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Friday, May 17, 2019

Some Suggested Questions for Fellowship and VAP Directors

I'm delighted that Jessica Erickson will be interviewing fellowship and VAP directors. I look forward to the results. I should note that a few years ago, Elizabeth Chamblee Burch and I co-chaired a panel of the AALS section on Scholarship at the annual meeting titled "The State of the Art on Placing Legal Scholarship and its Potential Consequences." A video is available here. Despite the title, as I recollect, part of the discussion was about the role of fellowships and VAPs and of fellowship and VAP directors in shaping and helping to place scholarship. I would also recommend as relevant a book which landed with a thud on my desk this morning: Ted White's third and final volume of Law in American History, specifically chapter 6, "The American Legal Academy and Jurisprudence II: From Process Theory to 'Law And.'" Among other things, it contains interesting discussions of changes in faculty hiring.

The difficulty with suggesting questions for such a series is that in our small world, with all its conventions and strategic considerations, it can be impolitic to ask the questions one actually wants answered, and being impolitic is a cardinal sin among academics, including legal academics. This is one of the academic attractions of "speaking truth to power:" it points outward, not inward, and so lets sleeping dogs lie. Some questions will necessarily reflect on the strengths and weaknesses of the fellows, who are hardly unprivileged but are also only at the beginning of their careers; I do want to ask questions about them, or about the system that produces them, but with no intent to offend or make them nervous. Some questions will reflect on the people who run those programs. In either case, those of us who want to hire these candidates and want to maintain good relations with their mentors risk damaging that goal if we are impolitic. Better, on this view, to ask those questions in private or not ask them at all, on the assumption that people in the know will, well, know--even if that means both that we entrench the usual systems of hierarchy and inside baseball, and even if it means that the people who consider themselves cognoscenti think they know the real story but are actually thin on details and thick on myths and assumptions.

But one of the obligations of academic tenure, which includes responsibility for the state of one's discipline as well as one's individual institution, is to be impolitic.  I'm not sure the questions I ask here are impolitic; I just haven't worried much about whether they are or not. One should also note that there are obvious reasons for the people Jessica will interview to be politic as well, so it's important to dig down and push back if they offer bromides or generalities. In any event, here are some questions I would be happy to have asked and almost as happy to have answered. 

1) What do we lose by relying on fellowships and VAPs in hiring? It seems to me that the answers to the question what we gain from them are much more obvious, and hence less interesting and less worth asking. I'm happy to be proved wrong by answers that teach me something new about what we gain. But many of those gains seem obvious. Most prominently for me, the average level of basic quality and polish of the candidates I have seen over the past 15 years or so has increased significantly. In addition, their commitment to an academic life is more guaranteed, with the departure from (or, alas, skipping of) legal practice and the sacrifice of time involved in a fellowship serving as proxies for the demonstration of commitment to the academic life that is one of the functions of a doctoral program. (I should note that "commitment" is not the same as "calling." Whether we hire people who have an academic calling is a separate question.) In some respects the candidates are more diverse than they would be, and were, in a system that relied more heavily on individual recommendations and sponsorship at a few schools.

But what do we lose by this system? I've previously recommended Martha Nussbaum's article Cooking for a Job: The Law School Hiring Process, which is now aged but still pertinent, if not prescient, in its concern that law school hiring might prize "quickness, glibness, and aggressiveness" and undervalue "reflectiveness, quietness, and uncertainty." Nussbaum argues in part that it would be better if candidates had writing we could judge carefully instead of focusing on their marketing skills and ability to pass "lunch." Well, we now have articles a-plenty from candidates who go through the fellowship/VAP process. But have we moved away from glibness, marketing skills, "catchy phrases and slogans," passing or flunking "lunch," and the like? Or have we rather refined and improved, through the fellowship process, the job of training candidates to show those questionable qualities, in their writing as well as their selling--the job, in sum, of "polishing" candidates? We gain, I have suggested, a higher average threshold level of quality and readiness. But do we miss rough gems--individuals who are not yet "polished" but who in time might be more likely to contribute genuinely new and heterodox ideas? Do we lose promising oddballs and eccentrics? Candidates who are more high-risk but also more high-gain? Do we lose, or let diminish, the ability to see beneath the patina and make deeper judgments? Not to mention losing those practicing lawyers who not only have longer and more meaningful legal experience but also and genuinely have an academic calling, but are not inclined to go the fellowship route?

2) If there are any such losses, do fellowship and VAP directors attempt to address and remedy them, or are these losses baked in to the current system? I think this question goes to both selection and training. On the selection level, are fellowship and VAP directors looking for rough gems and people with unconventional backgrounds? Or are they already predisposed to hire as fellows or VAPs those who have already checked the same old boxes--top five (or top three) school, law review, two federal court clerkships, work for a "suitable" firm or interest group? If it's the latter, is that really the best use of these resources--to further polish the already-fairly-polished? I am asking rather than answering this question: maybe the answer is that these are the most likely best scholars and we should want them to become law teachers, just as we select the most promising undergraduates in history for graduate programs rather than the C students. But the answer to the question seems less obvious to me than that, since a doctorate is a prerequisite to become a history professor and a fellowship, despite increasing reliance on it as a qualification, is not a prerequisite to become a law professor. At the training level, do fellowship directors talk about the difference between surface polish and serious depth? Do they discourage or encourage the use of "catchy phrases and slogans" and the like? Do they serve as a chisel or cudgel or as a chamois for their fellows? When they give references, are they willing to distinguish those of their fellows who are superficially brilliant from those who have greater depths--or at least to let the superficially brilliant speak for themselves while making a greater effort to champion those who don't lunch well but show true promise as scholars and teachers?

3) How much of the "polish" comes from the programs' leaders and faculty and how much from the fellows themselves? Just as the standard level of quality of the top-school fellows and VAPs seems higher and more standardized,  so does their facility and homogeneity in using particular tropes, approaches, strategies, and so on in their scholarship, their presentations, their FAR forms, their interviews, etc. Is this a result of what they are learning from the directors of these programs, or individual faculty mentors? Or is much of it the product of horizontal exchanges of information (and lore)?   

4) Is there any point in doing a fellowship or VAP at a school beyond the top five or ten schools? Is there sufficient justification for having a fellowship program at such schools? Again, I'm answering this question, not presuming an answer. I can speak on the level of experience about how terrific some colleagues who came from fellowships outside the top five schools have been. Nevertheless, hiring rates from those programs are surely lower than from the top schools, and whether a VAP program at such a school provides serious training, mentorship, and so on will surely vary by school. Of course the choice is up to the prospective fellow, who is an adult with a law degree and everything. But it's equally true that such a school could tally up the outcomes and evaluate the depth and quality of its program and decide it's not worth it, or not fair to would-be fellows, to maintain it. If they do maintain it, do the directors at such schools give fair warning to prospective fellows that hiring outcomes go down outside of the most recognized VAP or fellowship programs? 

5) Do top fellows and VAPs over-place their work? If so, how and why? This is another potentially impolitic question, but one on which I have heard plenty of sotto voce consensus. It is true both that the quality and the placement of articles from the candidates I have seen over past 15 years has climbed significantly, but I think the latter is more true than the former. To be clear, I am not speaking ill of the quality of the pieces I am reading by fellows and VAPs; as I said, I think their average quality level has skyrocketed and that the fellowship/VAP process has much to do with that. I would nevertheless suggest that their average level of placement seems to exceed their average level of quality and contribution. (Coming up with a new bottle for old wine, or a new label for an old bottle, has its uses but is not a deep contribution.)

Would the directors agree? (I imagine they would not, or wouldn't say so if they did. But there's no harm in asking.) What role do they, or individual faculty mentors, play in article placement for fellows and VAPs under their care? Some? None? A great deal? Should they play any role in helping their fellows with placement at all? I see excellent reasons why the answer should be no, other than advice about how best to write and frame an article and even about how best to play the placement game (although I hope they include some skepticism about that game along with their advice). I think that directors could (must, really) at least be candid about saying whether or not they or other faculty members help push or place articles. But I no longer assume that they are the sole reason. Coming from another country, I did not fully participate in the networks of elite social capital when I was beginning my career in the US or in legal academia. I certainly benefited from some of that, but I didn't have the same level of network and really wasn't aware of much that goes on--and still am not, for the most part blissfully. How much does placement for fellows or VAPs at top law reviews depend less on their program (except as a basic credential that law reviews can use for plausible justification) and more on the individual fellows' past or present acquaintance with the student editors at those journals, through law school, clerkships and clerk networks, undergraduate institutions, and other elite small-world factors? If that's what's going on, it's another excellent reason to question the law review system (and perhaps the United States) as a whole, but not something I'd lay at the feet of the programs and their directors. Still, I'd like to know more. I hate to assume anything in this area without knowledge, and it's precisely knowledge that is in short supply, or kept under wraps rather than made utterly transparent. I will add again, lest I be thought too rude in asking this question, that I have heard more than a few professors suggesting that a number of recent articles by elite fellows seem clearly overplaced, even if they are good, and certainly polished, articles. Doubtless they could all be wrong, and doubtless many of them would disagree about which articles are or aren't overplaced. But it seems odd for this observation to be simultaneously widespread and not publicly discussed.     

6) Do elite fellowship and VAP programs challenge questionable versions of "meritocracy," improve them, or entrench them, or some or all of the above? One of the advantages of these systems--at least if they are fully and generously funded, and even then one must factor in those potential candidates whose family commitments in particular places may make them less willing or able to take on a fellowship or VAP--is that it relies less on the "old boy" network (which can still be an old boy network even if it extends beyond boys) under which Dean A at Law School taps Student B on the shoulder and destines him or her for a teaching job. That was the older system, and one finds constant reference to it in the memoirs of or histories discussing mid-century law professors of note. There is no doubt that along some lines, the fellowship/VAP system is more diverse. Of course, a system in which no fellowships existed but we did have a meat market could also result in diversity of hiring, but one advantage of the fellowship system--here I'm focusing on this as a plus rather than a minus--is that it teaches some promising people some of the vocabulary and polish that others imbibed from professor parents or other sources of relevant training and social capital. Do elite fellowship directors seek out such students, or concentrate on those who already have that social capital and just polish them up a little more? (See question 2 above.) Do they look for socioeconomic as well as other forms of diversity? Do they look for ideological diversity, including giving serious weight to clerkships or legal work experience for judges or groups that don't have the cachet of certain other judges or groups? Do they do the same when it comes to the hiring process? I have noticed that some fellows who take slightly more heterodox or unpopular positions on hot-button issues have placed extremely well while still fellows, but fared less well at the hiring level. That difference also means that once they're berthed at less prestigious schools compared to those at which their more orthodox fellow fellows (pardon me) have landed, articles of comparable quality will place more poorly depending on where a fellow has ended up. Again, I don't lay that at the feet of the directors. But have they noticed this--and if so, have they worked to counter it? Ultimately, is the fellowship/VAP program a way of countering the usual reproduction of hierarchy, a way of keeping it but making it fairer and more equitable, or a way of modernizing the same old phenomenon and dressing it up in more respectable garb? Is this something that the programs, their directors, and their schools think about, worry about, and discuss?

7) How can fellowship directors cultivate a knowledge of--and an interest in on the part of prospective professors--a wider spectrum of these United States? One potential problem with a reproduction of hierarchy system is that both its senior and its junior members can be caught up in a closed loop of limited life experience. To exaggerate, a person who grows up in Brookline, shuttles between Cambridge and New Haven for his or her education, and then briefly lives and works in New York and DC before returning to Cambridge or New Haven for a fellowship may lack a more comprehensive knowledge of what possibilities lie outside that rather parochial experience. And if that person's mentor has followed the same arc, traversing the spectrum all the way from A to B, the problem is compounded. I have encountered fellows for whom the idea of teaching outside about ten schools and four cities was seemingly far from their experience, and fellows who told me about rather narrow advice they were given by elite mentors about where to teach. Do directors of these programs make an effort to learn about law schools across the country and pass on what they know? Do they encourage their fellows to think beyond a short list of schools or cities? Do they feel they know enough to do so, or that their colleagues who serve as mentors do?

I'm sure others can and will come up with other questions, but this is certainly a start.  


Posted by Paul Horwitz on May 17, 2019 at 05:08 PM in Paul Horwitz | Permalink


anon, 6:02

You raise many interesting points and I agree that in an ideal world VAP can be an excellent signaling device. But for the most part excellent legal practitioners who have not written any articles are not getting these fellowships; while I agree that about half are non-phd candidates, it's not like the remaining cases are filled with those who are transitioning to academia and just need the time to write. To the extent someone is not a ph.d, they are usually someone 2-3 years out of school, with a prestigious clerkship and often one significant publication. I would be surprised if there were any fellows at any of the top programs where the person worked at a large law firm or government more than 2-3 years removed from graduation without an article or significant research agenda already formed. NYU Lawyering is an exception to this trend to some extent as they sometimes hire practitioners; but the others really don't.

Also, one questions the lack of diversity in some of the programs. Climenko on its webpage has 3 women out of 15; Columbia 1 out of 7 women for its fellows; that does not even get to the lack of racial and ethnic diversity as well as law school diversity (would an applicant who was a top student at GW or BC or BU Law even have a chance? I bet none are even interviewed at the top programs). I question whether some of the old system of relying on contacts and close law school connections impedes the fellowship process, because there is no reason for any of these programs to be 14-25% women and even less minorities.

The profiles are remarkably similar even though these people will go on to teach at a range of law schools, from ones where most of the students are part-time to ones like Yale. Is the same profile necessary or even desirable for all of our nation's 140 or 150 law schools? In the current system, we have Supreme Court clerks getting jobs at non ranked schools such that a great applicant from a non top law school does not stand a chance (outside of possibly getting a job at their alma mater where they might have connections).

I also think it very much varies how much faculty input on scholarship quality has in the fellowship selection process. Fellows were originally intended as a vehicle to transition to academia, so if one if practicing, at the selection stage, the selectors really have no idea on the actual quality of the person's scholarship since they haven't written anything yet. I still think this is true; at the selection stage, you hire on potential rather than actual scholarship at least for some spaces.

So I think the argument overestimates the proxy signal of being a fellow as signaling faculty concurrence on the quality of a person's scholarship. I think often schools are invested in their fellows programs and will advocate for the regardless of how the scholarship turns out. True, in many cases, it turns out great, but in other cases, it may be hard to decipher whether the school just advocates for all fellows to preserve the institutional interest of having people to teach legal writing or whether they actually see them as great scholars. Fellows programs want to place their people.

Given limited jobs, the proxy of using fellows as a signal of quality also neglects the fact that favoritism of fellows means that outside applicants will get disfavored. While law review placement is an imperfect signal, a practitioner who is able to place an article in a top 20 or even top 50 law review with seeming none of the polishing done in the fellows programs is impressive. A practitioner who went to a top 30-50 range school who can place in a top 20 law review is impressive. Stand alone phds who publish articles in top law related peer reviewed journals or top law reviews are impressive. But I think in many cases the candidate who has fellowship directors advocating for them will get the job over these other applicants.

Posted by: anon | May 20, 2019 7:25:40 PM

@anon, 3:07 -

I'm less pessimistic than you about the current state of fellowships/VAPs. Maybe I'm wrong, but my sense was that fewer than half of fellows/VAPs have PhDs. At the very least, there are definitely still a healthy number of fellows/VAPs who do not -- although it's still relatively unusual to see fellows/VAPs with more than ~2 years of biglaw-type experience (but the relative shortage of colorable candidates with material practice experience is a market-wide problem).

I also think that the fellowship/VAPs offer more than institutional cheerleading: they give scholars coming from practice time and space to write, to develop a research agenda, and to become re-acclimatized to the culture of academia. Those are each incredibly valuable and otherwise mostly unobtainable goods that may be necessary for market success in this hyper-competitive market.

I also want to address head-on one of your primary critiques of fellowships/VAPs. Fellowships/VAPs also offer an incredibly valuable signaling function to schools. There is no world in which a hiring committee can carefully vet every single candidate who applies, and so committees have to rely on signals -- including productivity, law school quality, work experience, and article placement. None of these are as useful as a fellowship/VAP, which denote that a number of our colleagues, often at excellent schools, have read the candidate's work and were impressed. The cheerleading that often--but not always--follows serves as further confirmation of that: in the year or two since the candidate was selected to the fellowship, (s)he has only impressed our colleagues more. I don't think there's much of a comparison here with the other major signals that hiring committees rely on -- such as article placement (e.g., were 2Ls impressed?).

Along these lines, there's nothing inherently problematic with law school hiring relying on peer support (and word of mouth and everything that follows). This becomes a problem when such hiring practices perpetuate existing inequalities and biases--like with what happened a generation ago with SCOTUS clerk and home-school hiring, wherein 1Ls were anointed for SCOTUS and eventual TT success by kingmaker professors. To the extent that fellowship/VAP selection is fairly meritocratic and based on characteristics of reasonably professionally mature candidates that matter--and my sense is that at most schools, selection largely turns on the faculties' perception of scholarly quality and potential--institutional cheerleading stemming from fellow/VAP selection largely selects and perpetuates the characteristics we institutionally want to favor in legal academia.

Of course, there are exceptions. I hate to continue to criticize the Bigelow, which I think is generally a wonderful program, but I have yet to see a Bigelow fellow who is not aggressively pushed by the Chicago faculty. The signaling value of faculty support for a Bigelow is therefore of relatively lower value to me. That said, Chicago's faculty are smart and they choose Bigelows through an open and competitive process, so the fact that someone was selected as a Bigelow is nevertheless a useful signal.

In any event, you raise interesting points on how subject-matter preferences shape the market in ways that might influence demographics in TT hiring or even in fellowship/VAP programs. An interesting related point is that there are certain subjects in which the widespread perception is that they must be taught by an expert. I wonder to what extent gender/race are correlated with 'expert-only' subjects as compared with those subjects where the perception is that anyone can teach.

Posted by: a non | May 20, 2019 6:02:17 PM

Another issue is the dominance the last two or three hiring seasons of Business Law and to a lesser extent Criminal Law and other first year subjects. Perhaps that explains in part the gender disparity in this year's hiring. But there are scholars out there who have the low-risk credentials mentioned (top law school, fellow/Ph.D, pubs) who strike out on the market due to the fact they do not study business law.

It's also increasingly becoming the case that independent scholars - those not in a law school who may be in practice or may have a ph.d - increasingly find it necessary to do a fellowship. The poster below notes how almost all the Bigelows have ph.d- the same is true at many of the fellows programs. There is no practical reason why someone with a phd needs a fellowship; they have time and the resources to write and often have placed top 50 articles even before the fellowship. The only benefit from the fellowship is really having an institutional cheerleader to champion one's case, which to my mind, is not that far removed from the old system AALS was meant to replace and in fact may be one reason fo the lack of diversity in recent years.

Until the system gets away from relying on word of mouth and influential people advocating for people instead of one more based on scholarship I don't think much will change. Also there should be an outlet for promising practicing lawyers to enter legal academia - the fellowship programs are clearly no longer doing this.

Posted by: anon | May 20, 2019 3:07:04 PM

Just a general note of thanks for very interesting comments.

Posted by: Paul Horwitz | May 20, 2019 1:32:37 PM

To tack on. Most people teaching at law schools with experience in biglaw have no conception of what law practice will look like to their students. Many students become solo practitioner or work at small firms. This type of work is very different from work at large firms.

Posted by: anon | May 20, 2019 1:22:11 PM

I don't think it's possible to have this conversation without also considering the effect of other trends in entry-level hiring, namely the rise of the PhD. I'm fairly confident, for example, that the number of fellowship/VAPs who have been hired over the past decade has increased at a far lesser rate than the number of PhD candidates -- and, moreover, that this difference is particularly exaggerated at the top schools.

This is especially important given that a number of criticisms of the fellowship/VAP programs apply to PhDs as well. A world in which fellowships/VAPs become disfavored is likely a world in which PhDs become even more favored, which could exacerbate some of these problematic effects. For a candidate coming from practice, a fellowship/VAP presents a much more feasible route to academia than a PhD. And for a candidate with a biological imperative not to delay children by too much (or with an inflexible trailing spouse), the shortened time frame of a fellowship will often be helpful--or even of dispositive importance--for a jump to legal academia.

It's difficult for me to imagine how the arms race in hiring gets unraveled. Accepting that it's unlikely that candidates who are materially less qualified on paper--who have fewer publications, a less-developed research agenda, etc.,--will rarely get hired so long as there remains a glut of materially more qualified candidates, the important question to ask is not whether fellowships/VAPs are ideal for those coming from practice or for women or those who have raw potential but little polish, but whether they are better than the alternative--which seems likely to be an even greater focus on PhDs in hiring (or a return to SCOTUS-clerk and home-school favoritism, which strikes me as maybe the worst of all possible outcomes).

Fellowships and VAPs can and probably should do a better job of not just replicating the tenure track hiring market, and take more risks on potential 'diamonds in the rough'-type candidates. But there are pretty big differences between the programs in all respects, including in this one. I think the Bigelow this year was exclusively comprised of candidates with top PhDs who probably can and would have been successful without any fellowship/VAP whatsoever (and as a direct illustration of this, one Bigelow was hired as a first year). I question the role of fellowships/VAPs if they become a necessary credential in addition to a PhD, especially when that PhD is already in a comfortably law-adjacent area. But some fellowships/VAPs are doing better jobs than others at taking risks on unpolished candidates with potential than others -- and I think the Bigelow is more of an outlier than the norm.

Likewise, I think there are legitimate conversations that need to be had regarding the relative value of a candidate's polish versus the value of substantive practice experience. A slightly less-polished candidate with more interesting practice experience will rarely get hired in today's market -- but maybe she should. And I think there are legitimate conversations that need to be had regarding what "substantive practice experience" really should mean. I see, too often, candidates lauded or judged amply experienced for having a clerkship and two years of biglaw experience--which, although far better than nothing, isn't really enough.

There are a lot of real conversations we should be having regarding tenure track hiring that center around fellowships/VAPs. But having these discussions while ignoring the PhD elephant in the room strikes me as, at best, of limited use and, at worst, likely to yield counterproductive consequences. I doubt, for example, that winding down these programs is likely to result in a hiring market that is more welcoming of candidates coming from practice, or from relatively inflexible family arrangements, or with more raw potential but less polish.

Posted by: a non | May 20, 2019 1:17:31 PM

In case my previous comment were deemed purely negative...

My suggestion would be to have an interview series devoted to "unconventional" candidates who "made it".
-Individuals who managed to land an assistant professorship at a T-50 despite not having the "cookie cutter profile"
-Individuals who managed a lateral from a foreign law school to a US law school
-Individuals who managed to move from a lower ranked school to a higher ranked school

The idea is to help market participants identify "actions" and "initiatives" they can undertake to improve their profile. There is some information out there but it is sparse and dated.

Ps. Please correct me if I am wrong, but based on the data available to me...it appears that the JD/JSD is the "Proxy KING". Based on available hiring data for the past 5 years...the chances of landing an Assistant Professorship at a T-50 are negligible for candidates who do not hold a JD/JSD fro HYS - CC. Unless I am missing something, there is greater flexibility for VAPs, clerkships and PhDs...by contrast the JD/JSD is incredibly rigid.

I feel that this datum should be made abundantly clear to anyone who even vaguely aspires to enter legal academia in the USA.

Posted by: AnonVis | May 20, 2019 11:59:38 AM

Since VAP/fellowship directors can't possibly answer q 5 honestly (Do top fellows and VAPs over-place their work and how?), I'll offer my view on it, as someone who gleaned some insights when doing a fellowship that ended two years ago. Yes, some of my colleagues "over-placed" their work. I could be wrong, but I don't think that was anything to do with powerful faculty mentors exercising influence. Rather, it's because law reviews are student-run. To get your article published in (say) the Columbia Law Review, you need to persuade the articles committee of the Columbia Law Review. Contemporary elite JD students have a distinct perspective on what counts as good legal scholarship. If you don't understand that perspective you're going to struggle, no matter how good your article is by the standards of law professors in your area. To a large extent, the best-placed person to persuade the articles committee i is someone who sat on the articles committee (or one like it) three or four years earlier. Relatedly, and especially in the case a person publishing in the same law review of which she was an editor a few years back, the law review editors may be swayed by the fact that this VAP/fellow is very much like them.

Posted by: exfellow | May 20, 2019 7:25:03 AM

A few thoughts that are partially responsive and partly amplifcation or mere restatement of your points: First, it’s hard to argue with AnonVis‘s comment with respect to what has happened, and why, and the conclusion that it’s likely to continue. The credentials arms race is real, and count me among those who is happy to have landed a job when he did with the credentials he had - and with a nearly unheard of seven-plus years of practice experience.

Second, it seems likely that (as you suggest) there are, in the aggregate, significant gains from the new normal. Anyone who has the drive to jump through the various hoops now effectively required to get a job (at least at a “top” school, on most conventional definitions of the term) is highly likely to continue to be a productive scholar throughout her career. And the process of clearing those various hoops no doubt increases the likelihood that that work will be consistently good, again on most conventional definitions of the term.

Third, there are, of course, costs. Low-risk hires make sense, but at least some high-risk hires bring high returns. I can think of two Very Big Name law professors who are reputed to have been poor law students, and who would likely have no chance of getting a job now. And, of course, getting PhDs and doing VAPs requires money and time and often the ability to relocate, and that will have an effect on who is able to do them.

And, as you suggest, there’s value as well in having members of the academy who have not been breathing the same air as everyone else. This is true with respect to diversity as we normally think about it, but perhaps also in a “Prince wouldn’t have become Prince if he wasn’t from Minneapolis” sense. Here’s what I mean: Minneapolis was a relatively backwater place when Prince was growing up, and obviously there was no internet, which meant that there was a limited amount of music that he could be exposed to and influenced by. One version of the story, and I think it’s a pretty good one, holds that his innovation was a product of his isolation. So, too, one can imagine that at least occasionally someone who comes to legal academia from a place other than the usual suspects would produce truly innovative work, because they would have been looking at the world from a very different vantage point. Those folks, too, seem more likely to be shut out.

And, at some risk of falling prey to the phenomenon of simply wanting to replicate myself, I can see clear costs associated with having an academy that has few members with substantial practice experience. I’ve come to believe that professional acculturation and the associated internalization of norms provides a substantial portion of the constraining effect of law. Law school is and can only be merely the beginning of that professional acculturation. On this view the payoff to practice experience is not simply that one can more capably produce “practice-ready” lawyers, but also in providing a deeper understanding of how law and legal institutions work.

So it seems to me there’s a sort of reverse-moneyball opportunity here for schools that are willing to do the work in hiring. As AnonVis makes plain, the metrics suggest you should hire the person with the credentials. The market opportunity may be to find that person in practice - maybe even in practice someplace like Minneapolis or Boise - who has written something that has escaped the world’s notice but turns out to be really good. (And there are some schools that seem to do something like this. The University of Kentucky comes to mind as a place that has hired some tremendously talented faculty who do not all have the standard credentials.) And it may be, as one of my professors told me a quarter-century ago when I was first thinking I might like to do this job, that the market works, in the sense that someone who gets in the game can, if she desires, work her way “up.” That, at least, was the story for the Very Big Names I referenced above. (Of course, the lateral market brings its own set of questions, and it, too, may no longer work the way it once did.)

Posted by: Chad Oldfather | May 19, 2019 6:49:08 PM

Anonvis is spot on. I applaud this series of posts but I don’t expect to learn much based the the hiring history of these programs.

Posted by: Anon | May 18, 2019 2:58:28 PM

I agree completely with Anonprof06.
Perhaps I am missing something, but the data appears to show clearly that proxies are determinative for the vast majority of new-hires at T-5o schools. When too many candidates tick all the boxes...a new box is added. VAPs are the most recent addition.

At the moment, the ideal profile looks like:
Clerkship: Supreme Court/Appeals Court
Top 5 VAP/Elite PhD - possibly both
1 Top 5 LR article

Forty years ago, it was all about the "old boys". Today it's all about proxies/ticking boxes.

Having said that. The system works. Could it be better? Sure. Are we losing talent around the edges? Certainly. Nevertheless, hiring candidates who tick all the boxes "works" - for the most part.

Personally, I find that the discourse surrounding this topic is entirely hypocritical.

People should just own up to it: hiring a candidate who ticks all the boxes is a low risk move. Hiring a candidate with an "exotic" profile OVER a candidate who ticks all the boxes is a high-risk proposition. As long as there is a bountiful supply of candidates who tick all the boxes...candidates with unconventional profiles stand little to no chance.

I mean...just look at the profiles of Assistant Profs hired at T-14 law schools over the past decade...

Posted by: AnonVis | May 18, 2019 2:18:52 PM

Really interesting post, to which I have two quick comments. First, as to whether a fellowship is required to be hired — looking at this year’s hiring spreadsheet, it appears that, with two or three exceptions, every successful candidate had a doctorate or a fellowship. (This is not an exaggeration; look for yourself). The era where law schools hired tenure-track professors straight out of practice is over. Second, as to whether fellowship directors are (successfully) searching for diverse candidates and diamonds in the rough, the answer is pretty clearly “no.” Candidates who once would have been hired directly by elite law schools, those with the traditional qualifications (elite school, law review, prominent clerkship), are nowfilling up the best-known fellowship programs. There may be good reasons for that - do we really think these people should be turned down for Climenkos? — but that is clearly what has happened. Whether the overall result is good or bad I’ll leave to someone else to decide.

Posted by: anonprof06 | May 17, 2019 9:01:12 PM

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