only hired myself 3 years ago) and from what I've seen, this is definitely the trend line. More and more of the people even we look at on a faculty quite a bit below the Chicagos and GWs (is that where Professor Kerr is now??) in the USNWR rankings are either PhDs or lawyers with substantial publications already. No one who is taking a clerkship or big firm experience seriously can do the kind of writing I'm talking about -- which makes transitional stints as fellows etc. necessary. As for the "deadwood," I think a preponderance of the times I've heard those mea culpas, they've been faux expressions of humility to put someone at ease. They still think PhDs and theoretical writing are for sissies!!!

Posted by: Jamison Colburn | Aug 2, 2005 11:16:36 PM

Thanks! Chicago itself will, I believe, continue to be active in entry level hiring. It's a lot easier to hire entry levels when there's a longer paper trail, a more polished research agenda, and academic references who can say more than "wrote the best Evidence exam in a class of 50 students." If this argument is right, then that's the big tradeoff among entry level scholars -- a longer haul to get hired, but a better chance of starting off on second or third base, as it were, with a relatively light teaching load and superbly helpful colleagues. Maybe "entry levels are the new laterals."

Posted by: Lior | Aug 2, 2005 10:58:28 PM

Very good post -- and welcome to the blogosphere, too. I wonder if a corollary to this trend is that top schools like Chicago will simply do less entry-level hiring in the future.

Posted by: Orin Kerr | Aug 2, 2005 9:54:07 PM

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