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Friday, June 14, 2019

This is how you establish broad injunctive relief

The D.C.Circuit affirmed part of an injunction prohibiting enforcement of an ORR policy barring unaccompanied children from obtaining pre-viability abortions.

This is the type of case in which many courts have been issuing universal injunctions, despite that enforcement against non-plaintiffs does not affect individual plaintiffs. But the district court here took the procedurally appropriate approach--certifying a 23(b)(2) class of "all pregnant, unaccompanied immigrant minor children (UCs) who are or will be in the legal custody of the federal government," then enjoining enforcement of the policy as to class members. We get to the same place, but through appropriate procedures, as it should be for a system in which constitutional review occurs within the scope of civil litigation. This is why the Court enacted 23(b)(2).

The majority opinion (per curiam for two judges) runs more than 70 pages. It applies the "inherently transitory class" exception to avoid mootness and considers the effect of the "one-good plaintiff" rule in multi-party individual actions as opposed to class actions. It spends a lot of time on the appropriate scope of the class, as opposed to the appropriate scope of the injunction--which is where the focus should be.

There is an interesting interplay between the inherently transitory and capable-of-repetion-yet-evading-review doctrines as to mootness, in that the former justifies the limits on the latter. C/R/E/R requires that the harm be capable of repetition as to the plaintiff; it is not enough that someone else might be subject to the harm. Protecting beyond the plaintiff requires a class, which is when the former doctrine kicks in. That leaves a gap--mootness cannot be avoided in an individual action to prevent harm to a non-party who may be subject to enforcement of the challenged regulations. But that is the point--the court provides remedies for parties, through the procedural mechanisms for establishing parties.

The government faces a choice. Justice Kavanaugh is recused because he was on the first panel to consider this case (the majority opinion discusses and rejects the position Kavanaugh took as to allowing the government to delay the procedure). So review would almost certainly produce an evenly divided Court affirming the lower court. So the government's best option is to obey the injunction, stop enforcing the policy and/or come up with a new policy, and hope that Justice Ginsburg retires.

On that note, a question for judicial-recusal experts. Imagine the following: ORR amends its policy to something slightly less restrictive and threaten to enforce it; plaintiffs return to the district court with a motion to enforce the injunction and/or an amended complaint, arguing that the new policy violates the rights of the same class; district court grants the motion and modifies the injunction to prohibit enforcement of the new policy; D.C.Circuit affirms. Must Kavanaugh recuse? The challenge is to a different policy. But it is the same litigation in which he ruled as a lower-court judge. Thoughts?

Posted by Howard Wasserman on June 14, 2019 at 04:39 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)

AALS CFP: Race and Racism in Food and Agriculture

Call for Papers

AALS Section on Agricultural and Food Law

(Co-sponsored by the Sections on Minority Groups and Environmental Law)

Food and agriculture play important roles in maintaining systemic racial oppression. From the dispossession of Black and Latinx farmers to migrant workers’ rights to food-related health disparities, there are multiple opportunities for legal and policy interventions into food and agriculture that would lead to greater food sovereignty, food justice, and racial equality. This panel explores several topics at the intersection of critical race theory and food and agricultural law and policy.

Up to 2 papers will be selected for presentation on Thursday January 2nd from 3:30pm-5:15pm. Please submit an abstract of 250-500 words by Monday August 19 to Andrea Freeman at [email protected]. Executive board members will review the papers and notify selected presenters by the first week of September. Panelists must pay for their own travel. Please direct any questions to Andrea Freeman. 

Posted by Howard Wasserman on June 14, 2019 at 09:31 AM in Teaching Law | Permalink | Comments (0)

Interview with Susannah Barton Tobin from Harvard Law School on the Climenko Fellowship Program

Here is the second interview in my series interviewing VAP and fellowship directors.  Thanks to Susannah Barton Tobin, the Managing Director of the Climenko Fellowship Program and Assistant Dean for Academic Career Advising at Harvard Law School, for participating in this series!  An edited transcript of our conversation is below, and I have invited Susannah to respond to any questions in the comments. 

You can read more about the structure of these interviews and other caveats related to them here.  The interview itself is after the break.

Q: Hi Susannah.  Can you start by telling me about your role with the Climenko program?

A: I am the managing director of the program.

Q: What does that mean?

A: I run the legal research and writing program, and I work with the fellows in order to help them get ready for the market.

Q: Great. I'm going to basically move through the fellowship program chronologically starting with the application process and then moving to the fellowship years themselves. When does the Climenko program start to accept applications for the following year?

A: September 1st -- we have a rolling application process.

Q.  What do people need to submit with their application?

A.  A cover letter, CV, research agenda, writing sample, and 2-3 letters of recommendation.

Q: When do you typically start conducting interviews?

A: Usually in October, but it varies depending on the availability of the committee members and other factors.

Q: Do you do a screening interview? How do the interviews work?

A: We have one round of interviews with the committee, which is myself and two faculty members. Right now, it's Tom Brennan and Ruth Okediji. The interview is similar to AALS-style interviews with the bulk of the questions on the candidate’s research agenda and the projects they’d like to work on during the fellowship. 

Q: How many people do you typically invite to interview?

A: I would say about 20-25.

Q: How many fellows do you ultimately select in a given year? I'm sure it varies but in general.

A: It varies but it's usually six or seven.

Q: When does that application process typically end? When would you say in the year, "Okay. We're done."

A: That varies a ton. Ideally we'd like to be done early in the new year, sometimes it stretches into the second semester.

Q: You said you typically hire six to seven a year. What does that depend on and how many years do the fellows stay?

A: There are 13 fellows, which is related to the number of sections of legal research and writing at the law school.  We have a total of fourteen sections, and I teach one.  The fellowship lasts two years, so in any given year, six or seven will be leaving. We have some flexibility in the length of the fellowship, if someone takes a leave or is coming back from a clerkship.

Q: How many applications do you typically receive for those six to seven positions?

A: About a hundred.

Q: When it comes to fellows' teaching responsibilities, how do you try to gauge their teaching ability in the application process?

A: Similar to the way it happens in the entry-level process, we assess a candidate’s ability to explain legal concepts clearly, to respond effectively to questions. If someone in their application has had prior teaching experience, we'll look at the teaching evaluations or other information from their recommenders about that teaching background.

Q: When you say you try to gauge how they answer questions, is there a job talk? What does that half day or day of interviews look like?

A: It's generally a morning interview. It varies a little bit in length, and it’s not a job talk, but there's a series of questions about whatever paper idea the candidate has proposed to work on during the course of the fellowship.

Q: Is that with the three committee members or do other people participate in that interview process?

A: It's with three committee members and then after the interview, the candidates also go for coffee with some of the current fellows, which is not a formal evaluative part of the process, but it’s an additional touch point.  The Dean gives the final approval on all offers.

Q: How much does practice experience matter in the hiring process?

A: I think it's important. Depending on whom you ask there might different answers to that question but it's both valuable for our students in the legal writing class and also valuable for the fellows in the entry-level process. 

Q: How much practice experience are you typically looking for? Is there a sweet spot?

A: I don't think there's a sweet spot. I think my observation of the market over the past decade or so is that a little bit more is better from a market perspective. I don't know if you feel this way, but I think maybe 15 years ago 1-2 years was enough. It depends on what they're doing but I think we're seeing more of 3-4 years now.

Q: I'll just offer my own perspective here.  As a hiring committee member, I'd love to see the fellows have a bit more practice experience. I think four, five, even six years. It's hard to get, but that would be great. I just throw that out there for what it's worth.

A: That’s very helpful to hear, for sure.

Q: Let's turn to the research side. The successful candidate, what do they typically have in terms of research or a paper? Do they typically have a full draft of a paper, a published paper, an idea for a paper? How far along are they?

A: It varies.  We ask applicants to submit a research agenda and a writing sample.  I think as the market has become more competitive in general, we see more people applying who have one or sometimes two prior publications, although that’s not a requirement for us.  We’re interested in the quality of the writing sample, whether that’s a draft or a student note, they're showing us their ability to do scholarly writing. We're really interested in the research agenda and the proposed project or projects that would be completed during the course of the fellowship.  Some people have a draft in progress that they’ve been working away at on nights and weekends that they want to show us. 

Q: That was going to be my next question.  The people who come in with a paper other than a student note, do you have a sense as to how they're managing to write that? Is it while they're in practice, nights and weekends, or typically are they coming in from a PhD program or another fellowship program? How are people logistically getting that writing done?

A: Yes to all of those examples. We've definitely had fellows coming from practice who tell us that they have worked nights and weekends.

Q: That was me!

A: My hat is off to you. It's just an extraordinary time management accomplishment separate and apart from the law firm work, how do you do that with no sleep? Sometimes people have worked on a long paper in law school and kept it to expand on similarly around the edges of their practice experience. 

Certainly, people who are coming out of PhDs or are working on PhDs have dissertation chapters or other projects that they've been working on.  So we see a little bit of everything.

Q: You said you're looking at their research agenda. How developed is that research agenda for people coming into a fellowship? Are these people who can tell you, several papers out, what they'll be working on? Or is it something typically more modest than that?

A: I think it can be both. We're not really looking for something that is projected out over four to five years the way, I think, an entry-level candidate would have.  We really want to see fairly detailed proposals for one or two papers accompanied by some general statement of how they view their scholarly approach and a set of ideas that they seem interested in.  But we don’t view a research agenda as a contract; we certainly don’t expect that they should be coming in with six or seven ideas.

Q: I'm sure that'll be helpful to people. Thinking about preferences that you might have through the process, do you have a preference for particular curricular areas? Is that a thumb on the scale ever? Certainly, you see people saying, "Gee, every school wants corporate" or "Every school wants criminal law." Is that something that you take into account on the hiring side?

A: We don't go in with curricular needs in mind. I think as someone who advises people on the market, I'm quite sensitive to trends but I don't think they're dispositive at all for our decision-making process. It might be after we've hired someone, if someone was thinking about a couple of different strands of scholarship, we might have a conversation about which ones might be more marketable but the point of academia, I think, as Martha Minow has said, is getting to own your own mind.  I don't really want to urge people to teach something they don’t feel excited about.

Q: Right. Then, you'll have to teach it the rest of your life.

A: Exactly.

Q: Do you have a preference for candidates with PhDs? How does that factor into the decision-making?

A: We don't have a preference for candidates with PhDs. At least one of the reasons there's been a rise in PhDs in the market as a whole is that those candidates have been at work on scholarship for a while. Their files might “pop” more but I think we are just as interested in practice experience, and mindful that the program gives people time to write which people in PhD programs have already had.

Q: Do you make a special effort to hire candidates from diverse backgrounds?

A: We do our best to recruit a class that's diverse and excellent across all dimensions.

Q: Are there any other criteria that come into your decision-making? We've talked about practice experience, teaching experience, research agenda, other things. Is there anything I'm missing?

A: I do think that support from faculty recommenders is important to us to see because it helps us assess in areas outside our own expertise how scholars are looking at their work. It also anticipates their support on the market down the road.

Q: What role do faculty members have in the process? Do successful candidates typically have somebody at Harvard who's saying to you, "Hey, this person's good"?

A: Certainly, for the candidates who attended Harvard as law students, we take very seriously recommendations from faculty, but also, they don't need to have gone to Harvard. We take very seriously support and letters from whomever they asked to submit on their behalf.

Q: When I talk about this project on the blogs, I often hear from candidates who may not have the traditional markers of someone in law teaching. Maybe they didn't go to Harvard, Yale, Stanford, or a similar school. Maybe they don't have an elite clerkship. And they want to know what they can do to stand out in the application process.  What advice do you have for them?

A: I think it's a really important question. I do think that the market, both the entry-level market and therefore the fellowship market, is looking for people who have interesting ideas.  When I'm looking at a file, I think that the research agenda is absolutely essential.  As we’ve discussed before, it doesn’t need to be super-long, it doesn't need to have a million projects, but it has to have an articulated sense of an idea that we can then have a conversation about in the interview.

Q: You think that can make up for a lack of some of the more traditional proxies?

A: I think they can make an application stand out, yes. If you flip the script and consider someone who has checked all the traditional boxes of top law school and fancy clerkship, but doesn’t have a strong research agenda and a well-developed idea, it would be hard for them to get through the process.

Q: All right, let's switch from the application over to some of the fellowship basics, some of the terms of employment. You said, the fellowship typically lasts two years. Are there times when it last longer than that? Is the fellowship renewable? If so, under what circumstances?

A: The fellowship is typically two years. There have been circumstances where it's been extended.

Q: Are you comfortable telling me how much fellows are paid per year?

A: Yes, it's a stipend of $70,000 a year.

Q: Do fellows receive health benefits?

A: They do.

Q: How about access to university or subsidized housing?

A: Yes.

Q: That's great. Tell me more about that -- what type of housing benefits are available?

A: They have access to the Harvard real estate lottery.  Basically, you get to prioritize certain kinds of Harvard-owned apartments and potentially get a good spot near campus with Harvard as your landlord.

And the timing of the lottery allows you to go through that process before the rest of the rental market really picks up so you get two bites at the apple.  Depending on the fellows, some people are thrilled to have university housing that they don't have to worry about. Other people would rather rent in Cambridge or Somerville. 

Q: Great. I was part of that lottery many moons ago. Do your fellows receive travel funding or other professional development funding?

A: Yes. They have a budget of $1,500 a year for conference travel, and then $1,500 a year for research assistance.

Then the year that someone is going on the market, they get an additional $1,000 that goes toward market-related expenses.

Q: Is it possible to get those amounts increased, if someone says, "Hey, I was just invited to this great conference at Richmond. Can I get additional money?" Is that ever possible?

A: We do our best to support opportunities like that.  Because there are 13 fellows, sometimes people are using all their budget for research assistants but not their travel budget, so sometimes there’s some trading that goes on.  We try to do the things that are helpful to them and their work.

Q: Do fellows have to live in Cambridge or Boston? Obviously, there's the teaching responsibilities, but if somebody wanted to commute in, is that possible?

A: Yes, it is.

Q: Is that common?

A: It's not common but it happens. I would say there are at least one or two fellows a year who commute from either DC or New York.

Q: Now let's turn to the fellowship year itself and how to make the most of it. Tell me about the culture of the fellows. How often do they get together among themselves and in what capacity? Do they have a regular workshop series or anything like that?

A: They have a regular workshop series, which, depending on the time of year, is weekly or every other week, depending on how busy that section of the semester is. We call it the half-baked workshop. The idea is to have a half-baked paper topic. You can pitch it to your colleagues and get really good feedback, make sure that you’ve clarified the idea before you devote a ton of time to actually writing the piece.  And in exchange for sharing your half-baked idea, you get a fully-baked dessert. 

Q: That's great. Who participates in that workshop?

A: It's all the Climenkos, and I attend as well.

Q: How many fellows does Harvard have roughly? Obviously, you said there's 13 Climenkos. Just overall in the whole school, though, how many fellows who hope to go on the law teaching market are there at any given time?

A: That number is a little hard to pin down, but there are a number of fellowships, including the Reginald Lewis Fellowship, the Berger Howe Legal History Fellowship, the Corporate Governance Fellowship, and the Private Law Fellowship. There’s a full list here. Not all those people are going on the market at the same time in a given year, but I would say there's somewhere between 7 to 12 additional fellows not affiliated with our program in a given year.

Q: They all participate or have the option to participate in this workshop series, the half-baked?

A: The half-baked workshop is primarily for Climenkos, though if the topic relates to the work of a fellow from another program, she or he may join.

Q: Do the Climenkos participate (or how do they participate) in the broader intellectual life of the law school? Are they allowed to go to other faculty workshops?

A: Yes. They are welcome and encouraged to go to the standing faculty workshop which is weekly and then also welcomed and encouraged to attend the specialty workshops, which if you attended all of them you wouldn't have time to do anything else.  We have a Legal History workshop, a Law and Economics workshop, an International Law workshop, Public Law workshop, a Private Law workshop, and a Criminal Law and Policy workshop, among others.  So one of the things I do with the fellows when they come is sit down and say “what are the conversations you want to be joining while you are here?” and make sure they are plugged into those.

Q: Are you the fellows' direct supervisor?

A: Yes.

Q: What does that mean? What is your role day-to-day with them?

A: I work with them on teaching and I also read their work and talk with them about the logistics of the market, suggest that they go to conferences, connect them to fellows who have left the program over the years who are in their area.

Q: Are fellows matched with an assigned mentor at Harvard, or are they guided towards people in their area? In other words, how do they meet people in their area of interest at the law school?

A: We ask incoming fellows to identify faculty with whom they are interested in working, and we can match up with formal mentors who are in no way meant to be the limit of their engagement but the entry point to the rest of the faculty.  So mentors will read work and talk to fellows and also help connect them to different opportunities here and with faculty who are relevant.

Q: How about meeting faculty at other law schools? Are they given assistance with that?

A: Yes, in an informal way. I think as the fellowship program has gotten older, we have a number of alumni at schools around the country, so a lot are connected that way and then either keep those points of contact or through people that faculty here know are doing work related with fellows’ areas of interest.

Q: If a fellow is working on a particular paper, what type of feedback might they get? Obviously, they're doing the half-baked workshop, they're getting feedback from you. What else might they expect on a particular paper or idea?

A: I think our real priority is emphasizing and honing the idea before getting too far along. I think, as I'm sure you've experienced, you'll get a range of feedback when you ask for it, sometimes people will have coffee and talk about ideas. Sometimes people will read drafts and give comments. Sometimes they'll read a draft and not give comments but they say you should talk to so-and-so about this idea. It depends.

Q: Is the same true when it comes to fellows' research agendas that they plan to use on the job market? What type of feedback are they getting there?

A: It's the same. I read it. The mentors will usually read it and give feedback. I encourage the fellows to share it with colleagues at other law schools and get feedback.

Q: Do fellows get any help in terms of placing their work in the law review submission process? There is always this lore that fellows have some help there. Have you seen any of that?

A: I don't. I saw the question when you sent it along and it made me chuckle because I haven't seen that. I've seen it on the blogs, and I know it's a deeply-held myth but I haven't seen it. I will say if I had to imagine the source of it, it’s the observation that there's been an increase of top-tier law reviews publishing fellows’ papers.

I think that is not about their papers being placed by faculty but, rather, that I think the students perceive the significance of placement to people interested in the entry-level market. Law review editors might be more interested in taking fellows’ work because they feel as if they are making contributions to academic placement.

Q: That makes sense. I'm hard-pressed to imagine what that help placing would look like but, again, it showed up on the blogs enough that I thought, "I have to ask."

A: I think it's important to ask. I'm happy to say my view which is, truly, it's not happening here.

Q: Are fellows given assistance finding recommenders? This may go back to some of the connections we were talking about earlier. Just wonder if there's any other assistance if somebody comes in without a natural list of recommenders?

A: We certainly talk about that throughout the course of the fellowship, making sure that people are in conversation with scholars in their field and, if they don't have people that they're coming in with or if they're switching from a different area into a new area, connecting them with people here and also connecting them with people at other law schools. 

Q: That's great. What is the paper schedule of the fellows? You said you want them to know what they're going to be working on at the fellowship. Is the idea that they'll send something out that first spring of their first year?

A: That's our hope. Our hope is that there'll be a paper draft that goes out in the February cycle of the first year. That sometimes happens and sometimes it doesn't. I think different faculty have different views about the optimal time it takes to write an excellent paper. Sometimes people think, "It'd be great to get one paper done, and then, start on a new paper right away." That's a pretty tight turn-around.  Maybe someone comes in with something that's pretty far along and they can finish it up and then start a new paper. That might happen but more, I think, what we see is people working on a draft, hopefully getting it out in the February cycle, but continuing to hone it after that.

Q: Candidates who come in with a PhD, do you have any special advice for them, anything they should particularly keep in mind?

A: I think my first piece of advice would be to answer for yourself: why law, as opposed to the Ph.D. department from which you might be coming. That's a question that will, I think, be asked either implicitly or explicitly when you’re on the market, and to imagine the different audience for your work as you're trying to transition to legal scholarship. What is the value-add of the methodological training you received as a Ph.D. for being a legal scholar? I think that that evolution from being a Ph.D. student into being a law professor is an ongoing one but it's important to think about before going into the process.

Q: Let's switch over to teaching. What precisely are the Climenkos’ teaching responsibilities?

A: Each Climenko teaches a section of first year legal research & writing which is a class of 40 students. That's a year-long course they teach both years of the fellowship. Then they have the option in the spring of the second year of the fellowship to propose to teach an additional course, either a reading group or a seminar on a topic of their own choosing, which some fellows do and some don't. There are schools of thought, pros and cons, for what the right thing is to do. Some people are very excited to do it; other people may choose to work on their next paper.

Q: You said they have 40 students in their legal writing class?

A: That's right.

Q: What are their grading responsibilities? That's a lot of memos or briefs to grade. What does that look like during the year?

A: There are two memo assignments in the fall for which the students write a draft and a revision and conference with fellows. So four rounds of marking in the fall and two rounds of conferencing. Then in the spring semester they pair up and do the Ames appellate brief, which I’m sure you remember.

Q: I remember it! Yes.

A: For that, they do a draft and revision of the brief and one round of conferencing.

Q: If you were looking at their time, how do you think their time breaks down between teaching, spending time of their scholarship, and whatever other responsibilities they have. Do you have percentages that you try to keep in mind with the fellowship?

A: I think we try to keep everything at 50/50, although not 50/50 every day or every week. There are periods like any academic schedule, there are periods of time in the year where they're very, very focused on their research and writing, in the summer and late December, January.  Then there are really intense periods of teaching and conferencing and marking their papers during the semesters.

Q: Do you try to schedule those around job market time periods? How does the legal research class line up with the job market time line?

A: We are attentive to it but I wouldn’t say that it's possible to fully schedule around it.

Q: It's a pretty long process. It would be hard to schedule around it entirely. What about training, feedback, or mentoring related to teaching?

A: We do a teaching orientation for the new fellows when they arrive. We have teaching meetings with the group throughout the year. I review their student evaluations and talk to them about the feedback, any trends we might see in the evaluations. We’ll have faculty come in and talk with the fellows about different approaches to teaching over the course of the year.

Q: You mentioned an orientation. What does that involve?

A: They do a mock class and also give mock feedback on writing assignment and a mock conference, in addition to a lot of “Here’s how HLS works.  Here are the other courses that the students are taking and how this course fits in their schedule.” Meetings with the librarians, etc.

Q: Okay. When it comes to the assignments themselves, are the Climenkos drafting the assignments or they are given these assignments?

A: They're given a variety of assignments from which to choose, but they are also welcome to make variations, adjustments as they wish that incorporate their own interests and experiences.

Q: Is the same true, for example, about what they are going to do in class on a given Wednesday? Is there a course plan that would take them through the semester, or are they coming up with that?

A: There's a course plan that takes them through the semester.

Q.  Do Climenkos have any other responsibilities during their fellowship?

A.  I think I would say informal ones because it's the smaller class for the students, they get to know their students very well and do a great deal of academic and professional advising with their students. They also write recommendation letters, but there's no formal administrative service component to the fellowship.

Q: Let's step back for a moment. If you were talking to a candidate who perhaps had multiple options when it came to fellowships, what would you say to try to sell them on the Climenko? Why do you think this is where a new law teacher should start their career?

A: I have two answers. One is my biased answer and one is my attempt at being a little less biased.

Q: I appreciate both of those.

A: The biased answer, of course, is that we have a great program. I think that the two main advantages to it are, first, the opportunity to come to HLS and work with the phenomenal faculty which through its size and depth affords lots of opportunities to learn and grow as a scholar.  We have really outstanding scholars and teachers.  We also have terrific faculty from other departments participating in the intellectual life of the law school, and the research librarians here are unsung heroes.

Then, the size of the program allows for a real community of fellows to grow and support each other through what is undoubtedly a stressful process, but to have the group working together, reading each other's work, supporting each other through the process is, I think, really special. We see that year over year. We had a Climenko reunion in March where about 50 professors came back to Cambridge and were reminiscing about that component of the program, particularly the friendship and the collegial support that they got from each other. Those are the two things I would say as a bias.

Here’s my non-biased advice, which I give to alumni of the law school because I serve as the Assistant Dean for Academic Career Advising. I work with our alums who are considering other offers. Sometimes they don't apply to the Climenko because of geography or some other reason, and they're considering other offers. My general advice is you should choose the fellowship program that makes sense for your work and your life.

I would love it if the best option is the Climenko program but sometimes it's not, whether because there's this particular scholar you want to work with at another school or the structure of a program that works better for the way you work. Some people thrive on the balance of teaching and scholarship. Still other people would prefer to have more uninterrupted time without teaching obligations before they go on the market. Other people want to be in a small program. Some people like having a big program. I think it has to be an individual decision, really, really focused on how your approach to your academic career would be best supported.

Q: That's good advice. Same thing is true when picking a law school to eventually join long-term, I think.  Do you have any advice for fellows when it comes to really making the most of the fellowship? When you think back on fellows who have been really successful in how they've used those two years, what have they done?

A: Great. I think the main reason one would do a fellowship is to be immersed in the academic world and the conversations because it should be what is drawing you to academia, and also, allows you to be part of that conversation and understand how it works before you go on the market. So really taking advantage of the opportunity to engage with faculty, both one-on-one and in the workshops, is incredibly important to having a good experience.  It's a little bit of modeling what your life is going to be like when you're a professor. The sooner you can start doing that, the better.

The other thing is- it comes to my bias again - I think doing a teaching fellowship is incredibly valuable because that's what you're going to do as a law professor. Students are amazing and figuring out how you're going to balance teaching, scholarship, and supporting your students is something you need to do. Having the opportunity to do it in a fellowship program with a smaller class is a real privilege. I think people who have thrived in this role have thought about the fellowship as a cohesive combination of teaching and scholarship. They have been really successful.

Q: Let's turn to the job market itself and when candidates actually go on the market. Do they receive mentoring related to the hiring process and if so what type?

A: We have a market calendar, which we use to walk through the major deadlines, when ideally the fellows should have a draft research agenda, when they should have a draft of a paper to share with their recommenders.  We also talk about filling out the FAR form.

Later on in the summer, we’ll do practice AALS-style interviews, through a combination first internally with the fellows asking each other questions and then working with faculty advisers for a second round of practice interviews. We do practice job talks at the start of the fall, so it's an ongoing conversation of hitting those different benchmarks in the process.

Q: When you say that they get a chance to do their job talk, who's offering them feedback there? How many faculty members?

A: Similar to the mock AALS screening interviews, we do an internal round with just the fellows, then an external round with faculty mentors and for the faculty in the field who may not be formally assigned mentors but who have expertise related to the topic of the paper. So depending on the paper, it'll be six or seven faculty members in the room

Q: Are the other Climenkos present for that as well or just the faculty?

A: The other Climenkos are there too.

Q: Are you the person who is basically responsible for shepherding them through this process?

A: I spend a lot of time on it, but the faculty mentors also are really helpful in working with the fellows through the process. 

Q: Do fellows have the opportunity to receive feedback on their application materials from faculty and from you?

A: Yes, both.

Q.  If you wanted to look at the Climenko track record, do you happen to know off the top of your head the percentage of Climenkos over, say the last 5 or years, however far back you want to go, that has landed in tenure track positions at U.S. law schools?

A: Since the start of the program, 91% of fellows who have gone on the job market have landed tenure track positions.  All of the positions are on our website by year.

Q: Do you mind if I link to that in the transcript here?

A: Totally fine. [Here’s the link! Scroll down under the map for the full list.]

Q: Perfect and how does the program support fellows who may need to go on the teaching market more than once if they don't land somewhere in the second year of their fellowship?

A: My view is that, as a Climenko, you have the support of the program regardless of whether you make it the first time or not, but sometimes people will go back to practice or take a year to do something else.  We still support them in that process when they go on the market.

Q: The fellowship itself is not renewable for the third year, typically?

A: It's not presumptively renewable, right.

Q: All right, let's talk about some of those broader policy questions because obviously, the law teaching market has changed a lot, certainly since I was on the market. What do you think about the rise of fellowships and VAPs as an entry point into this profession? What do you think are the benefits? What do you think are the costs?

A: The benefits are ideally making another entry point. If we go way back to the classic model of law teaching 40 years ago, if you did really well at law school and you clerked, then you were called back to the mother ship. Having more entry points that are not that, I think, is incredibly important. Fellowships are one of those additional entry points that recognize the need to have time to research and write before you go on the market.  Through a fellowship, you are immersed in the academic life and the conversation about scholarship, which is just a great benefit for young scholars learning how to do the work of being a scholar.

What are the drawbacks? I think, perhaps unintentionally, the result has been that while trying to have more paths into academia, we’ve created an appearance that there is a primary path or that having a fellowship or having a PhD is effectively a prerequisite, and that may be unintentionally narrowing access. 

Q: What do you think about the fact that it's obviously hard for a lot of people to do a fellowship? To uproot their life, to move to a particular city, which may end up closing the profession to some groups of people.

A: I think that's a really serious consideration. Part of the reason why we don't have a residency requirement is a recognition of the fact that it is a hurdle for people, and of course the finances are a huge consideration as well. I think the hope is-- I guess our argument is it's hard to get into the academy full stop. Ways that we can make that easier are a help but not a full solution.

Q: Do you think that the VAP and fellowship programs have a responsibility to help open up law faculty positions to people from diverse backgrounds, non-traditional backgrounds? How do you think the Climenko program hopes to do that?

A: I think everyone involved in the legal academy has the responsibility to do precisely that, including fellowships and VAP programs. There are lots of ways we have to think about diversifying the academy.  And one of the ways is your interview series that is so helpfully providing insights to make this process more transparent.  My view--I talk to candidates all the time on the phone and over email--is I want to make it as easy as possible for people to apply and to understand exactly what a successful application looks like. I think aggregating that information for the programs can be helpful.

Q: Yes, hopefully.  That's the goal. We'll see how it works in the end.

I'm sure you've heard the criticism that VAPs and fellows may get too much help on their scholarship and that therefore, it's hard for hiring committees to know how much of the work comes from the VAP or fellow themselves and how much comes from, say, Harvard Law School faculty? How do you respond to that criticism?

A: It's a little bit analogous to our discussion of placement in law reviews.  I don't buy it. I think the entry-level process itself does an excellent job through interviews and conversations and certainly the job talks of assessing the candidates' originality and ownership of their own scholarship. To the extent that there are candidates who have been overly influenced by advisers, which I'm not convinced is a serious issue to begin with, the entry-level market is good at sussing out  candidates’ weaknesses so that it’s not an issue.

Q: Anything else you want to pass along about the state of law faculty hiring more generally?

A: Good question. I'm being redundant now but I do think more transparency in the process is better and having some of these assumptions either unsettled or at least bought up to the surface is important so that people understand on both sides what's happening.

Q.  Yes, who knows, maybe next I'll do the same type of interview series but with hiring chairs. We'll see. Thanks so much. I really appreciate it!


Posted by Jessica Erickson on June 14, 2019 at 09:16 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (3)

Thursday, June 13, 2019

A dramatic reading of the Mueller Report

In 2012, PBS aired a documentary called The Central Park Five, produced by Ken Burns, his daughter Sarah, and David McMahon. It was excellent and thorough (although produced while the civil rights suit was pending and before the $ 41 million settlement). And it produced no public reaction--Linda Fairstein kept publishing books, Elizabeth Lederer kept adjuncting at Columbia, and Donald Trump was on a path to being elected President. But mere weeks after Netflix dropped DuVarney's docudrama When They See Us, Fairstein no longer has a publisher and no longer is on several boards and Lederer no longer teaches at Columbia.

The difference, it seems to me, is the drama of the docudrama compared with the reality sought in the documentary. When They See US depicts Fairstein as the big bad,* determined to get these rapists and stubborn to the point of arrogance when confronted with evidence of their innocence.** Lederer is depicted as plagued by doubts about the case, but charging ahead and being tough in her cross examination, including bringing out negative or embarrassing information about the defendants.*** The drama, the pathos, creating heroes and villains--you get that in a docudrama but not in a documentary.

[*] Along with the cops, who we expect to behave badly.

[**] It probably does not help Fairstein at this moment to have been played by Felicity Huffman.

[***] As, of course, she should as a good lawyer representing a client.

Which brings me to the Mueller Report. A press conference will not do it (obviously). Neither will congressional testimony, even if the point is just to have Mueller read the report live on camera.

Instead, we need a dramatic reading. Get James Earl Jones, Morgan Freeman, Meryl Streep, Dame Maggie Smith, Nancy Cartwright (the long-time voice of Bart Simpson), and any other great-sounding actors and actresses. Put them on TV and have them read or perform the report in the most dramatic fashion possible.

Posted by Howard Wasserman on June 13, 2019 at 10:34 AM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

The first thing we do, let's fire all the lawyers

The fallout from When They See Us, the Netflix series on the Central Park Five, continues.

Linda Fairstein, the attorney who led the DA's sex crimes unit, was dropped by her publisher and forced to resign from several boards, including the Board of Trustees of Vassar College. Elizabeth Lederer, the attorney and lead prosecutor, will not return as an adjunct at Columbia Law School, amid student protests and calls from the Black Law Students Association not to renew her contract. On the other hand, none of the police officers who engaged in the coercive questioning has been sanctioned in any way--none has been fired or lost current non-policing gigs. Nor have other top city or DA officials (if any are alive--former DA Robert Morganthau is still active at 99). And the prominent NYC citizen who took out a full-page ad calling for their execution? Well, we know where he is.

One conclusion is that, as lawyers, Fairstein and Lederer must be held to a higher standard. We expect cops to do whatever it takes to get a confession to clear a case. But we expect lawyers to be justice-seeking "Men for  All Seasons," stepping back from the heat and passion of the moment to cast a thoughtful and rational eye and to slam on the brakes when they spy injustice, such as improper police questioning. So when prosecutors barrel forward and do their best to represent their client, they are excoriated, and must be sanctioned, for being part of the problem in the criminal-justice machine barreling over communities of color. Of course, had either stood up at the time, they would have been excoriated for not supporting law enforcement, creating further rifts in an already-tenuous relationship between police and prosecutors.

Is there anything either could have done to avoid the fallout? Would it have been enough had each apologized and acknowledged that they had the wrong person but that they went forward with what they had in 1989? (Fairstein has dug in her heels, I am not sure what Lederer has said about the case or the exoneration). Is it enough to acknowledge mistakes? Or are both tainted by association with a racially charged wrongful conviction, such that neither she be allowed to continue in polite society or in the business of teaching law? To the extent any scorn might be heaped on Morganthau for allowing the prosecution to go forward, he says he his proud of the exoneration.

The obvious analogy is with the recent controversy over Harvard dismissing Ronald Sullivan as a res college dean (although not as a member of the HLS faculty) following student protests over his involvement in representing Harvey Weinstein. Those who defended Sullivan and criticized Harvard (and the students who pushed for Sullivan's dismissal) emphasized the Sixth Amendment and the need for lawyers to zealously represent the worst of the accused. The possible distinction is that prosecutors are supposed to have a different obligation--not to a client who enjoys certain constitutional rights, but to doing justice. But once prosecutors decide, in their best justice-directed judgment, that they have the right defendants, they are supposed to just as zealously represent their clients (in this case, the People of the State of New York). It seems perverse to punish a prosecutor, who considered justice but reached a good-faith conclusion, for being too good a lawyer. I am curious how people reconcile opposition to what Harvard did to Sullivan with what Columbia did with Lederer--is it the lack of contrition?

Finally, we should not overlook that the only people involved in the case from the government's side suffering any adverse professional or personal consequences are women. Not the man who supervised them or the men who mistreated the kids and coerced their confessions. And not the man who called for their execution. Make what you will of that.

Posted by Howard Wasserman on June 13, 2019 at 10:13 AM in Culture, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Tuesday, June 11, 2019

The Fiduciary Theory of Article II

I'm proud to announce the publication of Faithful Execution and Article II (co-authored with Andrew Kent and Jed Shugerman) in the Harvard Law Review's latest book.  Although I had obviously been interested in the public law-fiduciary law interface in prior work, writing and researching with careful historians was a new and exciting -- and oftentimes humbling experience.  Having started thinking about these issues during the Obama years (when questions of presidential overreach surfaced in immigration policy, drug enforcement priorities, and waiver for ACA implementation), they obviously have continuing relevance in the current climate, where a fiduciary conception of the presidency would tend to focus us on conflicts of interest and profiteering from office.  Although we leave to others to decide whether our historical lessons create any action items for our current politics, our constitutional law is always informed by history even when it is also politics by other means.  At the least, I feel that we tried to add some really thorough and important history to the mix.  Here is abstract:

Article II of the U.S. Constitution twice imposes a duty of faithful execution on the President, who must “take Care that the Laws be faithfully executed” and take an oath or affirmation to “faithfully execute the Office of President.” These Faithful Execution Clauses are cited often, but their background and original meaning have never been fully explored. Courts, the executive branch, and many scholars rely on one or both clauses as support for expansive views of presidential power, for example, to go beyond standing law to defend the nation in emergencies; to withhold documents from Congress or the courts; or to refuse to fully execute statutes on grounds of unconstitutionality or for policy reasons.

This Article is the first to explore the textual roots of these clauses from the time of Magna Carta and medieval England, through colonial America, and up through the Philadelphia Convention and ratification debates. We find that the language of “faithful execution” was for centuries before 1787 very commonly associated with the performance of public and private offices — especially those in which the officer had some control over the public fisc. “Faithful execution” language applied not only to senior government officials but to a vast number of more ministerial officers, too. We contend that it imposed three interrelated requirements on officeholders: (1) a duty not to act ultra vires, beyond the scope of one’s office; (2) a duty not to misuse an office’s funds or take unauthorized profits; and (3) diligent, careful, good faith, honest, and impartial execution of law or office.

These three duties of fidelity look a lot like fiduciary duties in modern private law. This “fiduciary” reading of the original meaning of the Faithful Execution Clauses might have important implications in modern constitutional law. Our history supports readings of Article II of the Constitution, for example, that limit Presidents to exercise their power in good faith, for the public interest, and not for reasons of self-dealing, self-protection, or other bad faith, personal purposes. So understood, Article II may thus place some limits on the pardon and removal authority. The history we present also supports readings of Article II that tend to subordinate presidential power to congressional direction, limiting presidential non-enforcement of statutes, and perhaps constraining agencies’ interpretations of statutes to pursue Congress’s objectives. Our conclusions undermine imperial and prerogative claims for the presidency, claims that are sometimes, in our estimation, improperly traced to dimensions of the clauses requiring the President’s faithful execution.

Posted by Ethan Leib on June 11, 2019 at 02:16 PM | Permalink | Comments (0)

Saturday, June 08, 2019

Spring Self-Reported Entry Level Hiring Report 2019: Years Since Graduation - School Rank

On Twitter, Matthew Bruckner: "This was the first time I've noticed that the "too much practice experience is bad"-trope does not seem grounded in the data."

Lawprawfblawg: "Is it distributed evenly across schools, or does the trope apply to a greater degree depending on ranking?"

Matthew Bruckner: [Power Rangers Shrug .gif]

The following looks at all tenure-track hiring that's been reported to the entry-level report since 2011, inclusive. Years since graduation will provide a rough proxy for practice experience (though given the rise of fellowships and PhDs, not to mention clerkships, many hires have significantly fewer years of practice experience than they do years since graduation--that is, some number of years since graduation will, for many people, have been spent clerking, doing fellowships, getting other degrees, etc.)

That said, there do appear to be some real differences in years since graduation depending on rank of school. For example, while hires with 20 or more years since graduation are relatively uncommon in general, Top 14 schools have no reported hires of someone with 20 or more years since graduation during these years. Additionally, Top 14 schools are much more likely to hire someone with zero to 4 years since graduation than are other ranks.

Years Since Grad Rank Bar.20190608

Years Since Grad Rank Chart.20190608

Years Since Grad Rank Chart Count.20190608

The usual caveats regarding school rank apply. Rankings are deeply problematic. In the categories above, T30 means "Top 30 but not Top 14 or Top 20," etc. I was very expansive in categories, so, for example, in my list, more schools than 14 are in the T14; more schools than 30 are T14 + T20 + T30; etc. My list of law schools with ranking categories (which I drew loosely from the US News rankings, keeping in mind that the US news rankings are very stable over time) is available here. I'm sure one can quibble around the edges that a particular school should be higher or lower ranked, but moving a school or two shouldn't change the overall general sense above. 

Edited 6/8/19 to clarify that the information relates to years since graduation, not practice experience.

Posted by Sarah Lawsky on June 8, 2019 at 11:58 PM in Entry Level Hiring Report | Permalink | Comments (2)

Friday, June 07, 2019

CFP: Picturing “Truth”: Visual Images and the Law

The Drexel University Kline School of Law is hosting two events to explore issues surrounding the use, reliability and interpretation of visual information in the legal context. These sessions are open to faculty of all ranks and from all disciplines, although they are primarily useful for those writing legal scholarship. These first of these workshops will bring together leading multidisciplinary experts with legal scholars who have an interest in the interpretation of visual media. The second will be a roundtable discussion for legal scholars who wish to share their discussion drafts.

Photographs, video and data representations serve vital functions in legal decision making. The law often treats images as static, self-evident objects and interpreted as if their meaning is singular and authoritative. In contrast, a significant body of multidisciplinary scholarship has engaged in extensive work that explores the use, reliability and interpretation of visual information. For example, some contend that representative images are comprised of constructed meanings based on ways of seeing, communal symbols, and collective communicative activities. Others are engaged in the problems inherent in using visuals to represent real-world events. In an era where the concepts of truth and post-truth are under examination, understanding how visual images convey information has become more valuable than ever.

The two sessions will proceed as follows:

First, the masterclass component will include several sessions presented by experts from various disciplines to introduce a rich set of frameworks for understanding and interpreting visual media. These sessions will provide legal scholars with a range of ways of thinking about visual images for their work. In addition, legal scholars will have the opportunity to workshop ideas for their own projects.

Applicants for this first session must submit a 1-2-page abstract by January 11, 2020, which describes their idea for a scholarly project that has some relation to visual media. Applicants are encouraged to submit at least one image along with their abstract. Notifications will be sent on February 9, 2020. If accepted, participants are asked to secure attendance with a $100 registration fee (waivers available). This masterclass will be held at the Drexel University Kline Institute of Trial Advocacy in Philadelphia, Pennsylvania on May 8, 2020.

Second, masterclass attendees will be invited to participate in a follow-on roundtable discussion of their draft papers that will be held during September 2020 at the same location. At a later time, Drexel Law will distribute a separate call for discussion drafts for this event.

All correspondence, including the submission of abstracts, should be directed to Professor Amy Landers at [email protected]. The conference webpage is at http://drexel.edu/law/picturingtruth.


Posted by Howard Wasserman on June 7, 2019 at 05:04 PM in Teaching Law | Permalink | Comments (0)

Interview with Professor Adam Chilton from the University of Chicago Law School on the Harry A. Bigelow Teaching Fellowships

It’s finally time for the first posted interview in my series interviewing VAP and fellowship directors.  Thanks to Professor Adam Chilton, the co-director of Harry A. Bigelow Teaching Fellowship program at the University of Chicago Law School, for participating in this series!  An edited transcript of our conversation is below, and I have invited Adam to respond to any questions in the comments. 

You can read more about the structure of these interviews and other related caveats here

Q.:   Hi Adam.  Thanks for taking the time to speak with me.  I’d love to start by asking about your role with the Bigelow Fellowship.

A.:  I am one of the co-directors of the program. We have two people that serve as the directors of the program every year. I've done it for the last three years with a different person each year rotating onto it for one year. One part of the role of the directors is having the primary responsibility over the hiring process. So we sort through candidates and decide who to interview (but then the actual decision on who to hire is a broader faculty decision that many people are involved in).  And then the other part of the role is working with the current fellows on their teaching, their scholarship, and navigating the market.

Q.:  I'm going to try to walk through the fellowship program chronologically, starting with the application process, and then we'll talk more about the program itself. Can you tell me about the application timeline? When do you typically start accepting applications, and when do you start doing interviews?

A.:  Sure. We open up the application process on roughly August 15th.

Q.:  Okay. And then, is it a rolling application?

A.:  Yes, then it's rolling. We accept applications until we have completed the hiring process and made sure we have the right number of people for the program. So we'll typically end up accepting applications into roughly February or March. But it is much better to apply early when we still have more spots to fill.

Q.:  And when do you typically start doing interviews?

A.:  We have two separate stages of the interview process. The first stage is a screening interview. That's done over the phone and lasts between a half hour and an hour. We start those probably in September, when we first sift through the applications. We do those on a rolling basis as applications come in. Frequently, both of the co-directors of the program will separately do a screening interview of the same person before we decide to offer them a call back.

Q.:  How many applications do you typically receive?

A.:  About 75.

Q.:  Okay. So first there's a screening interview over the phone. Do you then invite people to campus?

A.:  Yes. From there, we invite people to campus. And this is one thing that I think is distinctive about our program is that we take the on-campus interview extremely seriously. We spend a lot of time on it.

The way that our on-campus interview is structured is the same format and structure that we do for our entry level candidates, with one main exception. The one exception is that instead of the job talk for lunch, the candidates go to lunch with some of the current fellows to talk about the program and get advice from them.

But everything else about the structure of the visit is the same. Which means it starts the night before the interview with a dinner with three faculty members. So there's a long dinner, the same as an entry-level interview. Starting the next morning, there's a series of office interviews with groups of faculty members (some of the current fellows are also involved at this stage of the interviewing process). So, it'll be, say, two to four people in a room that do the interviews.

And there are multiple rounds of office interviews. Then there's the lunch with current fellows. In addition, there is a one-on-one meeting with our Dean of Students, a one-on-one interview with our Deputy Dean,  and an interview then with a focus group of students.

Q.:  At the end of that day, how do you make a decision on whether to hire someone? Who are actually the decision makers there, who votes, if there’s a vote?

A.:  Well, it's not exactly a vote. But, every single person that's met with the candidate—so every faculty member, every fellow, even the students—all submit comments about their reaction to the candidate. . These written reactions are a little more qualitative than a formal vote (e.g. what they thought about the person as a potential teacher, as a colleague, as a scholar, et cetera).

The final decision is made by the dean, the deputy dean, and the two co-directors of the fellowship program, taking all those views into account.

Q.:  How many fellowships do you typically have available each year?

A.:  Three.

Q.:  And is that set, or do you have flexibility in a given year?

A.:  Our most prominent fellowship program, and our biggest fellowship program, is the Bigelow Fellowship. The Bigelow program is structured around our legal writing program. We have six sections of legal writing each year, and so we have six Bigelows at a time. There has been some variance in the number of Bigelows hired. In a handful of cases where people were hired for two years but accepted a job in the first year, then we might hire four people the next year.  But the total number of Bigelows at any time  in the building is six. 

Now on top of that, we have three or four other programs where there's occasional a fellow. So, a law and economic fellow, behavioral law and economic fellow, a public law fellow, or a Dickerson fellow (which promotes diversity in legal academia). And those fellowships do not hire on a fixed schedule. Some years they we hire for those fellowships; other years we do not. So, when there's a particularly promising candidate that has applied for the Bigelow, we will also keep them in mind for possible other fellowships.

Q.:  And how would somebody find out about one of those other fellowships?

A.:  I'm not sure if that's it is how anyone actually gets their information, but they are posted on the University of Chicago careers website. But the best thing to do is reach out and email the faculty member associated with a particular program and apply.

Q.:  So, let's talk about the criteria that you would use, or the school would use, in selecting fellows. And we can split it up into research, teaching, and other, if that works. If you're thinking about the average successful candidate, do they typically have a full paper coming in? A draft? A published article? What's the norm?

A.:  Definitely the norm is to have a paper. Not everyone has a paper, but we do require a writing sample of some kind. There have been successful candidates that submit a student note, but successful fellowship candidates now almost always have a complete draft, if not multiple publications.

Q.:  And is that typically a draft they wrote in practice, or would this be in a PhD program? Where are they finding the time to write this article?

A.:  I'd have to look at the exact numbers, but maybe half of our fellows have PhDs when they come into the fellowship program. In some cases, they're coming straight from the PhD program (in fact, they might even still be an ABD in the PhD program and working on it that way). Others are coming with a PhD, but coming from a clerkship or from practice.  And in those cases, even if they have not done research for a few years, they have written material from when they were PhD students. 

We've had fellows apply from being in a firm of from a clerkship. In some clerkships, the candidate has had more time to work on a paper.  We've had others that have taken a month off of leave from their job, and some that are just a super person that can work full time at a law firm and somehow produce a paper.

Q.:  And do they typically have, in addition to that paper, a pretty well developed research agenda?

A.:  Yes. We're in a pretty lucky position where we only hire three people a year, and we are able to get the very top fellows in the market.  And so, people typically have a pretty well-designed research profile and they know the methods that they will use, their perspective on the subjects they are studying, and have multiple projects ongoing.

Q.:  Let’s turn to the teaching side? Do you expect teaching experience, and if not, how are you gauging teaching abilities?

A.:  We take the teaching piece particularly seriously. We advertise to all the fellows that there is a trade-off coming to Chicago: you'll do more teaching and more work, but you’ll get more back in return in terms of developing your scholarship and your academic career. But that's the deal we offer.  We are really trying to identify people who will be good teachers.

The candidates have a range of different levels of prior teaching experience. Of candidates with PhDs, most of them have teaching experience. Many of them have experience in law-related classes. So for them, we're able to look at teaching evaluations. Additionally, we’ve also had a number of people that have done Teach for America, or other forms of teaching prior to law school. Finally, there's other cases where people have been to law school, clerked, and practiced, but they do not necessarily have direct teaching experience. But they have extremely good practice experience that could be useful in the classroom. 

But regardless of candidates’ prior experience, we're still trying to gauge what someone would be like in a classroom. That's partly why we do so many interviews, so we can see how people think on their feet and how well they can explain complex ideas. It's also why we have every candidate do a one-on-one interview with our dean of students and an interview with a room full of students. And they're only thinking about teaching  (they can ask the candidates about whatever they want, but their role in the process is to be specifically focused on who we would a good fit teaching our 1Ls legal writing).

Q.:  What types of things might give people a little bit of an edge in the process? So, for example, is whether someone has a PhD, is that something that you weigh heavily in the process?

A.:  I don't think we weight it in any particular direction. I think that someone who has spent time in a PhD program, probably has a well thought out views on research. And as a result, they can be successful in our interview process where we have many faculty members drill people about their research. But if someone has a PhD but their research isn't very far along or sophisticated, we might be less forgiving than we would be of a candidate that is coming straight from practice. Because if someone's coming straight from a PhD program, we would expect that it is pretty well thought through.

Q.:  How about preferences for candidates in particular curricular areas? Are you paying attention to the subject areas that seem to get a lot of play on the market?

A.:  Not really.  We have had conversations about whether or not a second candidate might be too similar to a person that we've already hired. If we've already got candidate A doing con law with a particular background, we’ll talk about if it’s a mistake to hire candidate B doing con law with a similar background. So we have that conversation.

But although we’ve had those conversations, in the end we end up hiring the people we think are the best.  For example, last year we had three law and economics candidates on the market. Two that were Bigelows, one that was the behavioral law and economics fellow. So we had the conversation to the effect of “is this too many people with an economics background?” But they were all fantastic, so we still hired them.

Q.:  How about making an effort to hire candidates from diverse backgrounds?

A.:  Yes, this is something that we care about and prioritize. To put it immodestly, we’ve been able to hire the very best fellowship candidates on the market each year. And we’ve been lucky that, at least for the last few years, that many of the best candidates have added to the diversity of our law school. In the three years I’ve been involved in running the program, I’ve either worked with or hired thirteen Bigelow Fellows. Of those, eight have been women and five have been men. Several of them are first generation college students. Several of them are people of color. They are from all around the United States and even outside of it. So, we had a pretty diverse group. But we are always looking for ways to identify and attract exceptional candidates from diverse backgrounds.

Q.:  What else factors into your decision making?

A.:  Yes. One thing that might be slightly unique about Chicago is that we have roughly 36 tenured or tenure-track faculty members. For comparison, our peer fellowship programs are at schools with faculties that are two to three times larger. The result is that we really see our fellowship program as a way to constantly bringing new ideas and new people into the building.

Moreover, our fellows’ offices are immediately next door to faculty offices. If you're a fellow, you'll have tenure-track faculty directly on both sides of your office. And the fellows are fully integrated into the law school.  They come to every faculty workshop and every job talk. 

As a result, we are really looking for people that our tenure-track faculty is excited to interact with daily for the next two years. So, for example, we'll have a candidates who does corporate law come interview, and immediately the corporate law faculty may say “we have to have this person in the building. We're so excited about working with them, learning from them, and co-authoring with them.”

So the kind of candidates that generate excitement form our faculty is something that we really prioritize. Who would be a fun person to have around, that would be interesting and intellectually engaging?  

Q.:  So, when I posted this series of questions on prawfblawg, I got a number of people saying essentially, ask the fellowship directors about candidates from non-traditional backgrounds (i.e., people who didn't go to Chicago or Harvard or Yale, maybe didn't have an elite clerkship).  Is there a way for them to stand out in this application process? How would you advise one of those candidates?

A.:  It’s difficult for anyone to stand out when we're trying to hire two or three people from a pool of 75 exceptionally qualified people. But last year we had a fellow that was amazing that did not attend a top-14 law school, so it is possible. 

But the way that it is possible, though, is to have produced extremely impressive research. The only reason that where someone went to law school matters is as a proxy for how someone will be as a scholar and a teacher. But when we have more reliable proxies, we don't have to rely on that at all.

So, when we have candidates apply with four or five great articles that people feel today are fantastic, we don't have to guess whether or not the person will be a good scholar. We know that they are.  But that's the thing they do have to focus on.  Make that proxy of where you went to law school something you don't have to rely on at all.

Q.:  How much is practice experience valued in the selection decisions?

A:  It’s definitely valued. We have hired a few people without practice experience, but it’s a big hurdle to overcome. This is not like having a PhD, where I’m not sure what weight it plays in the process. Practice experience is something that always weighs strongly in someone’s favor.

Q.  Let's transition away from the application process into what I'm going to call the terms and conditions of employment. I have come to learn that it is really hard for fellows to find out the basics about compensation and other terms of employment for fellowships and VAPS.  How much are Bigelow fellows paid per year?

A.:  I am under the impression that we pay as much, if not more, than our peer fellowship programs. But I don’t know the specifics, and I am not sure I could disclose it if I did.

Q.:  Do fellows receive health benefits, or access to university housing or subsidized housing?

A.:  Yes to health benefits. No to subsidized housing.

Q.:  Do they receive travel funding, or other professional development funding?

A.:  Yes.  

Q.:  How about funding to hire research assistants?

A.:  Fellows receive a guaranteed amount of research funds to use at their discretion, which can be used for travel, hiring RAs, or whatever normal things people use research funds for. And then in addition to that guaranteed amount, there are various opportunities for additional internal funding that fellows may be able to take advantage of depending on the project.

Q.:  Do they receive reimbursement for market-related expenses when they go on the hiring market?

A.:  The research funding is increased in the second year with the idea that it offsets, at least some, of the costs of the market. 

Q.:  Are fellows expected to live in the same city as the law school? I know obviously, they're teaching a class. But could somebody live in New York, and then just come in and teach their class, if that's what worked better for them?

A.:  I do not think someone could be a successful fellow if they did not live in the same city as the law school. It's our norm that fellows, as well as tenure-track faculty, are in the building on work days.

Of course, people have professional and personal travel that takes them away from Chicago. And there are days people work from home. So although there is not a strict face time requirement, I don't think that a fellow could be successful if they came in two days a week, the ways I've heard of friends and colleagues doing for other fellowship programs.

Now, we have had fellows that have been in long distance relationships, and those people may take longer weekends every two weeks. Or be away from Chicago for several weeks over winter break, over spring break, or during the summer. But, the expectation is that people are in Chicago coming to work most days.

Q.:  I know the typical duration of the fellowship is two years. If for example, somebody didn't get a job in that second year, is it possible to renew the fellowship for a third year?

A.:  That has not happened yet, so we never had to cross this hurdle.  We've had 100% of our fellows land a tenure-track offer.  So we haven't ever had to set a policy on what would happen if they did not. We certainly do not have a guarantee of renewal. If it ever did happen, I think there would be an assessment about whether or not that would make sense for the candidate and whether it would make sense for the school to extend for another year.

Q.:  Let’s turn now to how someone makes the most of their fellowship years. How often do the fellows get together, and in what capacity? So, for example, do they have a regular workshop series, or another type of gathering?

A.:  We have a pretty good community of fellows. We have a minimum of six, but, more realistically, nine or ten fellows in any given year (the six Bigelows, plus as I mentioned, multiple people in some stage of the other programs I mentioned). And I think that those fellows talk constantly. Both about their research, and their teaching. 

The fellows also typically have a regular meeting that is either weekly or every two weeks, depending on the time of year, where they talk about each other’s research ideas. These meetings are not to formally research, but an informal discussion

Q.:  And that's just the fellows?

A.:  Yes. This is just the fellows. And then there's the what's called a research colloquium, which is a workshop to present at more formally. It runs during the academic year, and the people that attend are the fellows, JSD students (graduate students that are primarily foreign), and a handful of other people that are visiting scholars or particularly ambitious law students.  And the fellows have the option to present at this forum, and when they do, to invite a handful of faculty members that they're working with or that they're close with, so that they can get some kind of faculty feedback, but not in the high-pressure environment of formal feedback.

Beyond that, before the job market, every one of the fellows gives a workshop in front of our full faculty at our Works-in-Progress (“WIP”) workshop.  But before presenting to the full faculty, the fellows do a dress rehearsal in front of the people that run the fellowship program, all of the fellows, and say four or five of the other faculty. And before the full dress rehearsal, the fellows typically practice by doing a fellows-only workshop. And in some cases, fellows will do multiple rounds of practice workshops if they think they can benefit from additional feedback.

Q.:  That's a great opportunity for them.  Do they get to participate in faculty workshops where they're not the speaker? In other words, do they go to Chicago's regular faculty workshops?

A.:  Yes; they're expected to be at every WIP (once again, with the caveat that we understand people have other professional and personal commitments). But our weekly WIP is the center of our academic life. And the fellows are encouraged to ask question at it. If anything, the view from our faculty is that they should ask more questions. I have never once heard anyone take the view that fellows asked too many questions. So, the expectation is that they attend and that they will participate. 

The WIP is for internal speakers, and it runs every Thursday all year long (with the exception of three or four Thursdays that are over Thanksgiving, winter break, and maybe something like the Fourth of July). So it meets say 48 weeks a year.

During the academic year, we also have workshops for outside speakers. For instance, we have a law and economics workshop and a public law workshop that meets on alternating weeks that are highly attended by faculty. In addition, we have a number of other workshops for external speakers during the academic year: a con law workshop, a sexuality and gender workshop, a law and philosophy workshop, etc. The fellows are encourage to attend any of the workshops for external speakers that may be relevant to their research. 

At these workshops, the fellows are encouraged to be even more involved than the WIP. And also there are dinners after the workshops for external speakers. Our fellows are encouraged to sign up to go to dinner. Especially, when it's someone in their direct field, or in some way would be a valuable person to meet.

Q.:  What assistance are they given in finding mentor?  For example, are they matched with a formal mentor?

A.:  There are not formal mentors. There are the two co-directors of the fellowship program.  The assumption there is that those people will be the Bigelows’ first contact point. Certainly when you start, but also when you have your first research draft, your first need for comment, anything like that. So, they can get lower stakes feedback without having to go to some extremely prominent person in their field and show them a very rough draft.

Moreover, we typically would not hire someone if the relevant people in their field weren't excited about them. So, that sort of cures that problem of a Bigelow not having mentors because we make sure there is buy-in from the natural mentors for a candidate before the hiring ever happens.

  And when people do first start, the directors of fellowship program try to give advice about who the fellow should meet and facilitate that process. But that said, as I mentioned before, we're a faculty of less than 40 people—everyone is in the same building and everyone comes to work almost every day. And as a result, within a few weeks, everyone knows everyone anyway. So mentors are found pretty organically.

Q.:  Are they given assistance making connections outside of your law school, meeting people in their area at other schools?

A.:  One opportunity that I already mentioned is that when we have outside speakers who are connected to the fellow in some way -- same method, same subject area, similar background -- we try to make sure that the fellow does to the dinner, and we also try to have them set up a meeting with the person while they're on campus for coffee. Things like that.

We also host a lot of conferences over the course of the year.  And when the conferences are relevant, the fellows are frequently asked to be a speaker and participate, so that's another way. So, for instance, shortly after I started as a Bigelow fellow, Eric Posner and Al Sykes hosted a conference on international law, and they invited me to be a speaker, attend the dinners, and fully participate. At that event were a number of people in my area—Anu Bradford, Rachel Brewster, Katerina Linos, Mila Versteeg—that I got to spend time with and I’ve now written papers with all of them.

Additionally, we have a pretty large number of faculty members who go to conferences like the Empirical Legal Studies Conference, the American Law and Economic Conference, Law & Society, or events like this. And we try to make sure that the faculty that are going know about the fellows that are going, and that they invite the fellows to meet or come out to drinks with the faculty member’s friends from other schools. So that's one reason we try to encourage the first-year fellows and make sure they attend conferences and actively participate. 

Then finally, if a fellow is looking for an introduction to someone from another school, there is always a faculty member willing to facilitate it.

Q.:  Do fellows receive help in developing their research agenda?

A.:  Yes. Our standard advice -- although it may change depending on the specific fellows background – is that they should have a pretty good idea of what they think they're going to write first by the time they arrive during the summer to start as a Bigelow.  Since they are asked about that during the interview process, typically all of the incoming fellows do have that first project planned out.

The goal is to have the idea for the project completely crystallized by the time the academic year starts, which brings us to the end of September. And so, during that process, they will get a lot of feedback about one specific idea. Then the goal is to get it done by the end of the quarter, then get feedback on a full draft over the winter break, and be ready to submit it by roughly February for the law review submission cycle. 

We then tell fellows to switch to a second paper and have the idea crystalized by the start of the summer, and have a second paper written before the market starts.

Q.:  There is always this lore that fellowship programs help fellows, informally or formally, place their work. Is that true? Do you find that at all?

A.:  You mean like reach out to law reviews?  Well, I'll say this, I have never done that. And I’ve never heard of it happening. I don't even know how you would do that.

Q.:  I don't either. But I keep hearing it, so I figured I'd ask.

A.:  I do think that some of the law reviews like seeing themselves having a kind of kingmaker role where they pick out prominent fellows from the pile and publish their job talks. So top law reviews may be looking for the papers from the top fellows. I’ve heard of former editors claim that they tried to find a paper from one fellow for their volume, for instance.

But the idea that a faculty member would be emailing students a copy of a paper of a fellow is, I don't think, really credible.

Q.:  Yeah. I've never seen it either, but I saw enough comments about it that I thought well, I'll ask. So, let's switch over to the teaching side of the Bigelows’ job. How many students do they typically have in their legal writing section?

A.:  30 to 33.

Q.:  Is that their only teaching responsibility? Or do they have the opportunity to teach other courses as well?

A.:  In the spring of their second year, they teach a seminar on a topic of their choosing.

Q.:  What are their responsibilities in connection with the legal writing course?

A.:  They teach a course on legal writing -- going through IRAC, structure of memos, bluebook, all that kind of stuff. Also, we do new legal writing assignments each year. We never recycle the topics for memos or briefs that the students have to write about. And the Bigelows are in charge of developing three assignments for the year—a closed memo, an open memo and a brief. And the group of six Bigelows divide up the work to develop those three assignments (typically in groups of two per assignment). Additionally, they meet with the students and give feedback on their work, and they also have to grade the students’ memos and briefs. Finally, the expectation is that they are a more approachable mentor than the doctrinal faculty, so they should be available to give advice on things like studying for exams, applying for summer jobs, and navigating the rest of law school.

Q.:  What percentage of their time do you think they spend on teaching versus their research?

A.:  It ebbs and flows a lot. There are three months a year when the three main assignments are due. And those months the fellows are giving feedback, grading assignments, things like that. So there are three periods a year where the vast majority of the fellows’ time is teaching. There’s a lot of other periods throughout the year where there is little or no teaching. This happens over academic breaks and at the beginning and the end of each of our quarters (our legal writing always ends before the other courses so students can transition into studying for their exams).

Q.:  Do the fellows get training, mentoring, or other feedback related to their teaching?

A.:  Yes. Although probably this is an area where we could do better. The fellows receive student evaluations, and we review all of those evaluations and talk to the fellows about anything that comes out of those evaluations. We also meet with them to talk about the content, what they should be covering, advice on how to cover it, et cetera. But we could probably do better still here. 

Q.:  Do fellows have any other responsibilities? Any administrative responsibilities, or anything else?

A.:  No; nothing that they do not choose for themselves.

Q.:  Following up, what could they choose for themselves? Are people getting involved in student organizations, or other things?

A.:  Yes, things like that. Some fellows will give lunch talks for student groups, or play a larger role being mentors for student group. Some fellows have organized conferences. Others have been a part of outside organizations. But these are all things that the fellows are free to choose to get involved with.

Q.:  Let’s step back. If you had a candidate who was choosing between the Bigelow program and one of the other top fellowship programs out there, and you were trying to convince them to come to Chicago, what's the argument you would make? Why do you think this is the best, or one of the best, programs in the country?

A.:  I do strongly think that this is the best fellowship program in the country. But, in full disclosure, I was a Bigelow and now help run the program, so I’m likely biased. But I have reasons.

I think that the University of Chicago Law is the most intense academic environment in any American law school. We have an extremely dedicated faculty that is always at work and engaged. There is essentially no one on our faculty that is not an active and engaged scholar. So, people are engaged, inquisitive, hard at work, and the fellowship is the opportunity to fully be a part of that community for two years. Now, not everyone might want to be part of such a place long term. But for the two years before you go on the market, I can't think of a better investment for your time.  I'm sure you'll get more feedback, more mentorship, and more guidance at Chicago than any other place.

Q.:  And how would a fellow make the most of the Bigelow opportunity? What have you seen people do to really maximize the opportunity that they have over those two years?

A.:  The way to maximize the opportunity is to be extremely present and physically show up to as many things as possible. And beyond just being physically present, be outgoing. Force yourself to meet with and talk to faculty members.  I think our experience is that people on the faculty are happy to read drafts when you send them and keep giving feedback.  We'll force feed people some amount of feedback, but people who are really successful are folks that are going above and beyond to get feedback and develop their scholarship.

Q.:  The job market itself, obviously it's an intense period that all your fellows are going to go through. Do they receive specific mentoring related to the job market?

A.:  Yes. The two co-directors and Brian Leiter are pretty involved in giving feedback, and we also loop in the fellows’ other mentors. So, anyone that is a recommender for the person will give feedback on all of their specific materials. So, the CV, the research agenda, the FAR form.  So, they get multiple people giving them feedback on that. As I mentioned before, we also do a series of moot job talks. Finally, we additionally do moot interviews for everyone before AALS.

Q.:  Earlier, you mentioned that Chicago has a 100% placement rate. Is that over the entire course of the program?

A.:  The modern version of the Bigelow program started in roughly 1999. Since then, 100% of fellows have had a tenure track offer.. There were two people that had tenure track offers, but decided not to take them and to go another direction with their career. And one fellow left the program to accept a Supreme Court clerkship, but went on the market after and landed a tenure track job. But other than that, there's been 100% placement.

Q.:  And I think there's actually a list on the website. Do you mind if I link to it?

A.:  Yes, please do.  [Here’s the link!]

Q.:  A few more broader questions about VAPs and fellowships more generally.  What do you think are the benefits of the rise of fellowships and VAPs as an entry point for so many law faculty positions?  What do you think are the costs?

A.:  I think that, with very few exceptions, anyone that wants to enter into legal academia should do a fellowship.

There are several unique features of the legal academy that make fellowships especially important. For one, unlike other disciplines, law students do not have a set dissertation supervisor whose professional reputation in part dependent on getting you a job. For another, legal academy has a notoriously short tenure clock. The result is that it is extremely important to hit the ground running the day your clock starts ticking. And because most of our research is not peer reviewed and placements in law reviews can be path dependent, the initial trajectory of a legal academics career is extremely important. So it is important to get the best first job you can because you can’t rely on blind review of your articles to let you publish your way up the ladder the way you may be able to in other fields. Finally, our field has very few tenure denials. The result is that if someone is hired based on promise they never realize, they may occupy that job for the rest of their career.

Fellowships are the solution that legal academia has organically found for these problems with our profession. They allow aspiring scholars to acquire strong mentors, develop a research agenda that can carry them through tenure, ensure that they get the best possible initial job, and provide hiring committees with a huge amount of additional information (from published scholarship to teaching evaluations) which ensures that fewer hiring mistakes are made. 

Of course, there are costs. For instance, fellows may have to make an extra move to a new city and may make less money than they would in private practice. I’m sympathetic to the former point, but I’m less sympathetic to the later point. Legal fellowships pay comparably to what law clerks or public interest lawyers make, and more than twice the stipend that people earned as PhD students. Finally, doing a fellowship raises the costs of striking out on the job market, and I worry that this may deter strong candidates from ever even trying to be a law professor.

But, on balance, I think the rise of fellowships is a welcome development. If we wanted to reduce the reliance on them, schools would have to start imposing meaningful tenure standards and be willing to peer review research instead of out sourcing the work to students. I’m skeptical that either thing is likely to change soon, so fellowships are a second-best solution to help develop and identify talent that is here to stay.  

Q.:  Do you think that fellowship and VAP programs have any responsibility for helping to open up law faculty positions to people from diverse or non-traditional backgrounds?  How does your program help to do that, if at all?

A.:  I think everyone in the legal academy and the legal profession should be trying to find ways to promote inclusion and diversity. The diversity of our cohorts of fellows is something that we are all very proud of. We’ve tried to accomplish this in a few ways.   

First, we try to actually read as much of scholarship as possible. When you let the work speak for itself, instead of relying on proxies, it’s possible to find people that are creative and distinct thinkers.

Second, we try to do outreach and target candidates from diverse backgrounds and encourage them to apply. This includes trying to find people to directly email and ask to apply, but also trying to find forums to promote our programs.

Third, we have a fellowship, the Dickerson Fellowship, that is specifically for promoting diversity in legal academy. The fellows that have come through this program have been extremely successful on the market and in their academic careers. 

Fourth, one of faculty members (who himself was a former Bigelow and was a co-director of the program when I was hired), Daniel Abebe, is very active in the Culp Colloquium program run by Duke Law School. The Colloquium brings together current leading academics to help give feedback and mentorship to diverse candidates before they go on the market. We have been able to identify potential fellows from their participation in the program, had people in the Colloquiums network refer candidates to us, and several of our fellows have attended the Colloquium after starting at Chicago.

Of course, I’m sure we could do even better, and we are constantly looking for ways to improve. But those are a few of the steps we’ve taken in recent years.

Q.:  What do you think about the criticism that VAPs and fellows may get too much help on their scholarship from other faculty and that therefore it is hard for hiring committees to know how much of the work and ideas comes from the VAPs or fellows themselves?

A.:  That criticism misunderstands what fellowship programs are doing. Or, at least, what we do at Chicago. Those criticisms imagine fellowship programs as giving entry level candidates an extreme amount of help writing a specific paper, but really we are training people how to be better scholars. For instance, I’ve never once given line edits on a fellows paper, but I’ve had plenty of conversations over lunch about what are the kinds of questions worth writing about. It’s being part of those conversations every day that improves the quality of fellows scholarship. We are not giving people a fish, we are teaching them to fish.

Q.:  Any thoughts you’d like to pass on to hiring committees about law faculty hiring?

A.:  Nope, I can’t think of any.  

Q.:  Thanks for participating in this interview series!


Posted by Jessica Erickson on June 7, 2019 at 08:41 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (25)

Thanks and Caveats for My Interview Series with VAP and Fellowship Directors

I will soon post the first interview of my interview series with VAP and fellowship directors.  My goal is to post one a week over the summer.  I have now conducted several interviews, however, and I wanted to take a few moments before the series officially starts to reflect on it more broadly.

First, a huge thank you to the faculty who have spoken with me over the past few weeks about their schools’ VAP and fellowship programs.  I have to imagine that it is a bit intimidating to sit for a lengthy interview, knowing that the transcript will be picked apart by Internet commenters.  And yet almost every school that I have contacted has agreed to participate, and no one has objected (at least much!) to my pages of questions.

Second, the interviews were long.  Like, really long.  Most lasted over an hour, and the transcripts are typically 15 or more typed pages.  This format has costs and benefits.  The costs are obvious­—it’s a lot to read!  And the transcripts reflect normal conversations­—sometimes the speaker goes off topic, sometimes they don’t answer the exact question that I asked, and sometimes they aren’t as clear as they might be if they were writing out their answers.  In other words, they talk like any of us would likely talk in these circumstances.  Indeed, this whole process has made me acutely aware of my own verbal tics.  On the flip side, it’s easier to get helpful details through a conversation.  People share more when they are talking more informally, and this format also allowed me to ask follow-up questions where appropriate.  So forgive the length of these transcripts.  I do recognize that not everyone will want to read the whole interviews, so I am working on putting together a chart that will include more stripped down information about these and other programs.

Third, full disclosure about the transcripts themselves -- these are edited transcripts, not exact transcripts.  My goal is to provide information to prospective fellows that is as helpful as possible, so if the interviewees wanted to add or edit information after our conversation, that was fine with me.  And if the details of particular programs change down the road, I have told them that I have no problem if they want to edit the transcript. 

Fourth, I want to be transparent about my goal with respect to this series.  I know there are people who think our whole system of hiring is crazy and want to burn it down (so to speak), and these people may well be frustrated that I am not using this series to more aggressively challenge the status quo.  I understand those critiques, as I have mixed feelings about the system myself.  But the fact is that this is the current on-ramp for nearly all law faculty today, and yet we have almost no systematic information about how these programs work and how people can be successful in them.  Maybe those of us already in the profession should build additional on-ramps, but in the meantime, I think we have an obligation to make the current system more transparent. 

Finally, if there is a particular program you want to learn about, let me know, either in the comments or by email!  I can’t interview faculty from every program, so I am trying to do a mix of different types of programs.  I want big name programs, as well as ones you may not have heard about.  I want programs where fellows teach in legal writing programs, programs where they teach doctrinal classes, and programs where the responsibilities relate more to running a center. So far, I have reached out to faculty connected with Harvard’s Climenko program and Reginald F. Lewis Fellowship for Law Teaching, Chicago’s Bigelow program, Stanford’s Thomas C. Grey program, Columbia’s Associates-in-Law program, NYU’s Lawyering Program, Yale’s Center for Private Law, Wisconsin’s Hastie fellowship, Tulane’s fellowship program, and a few others.  I likely have room for three or four more, and I am willing to take suggestions!

With those caveats out of the way, stay tuned for the first interview transcript soon!

Posted by Jessica Erickson on June 7, 2019 at 08:32 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (2)

Thursday, June 06, 2019

Spring Self-Reported Entry Level Hiring Report 2019: Doctrinal, Fellowship, Doctorate

Jessica Erickson proposes looking at doctrinal hires with either a doctorate or a fellowship (or both). As she explains in the comments to the main post:

I was interested to know the percentage of doctrinal (aka podium*) hires at U.S. law schools this past year who have a Ph.D. or SJD and/or have done a fellowship/VAP. This is slightly different than the Venn diagram...because (i) it does not include other types of advanced degrees, such as an LLM or Master’s degree, and (ii) it only includes doctrinal tenure-track hires, not clinical or LRW hires. I am also not including clerkships in this count because I don’t think that they serve the same function as a Ph.D./SJD or fellowship/VAP program....

*There isn’t a good term for this category of faculty, especially as I fully recognize that all faculty teach legal doctrine and few faculty always teach behind a podium. My point is simply that VAPs and fellowships are not as much of a required hurdle for faculty who want to teach in a clinic or legal writing program, so I wanted to focus on the particular category of faculty for whom this is the standard path. 

As Jessica suggests, this category (doctrinal + or(doctorate, fellowship)) includes almost every hire these days, and the percentage with these characteristics, while always high, has increased over time (click on chart for larger version):

Doctrinal Fellowship Doctorate.20190606

Doctrinal Fellowship Doctorate Chart.20190606

Posted by Sarah Lawsky on June 6, 2019 at 04:44 PM in Entry Level Hiring Report | Permalink | Comments (0)

Patentable Subject Matter

Congress is considering legislation to amend 35 U.S.C. Section 101. This section defines eligible subject matter for patents. In recent years, the Supreme Court has read this provision more narrowly (or more correctly, depending on your point of view) to exclude many types of software and medical diagnostics as unpatentable. Some of the firms in these industries, as well as some members of the Federal Circuit, are unhappy with these decisions. Enter Congress, which held a hearing on the issue last week.

I am not particularly keen to see Congress change Section 101. A limited exception that would make medical diagnostic tests patentable (instead of an unpatentable application of nature) is fine with me. But going further would probably be a big mistake and give patent trolls new life.

To my mind, the problem is that the Court should have held business methods unpatentable in Bilski. In his new memoir, Justice Stevens explains that there was a majority for that position initially, but that after he circulated his draft opinion Justice Scalia changed his mind. I think his dissent in Bilski provides a clearer way of delineating patentable subject matter than the Court's subsequent cases do. Thus, I would like to see Congress think about incorporating his analysis. (The proposed legislation sort of does that by using the word "technology" to define utility, which can be read to exclude business methods. But that could be made clearer.)

Posted by Gerard Magliocca on June 6, 2019 at 07:50 AM | Permalink | Comments (0)

Wednesday, June 05, 2019

David Garrow and the Duty of Scholarship

There is outrage about a recent article by David Garrow on Martin Luther King Jr. Garrow, who won a Pulitzer Prize in the 1980s for a biography of King, writes in the article about recently declassified FBI reports on King that made lurid accusations. (Most notably, that King stood by and watched a rape.) Some people are angry that Garrow chose to publish these charges without establishing their truth.

I thought I might share some thoughts about this. One way to understand my role as a researcher is that I am just supposed to present new information. If I find a letter in an archive contains novel claims about a historical figure, then I should tell everyone. It's not for me to judge if the claims are true. I'm simply putting them out there so that others can verify or debunk the claims.

Another way of understanding my role is that I should only publish a novel claim if I am convinced that the claim is true (by whatever standard of proof seems appropriate). This is how I typically approach my work. If I cannot verify something to my satisfaction, then I don't include the point. Now I can imagine writing a blog post that says "I found something and now I'm trying to determine if it's true. Can anyone help me?" But that strikes me as more comparable to a conversation that I might have with a colleague rather than an assertion.

I have not read the Garrow article yet, so I cannot say what I think about how he handled the new material.  When I do, I may follow up with another post. 

Posted by Gerard Magliocca on June 5, 2019 at 09:44 PM | Permalink | Comments (4)

"Professional Responsibility 2020 Works in Progress Workshop"

AALS Section on Professional Responsibility
2020 AALS Annual Meeting
Call for Papers Announcement

The AALS Section on Professional Responsibility invites papers for its program
“Professional Responsibility 2020 Works In Progress Workshop”

at the AALS Annual Meeting in Washington, DC.


This workshop will be an opportunity for junior scholars to receive substantive critique and feedback on a work in progress. Each junior scholar will be paired with a more senior scholar in the field who will lead a discussion of the piece and provide feedback. Successful papers should engage with scholarly literature and make a meaningful, original contribution to the field or professional responsibility or legal ethics.


Full-time faculty members of AALS member law schools are eligible to submit papers. Preference will be given to junior scholars focusing their work in the area of professional responsibility and legal ethics. Pursuant to AALS rules, faculty at fee-paid law schools, foreign faculty, adjunct and visiting faculty (without a full-time position at an AALS member law school), graduate students, fellows, and non-law school faculty are not eligible to submit. Please note that all faculty members presenting at the program are responsible for paying their own annual meeting registration fee and travel expenses.


Two papers will be selected by the Section’s Executive Committee for presentation at the AALS annual meeting.
There is no formal requirement as to the form or length of proposals. However, the presenter is expected to have a draft for commentators one month prior to the beginning of the AALS conference.
The paper MUST be a work in progress and cannot be published at the time of presentation. It may, however have been accepted for publication and be forthcoming.


Please email submissions to Veronica Root Martinez, Associate Professor, Notre Dame Law School, [email protected] on or before September 10, 2019. The title of the email submission should read: “Submission – 2020 AALS Section on Professional Responsibility.”

Posted by Rick Garnett on June 5, 2019 at 02:44 PM in Rick Garnett | Permalink | Comments (0)

Spring Self-Reported Entry Level Hiring Report 2019: Venn Over Time

A commenter on the main entry level hiring report drew attention to the fact that no reported entry level hires this year have no fellowship, clerkship, or advanced degree. It struck me that it might be interesting to look over time at two categories of the Venn diagram related to fellowships, degrees, and clerkships: hires that have all three credentials, and hires that have none of the credentials.

Fellowships Clerkship Advanced Degree.20190605
Fellowships Clerkship Advanced Degree.20190605

As the commenter suggested, there does appear to have been a shift in each of these two groups over time.


Posted by Sarah Lawsky on June 5, 2019 at 10:23 AM in Entry Level Hiring Report | Permalink | Comments (0)

Tuesday, June 04, 2019

Spring Self-Reported Entry Level Hiring Report 2019

Following is a data summary of the Spring Self-Reported Entry Level Hiring Report for 2019. To remain consistent with past years, while the spreadsheet contains all hiring information received, the data analysis includes only tenure-track hires at U.S. law schools. (The data analysis also includes several hires who requested not to be included in the spreadsheet at the date of this posting, although the people will eventually be included in the spreadsheet.) 

Here is the full spreadsheet:

The data includes 81 tenure-track hires at U.S. law schools, at 59 different law schools.

Here are answers to some frequently asked questions:

Q: How does 81 reported hires compare to past years?

A: Quite similar. It appears that we hit the “new normal” in 2014 and have seen fluctuations from around that level since then. The average number of hires per year since 2014 is 74. (I omit 2010 in this and all subsequent cross-year comparisons because insufficient data was collected that year.)

Reported Hires.20190613

The ratio of hires to first-round FAR forms is up slightly (click chart for bigger version):

Hires per FAR.20190613

Hires per FAR Chart.20190613

Q: You say the hires were at 59 different schools. How does that compare to previous years?

A: The number of schools hiring was comparable to previous years since 2014.

Schools Hiring.20190613

Hires per school per year may also be of interest:

Hires per School.20190613

Q: How many reported hires got their JD from School X?

JD From.20190613

Yale 12; Harvard 11; NYU 7; Stanford 7; Michigan 6; Chicago 5; Berkeley 3; Vanderbilt 3; Virginia 3.

Schools in the “fewer than three hires” category with two JD/LLBs who reported hires: Boston University, Columbia, Georgetown, Northwestern.

Schools in the “fewer than three hires” category with one JD/LLB who reported hires: Arizona, Arkansas-Fayetteville, Cornell, DePaul, Duke, East China University, Haifa, Kansas, Penn, Pontifical Catholic, Rutgers, Seoul Nat'l U, Tel Aviv, UCLA, Washington & Lee, Washington (St. Louis).

This information comes with two related caveats.

First, the spreadsheet reports the number of hires who received a JD from a particular school who accepted a tenure-track job, but not the number of JDs on the market who received a tenure-track job offer.

Second, the spreadsheet reports the count of JDs from a particular school, but not the rate at which JDs received (or accepted) offers. A smaller school with a high placement rate thus might not appear on the chart, whereas a larger program with a low placement rate might appear. This caveat means that smaller schools may be undervalued if one relies only on this data, while larger schools might be overvalued. 

Q: How many reported hires had a fellowship, degree, or clerkship?

63 (about 78%) had a fellowship; 51 (about 63%) had a clerkship; 53 (about 65%) had a higher degree. Every reported hire had at least one of these credentials.

Venn diagram:


Q: Still a lot of fellowships.

A: Yes, the rate of fellowships remains high.


Q: From what law schools  did people get these fellowships?

I count here any law school at which a person reports having a fellowship. So one person could account for two schools’ being listed here. For example, if a single individual had a fellowship at Columbia followed by a fellowship at NYU, that would be reflected below as +1 to Columbia and +1 to NYU.

Fellowship School.20190613

NYU 14; Harvard 7; Columbia 7; Yale 6; Chicago 5; Stanford 5; Berkeley 4; Penn 3; Virginia 4; Fewer than Three 24.

This information comes with the same two caveats as the JD numbers.

First, the spreadsheet reports the number of hires who received a fellowship from a particular school who accepted a tenure-track job, but not the number of fellows who received a tenure-track job offer. This caveat likely applies to all or nearly all fellowship programs. Presumably, someone choosing between fellowships cares more about how many people received tenure-track job offers than about how many people accepted those offers.

Second, the spreadsheet reports the count of fellows, but not the rate at which fellows received (or accepted) offers. A smaller program with a high placement rate thus might not appear on the chart, whereas a larger program with a low placement rate might appear. This caveat means that smaller programs may be undervalued if one relies only on this data, while larger programs might be overvalued.

Q: Tell me more about these advanced degrees. 

Okay, but first a caveat: Although some people had more than one advanced degree, the following looks only at what seemed to me to be the "highest" degree someone earned. For example, someone with a Ph.D. and an LL.M. would be counted only as a Ph.D. for purposes of this question. (This tracks the "Other Degree (1)" column.)

That said, looking only at what seemed to be the most advanced degree, and including expected degrees, the 52 "highest" advanced degrees broke down like this:

Highest Degree.20190610

Doctorate (Ph.D., SJD, JSD, D.Phil.) 40; Masters 9; LL.M. 2; MBA 1; MD 1.

Topics ranged all over the map. For the 40 Doctorates, 7 had degrees in Law; 3 in Economics, 3 in History, 3 in Philosophy, 3 in Political Science, 3 in Sociology; 2 in Politics; and the other doctorate topics, each of which had only hire, were African-American Studies, Anthropology, Business & Public Policy, Corporate Law, Criminology, Ecology, Empirical Legal Studies, Government, International Relations, Law & Econ, Legal History, Managerial Econ & Strategy, Mgmt Sci & Engineering, Modern Thought & Literature, Religious Studies, Rhetoric.

Q: What is the percentage of doctorates over time?

There are a notably higher percentage of doctorates over the last three years. It will be interesting to see whether this trend continues.

Percent Doctorate.20190610

Q: How long ago did these reported hires get their initial law degrees?

JD Year.20190613

Zero to Four Years (Graduated 2015-2019) 19; Five to Nine Years (Graduated 2010-2014) 33; Ten to 19 Years (Graduated 2000-2009) 28; Twenty or More Years (Graduated before 2000) 1.

Q: How do the "time since initial degree" numbers compare to previous years?

A: They are very similar.

Years Since JD Chart.20190613

Q: Could you break the reported hires out by men/women?

Men Women.20190613

Men 49 (60%); women 32 (40%). (Let’s say this is right within +/-2 people.)

Based on a quick count of a number of years of spreadsheets that I happen to have, gender hiring over time follows. (I’ve left out the data labels because I am even less sure than usual of the exactness of the numbers, but they’re roughly right as reflections of self-reported hiring each spring—first Solum’s reports, then mine. And as always, 2010 is left out due to missing data for that year.) 


Q: More slicing! More dicing! Different slicing! Different dicing!

Sure--you can do it yourself, or ask questions in the comments and I'll see what I can do, or we'll work it out as a group.

Q: This is all wrong! I know for a fact that more people from School Y were hired!

Yes, this spreadsheet is certainly missing some information. Repeat: this spreadsheet is incomplete. It represents only those entry-level hires that were reported to me, either through the comments on this blog or via email. It is without question incomplete. 

If you want to know about real entry level hiring, I commend to you Brian Leiter's report (hiring 1995-2011), the Katz et al. article (all law professors as of 2008), the George and Yoon article (entry level, 2007-2008 hiring year), and the Tsesis Report (entry level, 2012-2013 hiring year). This is just a report about self-reported entry level hires as of the spring before the school year starts. 

Q: Is this available in an easy-to-print format?

A: Why, as it happens, yes!

Originally posted 6/5/19; updated 6/10/19 to reflect one additional hire; updated 6/13/19 to reflect one additional hire.

Posted by Sarah Lawsky on June 4, 2019 at 04:03 PM in Entry Level Hiring Report | Permalink | Comments (8)

Reacting to "Chernobyl"

I finished watching HBO's wonderful mini-series Chernobyl. It is interesting to see the distinct messages drawn from opposing political sides--the same show being watched in different universes.

For many conservatives, the message is "Soviet Union/Communism/Socialism is bad." The insight of the series is how bad things are when the state owns things like nuclear power plants, as well as the scientific institutes that investigate accidents. The current relevance is how much better we are because there is no Soviet Union and how bad it would be if one of those socialists became President.

For many liberals (and for the producers of the series), the message is "the cost of lies," the line with which the lead scientists begins and ends the series. The insight is the lies (or false denials) surrounding the fact and severity of the accident and the lies surrounding the cause of the accident. The current relevance is that we have similar problems of governmental lies and secrecy and willingness of people to lie to protect the government or its leaders. People will lie on behalf of many leaders, not only a communist state.

For what it is worth, showrunner Craig Mazin says it is both: "It’s anti­–Soviet government, and it is anti-lie, and it is pro–human being."

Posted by Howard Wasserman on June 4, 2019 at 02:51 PM in Culture, Howard Wasserman, Law and Politics, Television | Permalink | Comments (8)

JOTWELL: Wasserman on multiple authors on the problems with SCOTUS term limits

I have the new Courts Law essay, reviewing Christopher Sundby & Suzanna Sherry, Term Limits and Turmoil: Roe v. Wade's Whiplash (forthcoming in Tex. L. Rev.) and Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court (forthcoming in Yale L.J.). The first article shows the doctrinal instability that might arise from 18-year term limits, using an empirical study of Roe; the second offers two alternatives to term limits.

One of the Epps/Sitaraman proposals would have a fifteen-person SCOTUS comprised of ten permanent Justices (five from each major party) and five lower-court judges sitting for one term, chosen unanimously by the permanent members. Democratic presidential candidate Pete Buttigieg has endorsed that proposal, but Elie Mystal believes it is unconstitutional and naive, if exciting.

I somewhat like the other Epps Sitaraman proposal of the Supreme Court Lottery--the "Court" consists of every court of appeals judge and each sitting two-week sitting features a randomly selected panel of nine. This would have the interesting effect of making SCOTUS more like an ordinary federal court, which might not be a bad thing.

Posted by Howard Wasserman on June 4, 2019 at 11:26 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (2)

AALS CFP: Corpus Linguistics & IP

The following is a CFP for the 2020 AALS Annual Meeting, co-sponsored by the Sections on IP and Law & Interpretation

Recent developments in data-based text analysis provide tantalizing opportunities to transform constitutional and statutory analysis. They may also provide new opportunities to understand infringing similarities in patent claims and copyrightable expression and to track the acquisition and loss of source significance. This panel will consider how corpus linguistic and other data-driven text analysis techniques might transform our understanding of how IP rights are acquired, shaped, and enforced.

The Sections on Intellectual Property and Law & Interpretation are pleased to announce a Call for Papers from which up to three additional presenters will be selected for the above program, to be held during the 2020 AALS Annual Meeting in Washington, D.C. on Sunday, January 5, at 3:30pm.

We welcome 500-word proposals for presentations on this subject, to be submitted by August 15, 2019. Please send proposals electronically to Professors Jake Linford (Florida State) at [email protected] and Karen Petroski (Saint Louis) at [email protected] Presentations will be selected after review by members of the Executive Committees of both sections and the Program Committee of the Section on Law & Interpretation. Please contact Karen Petroski and/or Jake Linford with any inquiries or questions.

Posted by Howard Wasserman on June 4, 2019 at 09:31 AM in Teaching Law | Permalink | Comments (1)

Monday, June 03, 2019

Amar on exam-writing

Vik Amar at Above the Law offers some thoughts about writing good exam/assessment questions. He hits on four ideas: Offering more and different assessment opportunities; having a balance of open- and closed-book assessments (the latter to account for the need to prep for the Bar); using real cases or events (good idea, but be careful how you write it); and proper notice of the rules. Interestingly, on the third point, Amar does not warn about students being upset, offended, or traumatized by the real-world situations.

Posted by Howard Wasserman on June 3, 2019 at 08:30 PM in Howard Wasserman, Teaching Law | Permalink | Comments (3)

It's all claim-processing rules

In a decision surprising no one, a unanimous Court,, per Justice Ginsburg (of course), held in Fort Bend County v. Davis that Title VII's administrative-exhaustion requirement was a mandatory, but non-jurisdictional, claim-processing rule.

The opinion adds a bit to its framework, stating that jurisdictional is "generally reserved for prescriptions delineating classes of cases a court may entertain (subject-matter jurisdiction) and the persons over whom the court may exercise adjudicatory authority (personal jurisdiction)." Other prescriptions can become jurisdictional if Congress includes them in a jurisdictional provision, such as an amount-in-controversy. The opinion also hints at an overwhelming presumption that a provision is non-jurisdictional. Congress must "clearly state" something as jurisdictional, otherwise courts must treat is as non-jurisdictional, pointing to a growing list of non-jurisdictional claim-processing rules and preconditions for relief.

The Court then makes quick work in classifying this as non-jurisdictional. It does not appear in either § 1331 or Title VII's statute-specific jurisdictional grant; it appears in separate (although nearby) provisions that do not speak to jurisdiction or the court's authority. Instead, they speak to a plaintiff's procedural obligations--what it must do prior to commencing civil litigation--submit papers to the EEOC and wait a specified period; this is kindred to raising objections or registering a copyright before filing suit. That the exhaustion requirement serves important purposes--encouraging conciliation and giving the EEOC first crack at enforcement--did not affect the jurisdictionality question (although it could affect whether a provision is mandatory.

Finally, it is worth noting that the list of non-jurisdictional claim-processing rules and preconditions to relief includes Arbaugh's numerosity requirement. I would have said that this is neither, but a merits rule--the scope of the statute and who is covered by it. I am not sure what to make of this conflation. But I am most interested in the merits/jurisdiction line, so it is worth following.

Posted by Howard Wasserman on June 3, 2019 at 01:27 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Sunday, June 02, 2019

Saint Louis University Law Journal Call for Submissions

The Saint Louis University Law Journal is seeking submissions for its General and Teaching issues.  The General issue will focus on topics of interest to practitioners, but content on any subject is welcome.  For this year's Teaching issue, the theme of which is Property, submissions should address teaching the Property course, or other topics in the law of Property.   General issue submissions are due mid-July; Teaching issue submissions are due September 1.  Please direct submissions or questions to Jackie Coffman, Articles Editor for Vol. 64, at [email protected].

Posted by Howard Wasserman on June 2, 2019 at 11:18 AM | Permalink | Comments (0)