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Saturday, June 29, 2019

Another remedy in The Wall

Judge Gilliam of the Northern District of California issued two orders on Friday declaring invalid President Trump's efforts to divert funds for building The Wall. In Sierra Club v. Trump, the court permanently enjoined three acting cabinet officers and "all persons acting under their direction" from "taking any action to construct a border wall" in certain areas using certain funds. In California v. Trump, the court declared the use of the same funds for some of those sections unlawful, but declined to grant a permanent injunction. The court also ensured that the cases could be appealed together by certifying California for FRCP 54 appeal, along with the immediately appealable injunction.

Sierra Club does not speak to the scope of the injunction, because this is a case of indivisible relief and remedy. The court cannot enjoin the use of funds for the wall as to the plaintiffs but not to non-parties; any prohibition on the use of funds unavoidable inures to everyone's benefit, even if the injunction is formally particularized to the plaintiffs.

The court justified denying the injunction in California by pointing to the injunction in Sierra Club prohibiting use of funds on the same sectors of wall. California (and New Mexico, its co-plaintiff) would suffer no irreparable harm, because the injunction protects them in effect if not in name. This provides an interesting example of when declaratory relief may be sufficient and an injunction unnecessary--when an injunction protects the D/J plaintiffs, so the declaration is sufficient. It also answers the Ninth Circuit's question about whether a universal injunction in one case moots another--it does not moot the case because a declaratory remedy may be effective, although an injunction is not warranted. (Not that courts should issue universal injunctions--but this is the practical effect if they do).

Posted by Howard Wasserman on June 29, 2019 at 09:49 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Friday, June 28, 2019

What Did the Joint Committee on Reconstruction Look Like?

On Tuesday I went to the National Constitution Center in Philadelphia. I was there to see a new permanent exhibit on the Civil War and Reconstruction. The exhibit is terrific and I would highly encourage anyone who is interested to go. (They even have an 1867 letter from John Bingham.)

One thought that crossed my mind afterwards was that there was no visual depiction of the members of the Joint Committee on Reconstruction. Upstairs in the Constitution Center there is a popular room with life-sized bronze statutes of the delegates to the Constitutional Convention. While I can see that more bronzes would be expensive, you would think that some photo or illustration would suffice.

Then I realized that there are hardly any illustrations of the Joint Committee. And, as far as I know, no official photos. I could only find one illustration after doing some research, which I've added below. (Bingham is seated on the extreme right front. )


Posted by Gerard Magliocca on June 28, 2019 at 08:55 PM | Permalink | Comments (0)

Thursday, June 27, 2019

Justice Kagan Cannot Be Serious

The opening line of Justice Kagan's dissent in the partisan gerrymandering case must be bad joke. "For the first time ever," she writes, "this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities."

The first time ever? That's preposterous. How about Marbury? How about Ex Parte McCardle? How about Worcester v. Georgia? Or Giles v. Harris? I could go on, but you get the point.

For what it's worth, I think that the Court made the correct decision, as I explained in a post from the Fall when the case was argued. I could not (and still do not) understand the constitutional injury to an individual voter from partisan gerrymandering. Nor do I see how a manageable standard for courts to apply. Justice Frankfurter was right about the existence of a "political thicket," even if he was wrong about exactly where the forest begins.

Posted by Gerard Magliocca on June 27, 2019 at 08:52 PM | Permalink | Comments (17)

Democracy and judicial review

Chief Justice Roberts' decision for the Court in the partisan gerrymandering cases accepts that partisan gerrymandering is a bad thing, but insists that it must be left to popular and political processes. He emphasizes the numerous bills introduced in Congress over the years that would address this. Justice Kagan's dissent nails him with the obvious: "[W]hat all these bills have in common is they are not laws" and not likely to become laws, because the politicians who would make these bills into laws are not going to undo the partisan gerrymandering from which they benefit.

I am going to give Roberts a small credit for implementing a neutral theory: These bills have not become law because legislators have not acted because the courts were available as a backstop against the problem. This is a version of the criticism that judicial review worsens the legislative process, because legislators need not take their obligations seriously knowing that the courts will clean up their mess. With the federal courts out of this game, Congress will now take seriously its obligation to address what everyone recognizes is a problem.

Of course, this credit assumes that Roberts would not read "Legislature thereof" in Article I, § 4 to preclude federal action limiting districting just as he read the term to prohibit redistricting commissions.

Posted by Howard Wasserman on June 27, 2019 at 01:05 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)

Wednesday, June 26, 2019

Balls, strikes, and ground-rule doubles

In his opinion concurring in the judgment in Kisor v. Wilkie and arguing for overruling Auer deference, Justice Kavanaugh gave us this:

Umpires in games at Wrigley Field do not defer to the Cubs manager's in-game interpretation of Wrigley's ground rules. So too here.

I know analogies are only analogies and never exact. But they should be close enough to be helpful and this one is not. The problem is that the role of the Cubs and the role of an administrative agency, such as the VA, are not the same in one critical respect--an agency is charged with enforcing the regulations that it enacts, the Cubs are not.

An agency is charged with enforcing a statute, including making regulations to assist with that enforcement. Auer deference thus makes sense for the same reason that Chevron deference makes sense--give the enforcing agency some room to carry out its enforcement obligations, so long as its interpretations are reasonable. The Cubs' responsibility is to enact ground rules unique to their park--e.g., a ball that sticks in the outfield-wall ivy is a dead ball, the batter awarded second base, and runners awarded two bases--but not to enforce those ground rules, a power that rests with the umpires in the first instance.

It seems to me that this makes a difference, rendering the analogy pointless. There may be good reasons not to defer to an agency's interpretation of the regs it is charged with enforcing. One of those reasons is not that we do not defer to a different "agency's" interpretation of the regs it enacts but is not charged with enforcing.

Posted by Howard Wasserman on June 26, 2019 at 06:06 PM in Howard Wasserman, Judicial Process, Sports | Permalink | Comments (7)

Mueller Report: The Movie

Ask and ye shall receive.

Posted by Howard Wasserman on June 26, 2019 at 08:29 AM in Howard Wasserman | Permalink | Comments (0)

Tuesday, June 25, 2019

Questioning "Yesterday" (non-law)

The movie Yesterday is about a world in which a power-outage causes everyone but one person to forget that Coca-Cola and the Beatles existed, so that person (an otherwise-unsuccessful singer-songwriter) becomes a world-famous star by "writing" the Beatles songs.

This review questions the musical premise, arguing that what makes the Beatles music special was their evolution. "She Loves You" was a sensation because the world had not yet heard "Hey Jude" or "Let It Be"--or better still, "A Day in the Life," which everyone seems to rank as their greatest song (not sure if it appears in the film). And it is musically impossible for those songs to be released simultaneously--and for the earlier song to catch on against the later song.

I question the premise from a different point: The movie assumes the Beatles songs sang themselves. The songs made the Beatles great, not how well the band played them. So any schmuck could perform a Beatles song (if no one had ever heard the Beatles sing it) and become as big as the Beatles were.

For more, here is a conversation at the Ringer on the broader implications of the film's idea.

Posted by Howard Wasserman on June 25, 2019 at 04:38 PM in Culture, Howard Wasserman | Permalink | Comments (10)

Monday, June 24, 2019

Whither Cohen?

In Iancu, Justice Alito's concurrence and the Chief's partial dissent both assert that Congress could constitutionally prohibit trademarks for vulgar or profane words (The Chief argues that Congress did so in the word "scandalous," while Alito argues Congress must amend the statute to do so). Alito goes so far as to argue that the word fuck, as hinted at in the F-U-C-T mark, "is not needed to express any idea and, in fact, as commonly used today, generally signifies nothing except emotion and a severely limited vocabulary."

But neither Alito nor the Chief cites Cohen. (Neither does Justice Kagan's majority opinion, because "scandalous" is not limited to vulgarity or profanity, so it does not matter to her analysis). And Cohen answers Alito's argument that profanity signifies nothing except emotion--emotion is an essential and inseparable part of the message.

Only Justice Sototmayor's partial dissent (joined by Justice Breyer) addresses that case. She argues that, at best, Cohen means that a restriction on profanity is viewpoint-neutral content discrimination. Profanity "tweaks" or "amplifies" the viewpoint, such that the message is without the profanity is "not quite the same" as with it. But targeting profanity does not target the viewpoint expressed in the message--California would not have allowed a jacket with "Fuck Draft Protesters."

I see Sotomayor's point, although I am not sure I agree. First, consider Justice Alito's plurality (which Sotomayor did not join) in Matal v. Tam, in which Alito argued that the "disparaging-mark" provision was viewpoint-discriminatory. Alito called it a "happy-talk clause" that prohibited registering any mark that criticized, whether the target was racists or anti-racists. A "clean-talk clause" should be equally problematic.

Second, if Sotomayor is correct, it gives short shrift to the possibility of the trademark program as a public forum, specifically a "limited public forum." A limited public forum is supposed to be a designated public forum (government space, opened for speech), although limited to specific speech or speakers. The limitations on the forum must be defined in viewpoint-neutral terms, although the terms can be content-discriminatory (e.g., a forum can be limited to political speech, but not to conservative political speech). Once that forum is established, any content-based restrictions on speech otherwise within the forum must survive strict scrutiny. Unfortunately, the Court has never explained well how to identify the definition of the limited public forum (which merely must be viewpoint-neutral) and exclusions from the established forum (which must be content-neutral, unless able to survive strict scrutiny). Sotomayor believes that, if the trademark system is a forum, the prohibition on "scandalous" (interpreted as "profane") marks makes it a limited public forum for non-scandalous (meaning non-profane) marks. But it as reasonable to see the trademark system as a limited public forum for "marks related to products offered for sale in interstate commerce." In that case, the limitation on scandalous/profane marks, being content-based under Cohen, must survive strict scrutiny.

Maybe this issue comes back around when Congress amends the trademark law to expressly prohibit profane marks.

Posted by Howard Wasserman on June 24, 2019 at 01:57 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Justice Alito takes on SJWs and foreigners

From the first paragraph of Justice Alito's concurrence in Iancu v. Brunetti:

Viewpoint discrimination is poison to a free society. But in many countries with constitutions or legal traditions that claim to protect freedom of speech, serious viewpoint discrimination is now tolerated, and such discrimination has become increasingly prevalent in this country. At a time when free speech is under attack, it is especially important for this Court to remain firm on the principle that the First Amendment does not tolerate viewpoint discrimination. We reaffirm that principle today.

It is impossible to read that as anything other than an attack on progressives who would like hateful and discriminatory speech prohibited, especially on campus. Or an attack on Twitter and Facebook for their supposed anti-conservative bias in banning certain users. Or a potshot at European countries such as France and Germany, which maintain democracies committed to free speech while prohibiting viewpoints such as Holocaust-denial.

The idea that "free speech is under attack" has migrated from the Intellectual Dark Web to the U.S. Reports.

Posted by Howard Wasserman on June 24, 2019 at 01:14 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Sunday, June 23, 2019

Institutional Flip-Flops and Mushy Doctrine: Why Gorsuch’s Non-Delegation Revolution Won’t Happen

Following my post below on Gundy, I got some typically thoughtful push-back from Nick Bagley (on Twitter) and Marty Lederman (in the comments) that I thought deserved a whole new post on why I think that mushy doctrine cannot generally be the vehicle for a constitutional revolution. Mushy doctrine typically leads to institutional flip-flops — that is, inconsistent use of the doctrine to invalidate laws disliked by the swing voter on the SCOTUS. The members of a would-be SCOTUS majority that cares about the institutional principle (say, that the executive should be constrained by legislation in some mushy way), anticipating such flip-flops, backs off enforcing the principle in any case where a law that the member likes is at risk. Lacking any mechanism for assuring each member that the principle will be consistently enforced across cases, the would-be coalition falls apart. The SCOTUS eventually converges on pure Thayerism, adopting abnegating (in Vermeule’s term) legal constraints that mostly pass the buck to the political branches.

In short, one cannot hold together a coalition without some sort of plain doctrinal “contract” that makes it easy to name and shame defectors. Mushy doctrine IMHO cannot be the basis for such a contract. After the jump, some specific illustrations from immigration law for why the coalition being summoned by Gorsuch’s dissent in Gundy will (again, just MHO as a betting man) never emerge.

Suppose that Gorsuch rallies Kavanaugh, the Chief, Alito, and Thomas to support some sort of more robust “legislative-delegations-of power-to-the-executive-cannot-be-too-broad” principle. Even if all five agree that they will take a “principled” stand and enforce this mushy principle consistently against both “liberal” and “conservative” statutes, the cases do not come to the SCOTUS all at once but seriatim. So how can each member of the would-be coalition be assured that their fellow coalition partners will hold fast to the bargain when the preferences of the coalition members start to diverge?

The Trump Administration starkly poses this problem of coalitional instability for the Gorsuch Five, because the first few cases involving vague delegations will likely involve statutes favored by the Trump Administration and nativist conservatives. (Indeed, the statute most vulnerable to a non-delegation challenge might have been 8 U.S.C. Section 1182(f) at issue in Trump v. Hawaii). Consider, for instance, the power of the AG to define “particular social group” (“PSG”) under the Refugee Act: General Sessions used this power to exclude victims of private violence from the scope of PSGs in Matter of AB.

I was speaking last night to an experienced immigration law who was ecstatic that Gorsuch & Co. might strike down broad delegations of power to agencies, because she is fighting the Trump Administration’s use of such delegations in Arizona to deny entry to refugees who are fleeing gang and domestic violence. If liberal circuit judges take a cue from Gorsuch and start striking down these “conservative” laws on some sort of non-delegation basis, then the Gorsuch Five will face a difficult choice: They could risk getting hate mail from Trump’s fan base and uphold the liberal judges’ decisions to lay the groundwork for a later and larger scale attack on other statutes (say, the Clean Air Act, the OSH Act, etc.). But their decision will hearten the Resistance and undermine Trump who is the source of judicial appointments that share Gorsuch’s views.

Being principled jurists, the Gorsuch Five could brush aside these worries and strike down those vague delegations that produce conservative results in particular cases. Each member might, however, reasonably worry that the mushy principle will not be consistently followed over the future run of cases involving “liberal” statutes by other members of their coalition. Some swing voter, some squish (the Chief, maybe?) will balk when an extraordinarily popular and long-standing statute like the OSH Act is on the block. The mushiness of the “too-broad” principle allows such defections. Of course, dissenters will denounce the defector, but the defector could credibly say that this case is different and be applauded by a sufficiently large number of lawyers and profs for their “statesman-like” under-theorized opinion that the biting dissents will not bite too hard.

The Gorsuch Five, therefore, may anticipate that their mushy principle will be used as a tool of the Resistance and discarded once Trump is out of office. Such an institutional flip-flop, of course, does not advance the “principled” separation-of-powers agenda of the Gorsuch Five. So they balk. Someone like Justice Alito concurs with the liberals in upholding a very broad delegation, saying that it would be “freakish” to invoke the non-delegation principle against SORNA (a statute favored by conservative law-and-order types) when there is no assurance that the same principle will be consistently enforced in the future against other statutes.

In fact, that’s close to what Alito actually wrote in his Gundy concurrence — not, to be sure, with the coalitional logic laid out neatly, but a wink is as good as a nod to a blind man. I have spoken to judges at various FedSoc events in which conservative judges have bluntly told me that they will not reinvigorate various principles that they generally favor (Separation of Powers of various stripes, Thayerism, federalism of this or that variety, textualism, etc), unless they can be sure that such general principles will be consistently enforced against both liberal and conservative positions. Of course, they are absolutely correct to take such a stance: It is madness to adhere individually to a “principled” stance that produces unprincipled outcomes, because it is the outcomes and not the ringing rhetoric of frustrated dissents that we should care about.

Gorsuch lacks a crisp doctrine that can anchor a doctrinal coalition that will consistently attack the Administrative State. The suspicion runs high in conservative circles that Roberts is a squish who could play the role of swing voter that Kennedy once played, undermining any across-the-board adherence to any austere non-delegation principle. I predict, therefore, that the coalition needed to undermine the Administrative State over even a medium run of cases will never emerge for decision-theoretic reasons: Absent a mechanism of credible commitment, there will always be defectors in every case who balk at enforcing the principle against laws or agency actions that, for “attudinal” reasons unrelated to the principle, they favor. (Think of Justice Alito’s “I-like-dogs” dissent in United States v. Stevens as the paradigm of such a defection).

Yes, Nick Bagley is absolutely right that Gorsuch is playing the long game. But to play that game, you need more than a wish: You need a credible commitment. Only hard-edged, crisp, defection-proof doctrine provides such a commitment, and the Gorsuch Five cannot agree on any such doctrine. So I sleep soundly at night knowing that the Administrative State is likely perfectly safe.

Posted by Rick Hills on June 23, 2019 at 10:54 AM | Permalink | Comments (12)

Saturday, June 22, 2019

Basketball trumps football for UConn

News that UConn is leaving the AAC to return to the Big East (now as the lone non-private-Catholic school and one of two non-Catholic schools, with Butler (ed.)) reminds me of this post about whether to preference basketball or football. The original Big East dissolved because the schools with football history and ambition wanted more, causing three early members (Pitt, Syracuse, and BC) to eventually leave for the ACC and the Catholic schools that did not want to have big-time football to break away (rebranding as the new Big East). UConn was the one original/early Big East school without a good home when the music stopped--still wanting big-time football but not good enough at it (or in a big-enough market) to attract the ACC or Big 12.

This move shows UConn prioritizing its non-football teams, especially men's and women's basketball. No team in the AAC could compete with UConn in women's basketball--the women never lost a conference game. And the AAC was a lower-profile conference from which it was harder for the men to build a national-championship-level team (although it is impossible to know if the problem was the conference or being unable to replace Jim Calhoun as coach). UConn plans to maintain FBS football, so it is considering options for that team--staying in the AAC as a football-only school (Navy holds the same status), becoming a football independent, or joining another conference as football-only, perhaps C-USA (which is where FIU plays).

But this is the rare example of a school doing something to benefit its basketball teams at the expense of its football team.

Posted by Howard Wasserman on June 22, 2019 at 07:15 PM in Howard Wasserman, Sports | Permalink | Comments (1)

Gundy, Constitutional Coalitions, and the Credible Commitment Problem of Constitutional Doctrine

Gerald’s analogy between Gorsuch’s dissent in Gundy v. United States and United States v. Lopez strikes me as exactly right: There is a high probability that the SCOTUS will, some time in the near future, strike down some statute as a way of sending the message that the Non-Delegation Doctrine remains a part of the judicially enforced Constitution — but that opinion will later be quietly nullified by lower courts just as Lopez itself was quietly nullified prior to Raich — with the SCOTUS’s tacit blessing of repeated cert denials. As Gerald notes, the problem is that “it's simply too hard for the Court to create a sensible distinction between valid and invalid delegations.”

Put another way, the “intelligible principle” doctrine violates itself: It lacks any intelligible principle. As I wrote last year, “SCOTUS would have to be immune to irony to confer on itself unbridled judicial discretion to decide whether an agency has unbridled executive discretion.”

The problem with unintelligible doctrines like the “intelligible principle” doctrine is coalitional instability. As I suggested in a different context back in 2015, “neither side will rationally stick with a principle that it suspects its rivals will ditch when the ideological value sign of the case changes.” Aided by a swing vote in the center, liberals plus the swing vote will invoke the mushy doctrine against conservative statutes; conservatives (plus the swing) will invoke it against liberal ones, and the doctrine itself will become little more than a marker for the essentially legislative discretion of the SCOTUS. On this coalitional view of constitutional doctrine, Justice Alito is correct to note how “freakish” it is to invoke a mushy doctrine like the NDD as a way to induce Congress to write clearer statutes. Why would a closely divided Congress that cannot agree on crisp statutory language be averse to delegating difficult questions to a closely divided SCOTUS that cannot define a clear NDD? If the NDD empowers the swing vote on SCOTUS to rule on the statute’s validity, then vague delegations become a rational insurance policy for swing members in Congress elected from purple districts where any plain roll call votes could arouse the ire of either extremist primary voters or general election median voters. Why not duck the blame by adopting vague language the constitutional sufficiency of which will be decided by a reliably moderate SCOTUS swing vote?

By fostering the sort of coalitional instability in SCOTUS that a delegation-prone Congress would want to exploit, the Non-Delegation Doctrine actually undermines its own goals. That’s why I agree with Gerald’s prediction that the NDD will never have real bite: It is hard to believe that Chief Justice Roberts, SCOTUS’s likely swing vote, will, in the long run, want to take the blame for striking down unintelligibly vague statutes with an unintelligibly vague doctrine.

Posted by Rick Hills on June 22, 2019 at 10:25 AM | Permalink | Comments (2)

Friday, June 21, 2019

The Coming Lopez Moment for Non-Delegation

In Gundy v. United States, the Supreme Court rejected another claim that a federal statute delegated too much discretion to the Executive Branch. The separate opinions, though, indicate that we are not far from the point when this doctrine will be invoked to strike down a federal law. After all, Panama Refining has never been overruled by the Court. Thus, nothing need be expressly overruled. 

What form will this action take? My thought is that it will look much like United States v. Lopez. In other words, the Court will find a very inconsequential statute on which to take a stand holding that too much delegation will occur. This decision will create a lot of noise, but will not be followed up because it's simply too hard for the Court to create a sensible distinction between valid and invalid delegations. But if such a outer-boundary decision causes Congress to write statutes more carefully, count me in. 


Posted by Gerard Magliocca on June 21, 2019 at 08:55 PM | Permalink | Comments (2)


Works-in-Progress (WIP) Panel at AALS, Washington, DC, Sunday, January 5 2020 from 10:30-12PM

The AALS Section on European Law invites submissions for a works-in-progress panel at the January 2-5, 2020 Annual Meeting to be held in Washington, DC. Papers may concern any matter related to European Law and Comparative Law. Papers must be “in progress” as of the time of the Annual Meeting in January 2020. (A paper accepted for publication but still undergoing revision is considered “in progress.”) This panel will provide speakers the opportunity to present their work and receive feedback from commentators in the field. Pre- tenured professors and junior scholars are strongly encouraged to submit. 

Submission Guidelines:

  • To be considered, submit a title and abstract to Mathilde Cohen

([email protected]) and Kristen Barnes ([email protected]) by 12PM (EST)

on August 1, 2019.

  • Paper drafts will be due on December 15, 2019 to be circulated among panel participants.

Up to four speakers will be selected from this Call for Papers. Selected speakers will be notified by August 30, 2019.

Posted by Howard Wasserman on June 21, 2019 at 12:37 PM | Permalink | Comments (0)

Interview with Robert Lawless from the University of Illinois College of Law on Illinois's Academic Fellowship Program

I’m excited to announce the latest interview in my series interviewing VAP and fellowship directors.  This interview is with Bob Lawless, the Max L. Rowe Professor of Law at the University of Illinois College of Law.  Bob has historically overseen Illinois’s Academic Fellowship Program.  An edited transcript of our conversation is below, and I have invited Bob to respond to any questions in the comments.  Thanks, Bob, for participating in this series!

You can read more about the structure of these interviews and other caveats related to them here.  For more information about law faculty hiring generally, check out the section of the AALS's website devoted to this topic at https://teach.aals.org/.

Q:  Tell me your role with Illinois’s VAP program.

A:  I was in charge of it, for lack of a better word, first as the associate dean for research. After I stopped being the associate dean for research, the work for overseeing the VAP program was transferred to a committee that I chaired. I actually stepped back from that role last year, but given my history with the program, it seemed like I was the best person to talk about it.

Q:  I appreciate that. I do think it's best to talk to somebody who's had that experience with it going back a few years, so that's very helpful. What I'd love to do is get some basic information about the fellowship and then go chronologically starting with the application process and then into the fellowship itself.

A:  Sure.

Q:  How many fellows do you typically have, and how long is the fellowship?

A:  Let me answer the second question first. It's a two-year program. At any given time, we have had one, two, or three persons in the program. In more recent years it's been one person at a time with hiring every other year. The main reason for that has been because of the market for entry level jobs, but we have had as many as two or three persons at a time in different stages of the program.

Q:  Great. Do they teach in the legal writing program, or do they teach more traditional doctrinal courses?

A:  They teach in the doctrinal program. They teach one class a semester, which is a light teaching load compared to the rest of the faculty. Our fellows are not only fellows, but they are also a visiting assistant professor of law. In terms of what classes they teach, that gets worked out with the associate dean for academic affairs like any other faculty member.

One of the things we've always tried to emphasize is getting what I call a “bread and butter” law school class for the VAP to teach. Which class varies based on the VAP's interest. We've had VAPs teach in the first-year curriculum with contracts and civil procedure.  We've had a VAP teach professional responsibility. We've had a VAP teach corporations. We've had a VAP teach income tax. It all depended upon the VAP's area of interest. It really helps when the VAP is going on the market to not only just talk about what they might do in a doctrinal class, they can actually say, "Here is what I did."

Q:  Now let's go to the application process itself. We'll go back to the fellowship, but I just want to move through the VAP process starting with the application. When do you start accepting applications for the VAP for the following year?

A:  In the past, we've typically done that early in the fall. That may change in the future just because it seems that people tend to apply later in the fall semester.

Q:  What materials do candidates need to submit?

A:  A CV, a research agenda, and if they would like, letters of reference. I should say some candidates submit a work in progress, but that is not required. Candidates always can find more specific and current information on our web site by Googling “Illinois Academic Fellows Program.”  [Here’s the link.]

Q:  Okay. Is there one round of interviews, two rounds?

A:  It's varied depending upon the year, the number of applicants, and the process. We've typically done the interviews either late in the fall semester right before the winter break or right after we get back. We've done a second round of interviews in most instances. None of the interviews are on campus. We do everything telephonically.

Q:  How do long do those telephone interviews usually last?

A:  Well, the screening interview is 30 minutes. The longer interview, it varies.

Q:  Okay.

A:  I said “telephone.” In today's world, these are Skype interviews where everybody has got a video hookup.

Q:  What is the substance of those interviews? What are you looking for in those interviews? It's a big question, I know.

A:  Yeah, it is a big question. There are the usual things that I think you would look for with any faculty member, which is the scholarly spark – that they're wanting to go into teaching, they're going to have things to say, and they are very driven and interested to do it. I think most candidates today show that pretty readily.

One thing that gets overlooked and is especially important in the fellowship process is showing some flexibility in talking with the committee. Take a candidate who says, "Here is exactly the paper I'm going to write when I get there" and doesn't really show that they're probably going to take mentoring very well, that candidate is probably not going to do well in the interview process.

A second thing is to have really thought a little bit about the teaching side of it – what courses one might be interested in, how one might conduct a class. It's not so much that we're looking for particular answers on those sorts of questions, but just that the person's thought about it. Teaching is a big part of what we do, of course. Candidates should display that they're taking that part seriously. It shows that the person understands what they're getting into in terms of selecting this career.

Q:  How do you try to gauge teaching ability? It's obviously one of the most challenging parts, I think, of the screening process.

A:  Yes. I guess I would go even further in terms of “it's challenging.” I don't even know how well we can do it in a screening process. Obviously, part of it is just the interview and how they conduct themselves in the interview. Some people have some classroom experience. For example, if they've been in a Ph.D. program, maybe have done some adjunct work or something like that, then obviously you can get some teaching evaluations or teaching references. Of course, many candidates don't have that. One of the most difficult things to assess in the interview process is what kind of a teacher is this person going to be?

I think that's a problem. Well, a “problem” is not the right word, but a challenge in any faculty hiring process whether it's the VAP process or entry level or even a lateral. It's hard to judge how the person is going to be in the classroom, yet we do it.

Q:  Going over to the scholarly side, the successful candidate, how much scholarship do they tend to have during the application process? Do they have a full paper, a published paper, more than one paper? What do you find is the norm for candidates who are successful in your process?

A:  I don't think there is a norm. It's varied widely. We've had successful candidates come in really with no papers, or maybe a student note, but nothing post-graduation. We've had candidates come out of a Ph.D. program with maybe a few publications in hand. At least in our program, I wouldn't say there is a norm in terms of the number of pieces that they've had before they come to us.

Q:  And if they don't have significant scholarly writing before they start the fellowship, how is it that you're judging their scholarly potential?

A:  That's part of the research agenda and the interview. The interviews for the VAP positions are just like any other faculty interview where a committee asks questions. You get a sense of what the person is going to be like as a scholar by the way they answered and how they answer – much more than the substance of their answer. Another thing that's been important is thinking about topic selection. That's in the research agenda. Of course, sometimes you see people who are all over the map with topic selection. That can be bad. You want someone that's focused but also not so focused that the research topics will only appeal to a very narrow set of people.

I think in a few pages in a research agenda you get a good sense of how that person is going to think, and how that person is going to write, what they're going to write on, and what methods they're going to use. You get a good sense of whether that's going to make that person stand out when they go to apply for the entry level market.

Q:  Do the programs have any preference for candidates in particular curricular areas? Are you watching, for example, the areas where a lot of law schools seem to be hiring? Any preferences there?

A:  There's two parts to that question. First, we do not have curricular preferences. We've been very adamant about that. We don't use the VAP program to fill any teaching needs we have. In fact, the selection process occurs outside the purview of the people making course-scheduling decisions for that exact reason. We don't have any needs when we go into the fellowship market and say, "You know, we really need somebody to teach this class, so let's find a fellow in that area." We don't do that.

In terms of the market’s preferences, yes, we certainly do pay attention to that. We do think about whether the person's profile is going to be in demand at other law schools in terms of the substance of what they're teaching and what they're likely to be writing.

We also have thought a little bit about the supply side of that equation. Not only is it demand, but we have asked whether the candidate is in area where there's already dozens of people doing the same thing who are going to be the entry level market, or is the candidate presenting a fairly special and different profile?

Similar points can be made about your research agenda question. How do you tell whether a person will be a good scholar? I think is a big part of it is similar to the curricular preferences. From just the research agenda, and the methods they propose, and what they propose to write about, are they going to be writing in a very crowded field and make it hard to distinguish themselves? Or is this somebody that's writing in a way – or using a method even in a crowded field – that's going to make them stand out and be noticed?

Q:  How does the program view candidates with PhDs? Do they have any preference in the hiring process?

A:  No preference for or against.

Q:  Okay. How about practice experience? How much does that matter? And if it does matter, how much experience are you typically looking for?

A:  I definitely think the answer to that has changed over the years. In the broader law school market, I think practice experience is starting to matter a little bit more. We care on the fellowship market to the extent that it's going to be indicative of ultimate success in the entry level market. How much practice experience? More than some. I couldn't put a number on it.

Q:  Right. Do you make any special effort to hire candidates from diverse backgrounds?

A:  Sure. That is always a priority. We've taken steps in the process to make sure that we are considering people from diverse backgrounds, and not only considering them, but doing our best to try to get those people into the applicant pool to begin with.

Q:  Any other criteria that comes into the process? Anything I'm missing?

A:  No. The main thing we've been talking about is this person going to stand out and be successful at the entry level market? I'd say that's the most important thing for us when we're looking for a VAP. We're not looking for somebody who's already finished and ready to go on the entry level market. The question is, with appropriate mentoring and spending a couple of years with our law faculty, is this someone who's likely to be successful on the entry-level market?

Q:  When I announced this interview series, there were many comments on the blog from people saying, "Please ask how candidates without the traditional markers of being a law professor, so perhaps they didn't go to Harvard, Yale or Stanford, and they didn't have an elite clerkship. Ask how those people can stand out in the application process." What advice do you have for those people?

A:  I have a University of Illinois degree. I'm teaching back at my alma mater after having taught at a number of different schools. I'm very sympathetic to that question. The reason I'm having a hard time coming up with an answer is the answer is so varied. Again, I think it depends. What we're looking for is are you going to be successful on the entry level market? I know quite a number of scholars who have been quite successful law professors and therefore were successful on the entry level market without those elite credentials.

They do the sort of things we've been talking about. They do work that's not just another. "Same with me. I'm going to do the same thing everyone else is doing." Here's a good way to say it. If your pitch is “I'm doing what a lot of other people are doing, I'm just doing it better,” that's a very hard case to make. I think if you come to us with a profile that says, "Here's an area that nobody is looking at." Now, it has to be an area in demand, "But here's an area that nobody is really working on. Here's a method that nobody is using. Here I'm going to be able to stand out from the rest of the entry level market." I think you could be successful.  Having an elite law degree or having elite credentials are not going to really matter if you've done that.

Q:  Let's talk about the nuts and bolts of the hiring process. Who actually makes the decision at Illinois whether to hire a fellow?

A:  There's a committee. The committee makes a recommendation to the dean. It puts together a memorandum describing the potentially successful candidate or candidates. The memorandum is sent to the dean, and then it's the dean's decision at the end.

Q:  How many applications do you receive typically in a year? It may vary but in general.

A:  I looked. The last round we had almost 100.

Q:  Is the fellowship renewable? And if so, under what circumstances?

A:  We haven't had that arise. Everybody who's gone through our fellowship has landed an entry level teaching job with two exceptions. One chose to pursue a Ph.D. program, although that person actually had an entry level offer and turned it down in favor of a Ph.D. program. He is now a law faculty member. Another person decided that academia was not for that person and went back into law practice, which I actually kind of view as one of our big successes because that was much better than a world where he would have landed an entry-level teaching job only to find out he did not like it. We've never had that issue of what we would do if it needed to be renewed. Our expectation is it's going to be two years, but I can't speak to what we would do if somebody took more than two years.

Q:  How much are the fellows paid per year?

A:  It's in the mid-60s.

Q:  Do fellows receive health benefits?

A:  Yes, they're full-time employees at the University of Illinois.

Q:  Do they receive access to university or subsidized housing? This may not be as big of an issue in Champaign, but it's on my list of questions.

A:  I realize that. This is Champaign, Illinois, so no. There actually isn't university or subsidized housing for faculty here.

Q:  Do fellows receive travel funding or other professional development funding?

A:  Yes.

Q:  How much if you don't mind me asking?

A:  I don't mind you asking. I don't know off the top of my head. It's thousands of dollars. On a few occasions in the past, when the accounts run out we have been able to support the fellow with other funds at the law school.

Q:  Do they ever receive funding to hire research assistants?

A:  Yes, there's a research account like any other faculty member that they can use in their discretion for travel or research assistance, whatever they want to prioritize.

Q:  Does the school reimburse them for any of the expenses relating to going on the law teaching market, the AALS registration fees or anything there?

A:  I don't believe we've done that, but I can't remember for sure.

Q:  Are they expected to live in Champaign, or could somebody commute from Chicago or New York if they wanted to?

A:  I think somebody who had that as their plan would have a very hard time getting through the interviewing process. Basically yes, a fellow should expect to live in Champaign, but it's not written into the job description. Going back to the interview process, part of the interview is do you want to do this fellowship? In other words, do you want to come here? Do you want to spend time with us learning how to be a law professor? If the answer is “I want to spend most of my time somewhere else,” then our program is probably not a very good fit for you.

Q:  That's a good segue way into my next set of questions around making the most of a fellowship. You were saying it ranges between one to three fellows at a time. Are there any other fellows at the University of Illinois that they might interact with?

A:  The answer is sort of. There are certainly other departments that have fellowships and these other programs. The University of Illinois is a huge place. There's obviously lots of places where our fellows can interact with other persons at their career stage. I think it largely depends upon the fellow whether that's something that's going to be useful to them. It depends upon their research interest and their methods and whether that's something they want to be doing. We're a very, very large state research university. There are all sorts of opportunities around campus to interact with people. When fellows want those sorts of opportunities, we make introductions and get the fellows in front of those other folks.

Q:  How do the fellows participate in the intellectual life of the law school? Do they attend, for example, the faculty workshops there?

A:  Yes. A fellow is appointed as a visiting assistant professor of law, so they're a faculty member. They do everything except they don't have committee work. I always tell the fellows it will be one of their best two years of teaching They get do the fun stuff of teaching and writing without having to do the committee work.


Yes, they attend all the faculty workshops. They're strongly encouraged to attend the faculty workshops. I strongly encourage them to attend the job talks because I think that's something really useful to see, especially your first year as you're starting and seeing people come through and present.

I always tell the fellows to come to the first faculty meeting of the year and then don't come to any others unless you want to because who likes going to faculty meetings? They completely participate in the life of the law school, workshops, again whatever is going on. They're a full-time faculty member, so whatever every other full-time faculty member does, they can do.

Q:  I was going to ask the question who supervises the VAPs, but am I right it's just the dean if they're a typical faculty member, or do they have a more particular supervisor?

A:  There's again two parts to that. They are faculty members, so in one sense they report to the dean and the associate dean for academic affairs like all the other faculty members do. If they didn't turn in their exam grades on time or something like that, they will be talking with the associate dean for academic affairs.

The second part is mentoring. Again, when I was research dean, part of the role of the research dean was to serve as the mentor for all of the fellows. There was a committee who helped me.  When I stepped down being research dean, the mentoring role got transferred entirely to the committee. The chair of the committee sits down with the VAPs, talk to them, makes themselves available whenever the VAPs have a question or anything like that. For example, I would always take the VAP out to lunch the very first thing when they got to campus, and I would talk about different things that they wanted to be thinking about in terms of the fellowship. We would have a talk about laying out a schedule for the entire fellowship, goals to meet in terms of getting work done, and so forth.

You asked who supervises them. Well, I would not call it “supervision,” but there's lots of mentoring opportunities.

Q:  Tell me what that mentoring looks like when it comes to the VAP's papers. Do they have people sitting down reading drafts talking over their ideas with them?

A:  Yes. We've done a lot of different things. One of the things we’ve done – and it might look fairly trivial but I actually think it's really important – Is we have an office that I call the “VAP office,” It's right across from the coffee machine.

Q:  That’s a smart location to put that office.

A:  I think a lot of informal interactions happen with the faculty that way, but there's more formal things. One of the things we've often done with the VAPs – and again, everyone is different, so there's not a one-size-fits-all approach that we've taken – but one thing we've done often is sit down with the VAPs early in their program, and I mean like the first few weeks, and we ask them, "If you have three ideas, write half a page on each of them, or if you have five ideas, write half a page on each of them."

And then we get about eight faculty to sit around a table over just a brown-bag lunch kind of thing and to talk through these different ideas:. Which are more likely to be successful? Which are most likely to appeal to law schools? Which are most likely to do well in a job talk? We try to think about the pros and cons of all the different ideas and help the fellow try to prioritize their work over the next couple of years.

And then in terms of reading drafts, yes absolutely. All sorts of reading occur, and drafts get exchanged. Again, it depends upon the fellow and what their research interest is, but I don't think we've ever had a problem with getting feedback from the subject matter experts in the faculty for the particular subject matter areas in which our VAPs have worked.

Q:  Are they given any assistance in making connections with law faculty at other law schools?

A:  Yes. The VAPs participate as part of our junior faculty workshop exchange. Again, this continues the theme of they're a faculty member like everyone else, so whatever we do for all the other faculty, that's what we do for them. There has been in the past a Big Ten Juniors Scholars Conference that we've had them go to, although I think this last year it didn't get held.  If I'm at a conference, and the VAP is also at the conference, I'll try to introduce the VAP to as many people as I can. I think most of my colleagues do the same.

Yes, there's an effort to try to introduce the VAP to people at different universities. For a lot of these questions the answers it just depends a lot on who is in the VAP. If an individual connection needs to be made, I know my colleagues can pick up the phone and say, "You know, we got a new person here. I think they'd like to talk to you," make the connection, and let the fellow take it from there.

Q:  Good. Do you have any special advice for candidates who come in with PhDs in terms of transitioning back to legal scholarship and then the norm of the legal discipline?

A:  I'm worried about being too candid.

Q:  Feel free to be candid.

A:  My answer would be don't fall for the norms of legal scholarship.

Q:  In what way? 

A:  Look, I have a JD only, but I'm also co-director of our Program in Law, Behavior and Social Science here. I do almost exclusively empirical work. I feel like I can kind of speak to this question as a non-Ph.D.

I think in a lot of other disciplines there's a strong emphasis on making sure that you're right before you have an opinion – make sure that you're right about the facts before you have an opinion. I despair sometimes that the legal discipline is placing an emphasis on being clever versus finding things out and getting facts right.

Fellows who come out of a Ph.D. program where that's been the emphasis – make sure you get your facts right – should not lose that ethic and should not fall into the temptations of trying to be clever and trying to impress student law review editors.

That being said, one of the things that my standard kind of first- or second-day talk with the new VAP included was always that you've got to show that you appeal to all sorts of law faculty because all sorts of law faculty are going to make decisions upon your application.

For somebody who has a Ph.D., what I think that means is to have something that's more traditional and have something that's more in your discipline when you go into market. We encourage the VAPs after the end of the two years to have at least one piece placed and somewhere in the publication process, not necessarily in print. I don't think hiring committees care too much about something being in print as long as it has been accepted. We encourage the fellow also to have an entire draft of the next piece that can serve as a job talk.

For somebody who's got a Ph.D., I think they're wise to take those two pieces and have one be more appealing more to a law audience and then the other appealing to the disciplinary audience of your Ph.D. That way, you show that you can do both.

Q:  I think that's good advice. Let's segue way back over to teaching. You mentioned that they teach two courses. How are those courses spread out over the two years? Do they teach both courses both years?

A:  Yes. We try to keep them doing the same course. We've had a few VAPs who didn't want to keep teaching the same course. We definitely don't want them to be taking up lots of time with new preps.

It is two courses a year, and it is one in the fall and one in the spring. Then that fall of your second year you hopefully have lots of interviews. We try to think about staging teaching obligations in a way that makes it easier to do those interviews, maybe a seminar in that semester that you taught in the first year.

I think a lot of people like to teach seminars, especially when they're first starting out. They actually can be a lot of work because you got to put the materials together. I often talk about the idea that when you're first starting out what you want to get is a “course in a box.” You want a good textbook with a good teachers manual that people have used. You assign the textbook to the students and take off from there. That actually is a lot less work than putting together a seminar.

We usually suggest getting one “bread and butter” course and then something more specialized, which could be a seminar. I don't want to be heard to discourage seminars. They're very valuable. But I think also that if you come out onto the entry-level market having taught two seminars or two just very specialized courses, you're putting yourself at a disadvantage from somebody who's maybe taught one of the more core courses that will be in demand at other law schools.

Q:  What training, feedback, or mentoring do the VAPs receive related to their teaching?

A:  Again, it varies. It's kind of like the article mentoring process. It depends upon the person. We've had people go sit in on classes at the request of the fellow and give advice. We have just had conversations about how to teach. That might be a lunch conversation or even a lunch-time workshop on teaching that includes several law faculty, including the VAP. Sharing of materials is certainly something I know that has happened when somebody comes in and is teaching one of those “bread and butter” classes. One of the other faculty will share syllabi, and notes and stuff like that. Again, the teaching advice really just varies depending on the situation and sort of what teaching experience the person had.

Some people have teaching experience. Other people this is their first time in a classroom. I still vividly remember my first day as a visiting assistant professor in the very first class. I had never taught a class before and was terrified. Somebody like me probably is spending a little bit more time thinking about and needing advice about the mechanics of actually conducting the class, but other people don't need that. It just depends.

Q:  We talked about the research side. We talked about the teaching side. Do the VAPs have any other responsibilities or duties?

A:  No.

Q:  All right, now let's step back for a second. Let's imagine you were talking to a candidate who had perhaps a lot of options on the VAP or fellowship market. How would you try to sell them on the Illinois VAP program? What do you think makes it distinctive or stand out?

A:  I think a lot of the things that we've been talking about. It's not a huge program. In fact, it's very small. You've been asking me questions about what we do for teaching. The answer is again it depends. There's not a huge cohort of people that we've got to just give cookie-cutter advice. The mentoring that the person gets is very tailored and very specific to the person. We're a small enough place that the person will get to know every single faculty member here. I think the faculty are very invested in the success of the VAP program here at Illinois.

We've been quite successful with the program in terms of placing people. I think the faculty is very proud of it. It's been great for the law school. We have alumni of our VAP program all around the country. It's been very successful for the people who've come through as well. I guess I don't know what else I would add. It's a very tailored mentoring environment. I think we're able to do some things here because we're smaller. We're a little bit more flexible.

Champaign–Urbana is a strength and a weakness. Obviously, we're out in the middle of the corn fields, and that's not everyone's cup of tea, but, at the same time, it's a small enough community that people are around. They're going to have lots of interaction with lots of different faculty who are going to have lots of different perspectives. That's an important thing, especially for a VAP, to be having that interaction and not just with people who already think the way you do. Here I'm thinking about methods, the traditional doctrinal law professor, for example, should interact with the social science law professors and vice versa. I tell the VAPs again that you need to get to know and persuade all sorts of different faculty about your application when you go on the entry level market. The more you interact with lots of different faculty, the better off you're going to be.

Q:  Yeah, I agree. Let's turn to the job market. What type of mentoring do the VAPs receive related to the job market in the hiring process?

A:  There is lots of back and forth with their AALS materials in terms of research agenda and FAR form and like that. Obviously, we do mock interviews both the screening interviews and then more of the call back interview. We do job talks.

Q:  Who's doing those? Who's in charge of putting them through that process?

A:  The committee chair. Or, when I was research dean, that was me. The faculty here I think is very invested in the program, and I never had a problem getting together a group of people by saying, "Our visiting assistant professor is going on the job market, and we need some people to listen to their moot job talk." Usually, we do more than one. I think there's a fine line between being overly rehearsed and knowing your stuff. In most cases, I would say well more than half of the faculty listen to a new job talk of the VAP candidate at some point.

We try to get about 8 to 10 people because you don't want too many people in there, and you want to be able to give the person some feedback without it taking the entire afternoon. We usually do at least two moot job talks. We usually do one to give the person some advice and then have them do another one. Whether we need to do another? Again, it depends upon where the person is at, how much time the person has, et cetera.

Q:  That's great. Let's go to some of the broader policy questions around the rise of VAPs and fellowship. What do you think are the benefits of these programs as an entry point to the vast majority of law faculty positions today, and what do you think are the costs?

A:  I think most of the benefits go to the law schools. It's probably a little bit less risky for the law schools to hire someone who has a track record as a VAP. I think there are benefits to the entry level faculty member, but I think most of the benefits go to the law schools. The mentoring that is happening now in the VAP programs used to happen in the early years of a tenure-stream position.

Q:  The hiring law schools?

A:  Right, the hiring law schools on the entry-level markets, but it is not just that. We've been very circumspect about not using the VAP to fill teaching needs. I'm not sure that's happening everywhere. I think some schools might be using VAPs to fill teaching needs, and that's obviously a benefit to the law school.

Back to the entry-level market, you see similar things all across academia. I am on a number of committees that get me out and about around the university. Many fields are going to hiring people who've had more fellowships, and VAPS, and post docs. It's a lot of risk aversion from academics, and law schools are no different.

I don't want to completely ignore the idea that there aren't benefits to the VAP. I think spending two years as a fellow in a law school really helps you a lot as a scholar and as a teacher. If you're coming straight out of a practice background, you have no clue about any of those things. If you're coming out of a Ph.D. program you get acculturated in what's going in the legal discipline, but I still think the majority of the benefits are going to law schools. It's two more years of somebody's life before they get on a tenure stream, and again a lot of this mentoring used to happen after getting hired on a tenure stream.

For a VAP you have to have people who are able to move, and I don't think that's spread across the population equally. Some groups are more able to do a two-year VAP and then move again for a tenure-stream position. It can be harder on people with families. It can be harder on people who perhaps are not as financially well-off. You may get paid a fairly decent salary by comparison to many parts of the university but not certainly by comparison to what many VAPs could be earning elsewhere in the legal profession. I think all of those are the costs.

Q:  Do you think that the fellowships and VAP programs have any responsibility to open up law faculty positions to people from diverse or non-traditional background? And if so, how can they do a better job there?

A:  Yes. Absolutely, law schools have responsibility for that. Law schools should be using their VAP programs to try to increase diversity in all of the ways that you're talking about.

Q:  As you may know, there's a lot of criticism around the VAP and fellowship programs with the idea that the people in these programs obviously get a lot of help from the law faculty at these schools. Therefore, it can be hard for hiring committees to know how much of the work, how many of the ideas come from the VAPs or fellows themselves. What do you think about that criticism?

A:  Well, my facetious answer is that I am not that smart. Anybody that thinks that I was particularly helpful to a VAP must not know me very well.  More seriously, I saw this question on your list of possible questions. That was the first time I had seen that concern.

Q:  Oh, interesting.

A:  You could say that about a lot of junior faculty as well – did someone help them with their work?  If somebody is writing somebody else's law review article or basically telling them what to write, that is academic dishonesty. It's academic dishonesty to basically do someone else's work and let that person put his or her name on it and represent it as that person’s work. It's just academic dishonesty.

We all should presume that the person has done the work that they represent that they have done unless we have evidence to the contrary. Again, it was the first time I'd ever heard that concern. Certainly, when I've served on hiring committees, I've never heard that concern. I have a hard time responding to the question other than to say, well, people shouldn't cheat, so don't cheat.

Q:  What about something softer than cheating? In other words, I don't think that anybody would be writing a VAP or a fellow's article for them. I agree. I think that would be well beyond the pale, but to the extent that fellows or VAPs are in people's offices talking about ideas, and they get faculty members who are saying, "Gee, I wouldn't go with that idea. I'd go with this idea. I think your normative solution doesn't work. You might try this instead." Then it’s harder to tell how many of the ideas in a VAP's papers they came up with.

A:  That is part of being a community of scholars. That's scholarship. That's why we're at universities, and we talk. But I don't see that as ... Who would ever worry about that? Almost all my papers are co-authored and as much social-science as law. Perhaps that experience is affecting my answer. Earlier you asked me what VAPs with a Ph.D. should learn about doing legal scholarship, and my answer was don't fall for the norms of legal scholarship. A better way to say it is not to fall into many of the bad habits of legal scholarship. This question is perhaps reflective of one of legal scholarship’s bad habits. This idea that what makes you a great scholar is that you've been sitting in your office by yourself stroking your chin and you've had this great idea is ridiculous.

If somebody has developed a great paper by talking with people, and discussing ideas and getting feedback, that's what scholars do. I don't even see that as problematic. What I see is the question is problematic because the question makes an assumption about what good scholarship is and it’s the wrong idea of what good scholarship is.

Q:  Yeah. Last question. Given that life is zero-sum in so many ways, time spent in a VAP or fellowship is obviously time not spent, for example, in practice. What do you think about that trade-off, especially given that law schools are in the business of educating lawyers?

A:  Well, I don't think much of it. I hope life is longer than that. You're talking about a very short amount of time compared to the length of a career. You already asked me about the costs and benefits. I do think most of the benefits are going to the law schools. In a perfect world, I would probably not have as many VAPs and fellowships as we have, but given that we do have them, then the trade-off doesn't concern me very much at all.

At the beginning of your career when you're looking to break into teaching and say, "I've been practicing for a few years, and now I've got to do a few more years of a fellowship!" Yeah, that seems like a lot of time when are you starting, but I think looking back on a career when you've been teaching for decades, the couple of years you did as a VAP or a fellow are beneficial and will have helped you. I don't think there's much of a trade-off versus a couple more years in practice. I don't think over the long-run you're really trading anything off.

Q:  Well, thank you so much, Bob. Is there anything else you want to add about the VAP at Illinois, about the state of law faculty hiring more generally?

A:  No, I've probably gotten myself in enough trouble.


Posted by Jessica Erickson on June 21, 2019 at 05:11 AM in Getting a Job on the Law Teaching Market, VAPS & Fellowships | Permalink | Comments (4)

Pozen on video review and soccer

A nice takedown by David Pozen of how VAR alters the "rules" of soccer, for the worse. Pozen's argument echoes this piece on how body cameras affect policing.

Posted by Howard Wasserman on June 21, 2019 at 12:31 AM in Howard Wasserman, Sports | Permalink | Comments (1)

Thursday, June 20, 2019

McDonough and accrual of due process claims

SCOTUS on Thursday held in McDonough v. Smith that a due process claim for fabrication of evidence can be brought only after the underlying criminal proceeding was favorably terminated. Thus a claim brought within three years of acquittal, but more than three years after the introduction of the fabricated evidence. My SCOTUSBlog analysis is here.

The line-up is interesting: Thomas wrote for Kagan and Gorsuch that the Court should have DIG'd the case, because uncertainty about the plaintiff's precise claim made it impossible to determine accrual, so this was the wrong vehicle for deciding the limitations questions.

Posted by Howard Wasserman on June 20, 2019 at 04:12 PM | Permalink | Comments (2)

Justice Gorsuch, standing, and the end of the Establishment Clause

Justice Gorusch, joined by Justice Thomas, concurred in the judgment in American Legion v. American Humanist Association. Gorsuch argues that the plaintiffs lacked standing, because "offended observer" standing should not exist (and really is a product of Lemon, which he reads as having been buried today). Offense is not a basis for standing in any other context and is inconsistent with the rule against generalized grievances. Recourse for offense is either averting one's eyes or resort to political solutions.

If Gorsuch is right, it is difficult to imagine who has standing to bring an Establishment Clause claim. He offers three examples: A student forced to recite a prayer in school, a person denied public office because of his religious affiliations (or lack thereof), and a person denied government benefits for not practicing a favored religion. This seems disingenuous. Two of those examples are not purely Establishment Clause issues--the government official, at least at the federal level, also has a claim under the Religious-Tests Clause; the government benefits claim also could be pursued under the Free Exercise Clause or, as in Texas Monthly (which Gorsuch cites) the Free Press Clause. But a student would not have standing to challenge the prayer if she were merely forced to watch others recite it or to leave the room to avoid it. And no one has standing to challenge any public religious displays. In fact, looking at those examples, it would appear that a state could establish an official church  and no one would have standing to challenge that as long as individuals are not forced to participate in that church or otherwise disadvantaged for their non-participation in the religion.

Gorsuch's rejection of offended-observer standing also is inseparable from the narrowing of Flast taxpayer standing. Gorsuch did not offer a taxpayer as an example of someone with standing, so it appears he does not consider that a viable route. But this further constricts the range of available plaintiffs. The core Flast case has remained narrow because there is usually someone who can show something other than a pocketbook injury--there has been no need for a taxpayer to challenge the use of public funds for the Christmas tree display at City Hall because someone who had to encounter the display in City Hall could bring the claim. That avenue is foreclosed. So I expect the next target will be the core Flast case, where Gorsuch almost certainly lines up with the Chief, Thomas, and Alito.

Gorsuch's argument illustrates, in two directions, the Fletcherian point that "injury" is inseparable from the constitutional right at issue and so is really a merits issue. First, the response to Gorsuch's offense-is-not-injury argument is that the Establishment Clause is different than the Free Speech Clause or the Free Exercise Clause or the Equal Protection Clause. The point of the Establishment Clause is to prevent the government from creating a state religion, either formally or in practice; it prohibits the government from elevating religion and from imposing that elevation on members of the public. Thus, individual constitutional rights are violated by that elevation and being confronted with that elevation, as by erection of a large cross. But there is no equivalent provision prohibiting the government establishing or elevating racist ideas, as by flying the Confederate Flag. Or, to put it in the school context: The Free Speech Clause is satisfied so long as a student need not recite the Pledge of Allegiance (put aside "Under God"); the Establishment Clause prohibits the government from sponsoring prayer, even if participation is not required.

Second, Gorsuch's apparent view of standing reveals the substantive scope of his Establishment Clause. Government elevation or promotion or sponsorship of religion is constitutionally permissible--even to the point of establishing the Church of Alabama or naming the Southern Baptist Convention as the official religion of the State of Alabama--so long as no one is forced to participate or loses out for non-participation. Certainly no one would have standing to challenge that action, because the only injury would be the offense and message of exclusion. In any event, that Establishment Clause does not do any work independent of the Free Exercise Clause.

I would add that I do not follow offended-observer standing wherever it leads. In the travel ban cases, I argued against standing for those individuals claiming offense from the existence of the ban and its application against other people. But the key was that standing (or constitutional violation, as I like to think of it) is tied to execution, not the existence, of a law. So one can claim offense from the erection of the cross, but not from the law authorizing erection; one can claim offense from being barred because of religion, but not from the law authorizing the barring.

Posted by Howard Wasserman on June 20, 2019 at 04:02 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Wednesday, June 19, 2019

Rent Control and the Triumph of the Incumbents’ Economy

Rent control is back on the political agenda, sort of. In the New York legislature, Democrats have agreed on a complex set of proposals to expand rent control by reducing vacancy decontrol, owner re-occupation, and decontrol based on high income renters or “luxury” rents. In Seattle, city politicians are lobbying for a repeal of the state’s statute banning rent control. A similar effort to repeal the Costa-Hawkins Act failed in California last November but will be back on the ballot in 2020.

My own view is that rent control is symbolic of the essentially conservative character of the Left in the Age of Trump. As I wrote here in a WaPo op-ed, rent control is a brick in the wall of what I call the “incumbent economy.” An “incumbent economy” is any system insuring that people who already hold an entitlement get to keep it, even at the expense of newcomers. Beneficiaries of the incumbent economy include tenured profs like myself, tenants with a rent-controlled apartment, taxi medallion owners before the arrival of Lyft and Uber, public employees in a firmly ensconced union, homeowners surrounded by a snug little wall of zoning, and so forth. There are advantages to protecting economic incumbents: By insuring them against big losses, one can reduce their opposition to changes that increase or redistribute overall wealth.

People who style themselves as “the Left,” however, do not generally trumpet the benefits of protecting the status quo. That is why the single-minded focus on rent control seems a little odd to me. Rent control is fine as far as it goes – but it does not go very far to remedy economic inequality unless it is accompanied by a big expansion in housing supply. Otherwise, rent control might actually undermine equality by impeding the efforts of non-resident migrants to move to high-wage, high-demand cities. After the jump, I speculate that, despite brave AOC-style rhetoric words about “socialism,” New York’s the Left might not have the stomach for a fight with homeowners, the most powerful political incumbents now reaping the rewards of regional economic inequality.

Consider, first, how rent control benefits insiders at the expense of outsiders. As Krugman noted almost twenty years ago, there is a broad consensus that rent control tends to reduce the quality and quantity of housing. A 2012 IGM survey of economists indicates, that consensus remains unchanged today. Two recent empirical studies from 2014 and 2018 confirm the basic intuition that rent control, taken by itself, makes neighborhoods shabbier and rental housing scarcer.

The inefficiencies of rent control are a familiar story. Rent control’s distributional inequities, however, ought to give Left special reason to demand that rent control be matched with policies that increase the supply of housing. The problem is that rent control benefits exclusively tenants who already have leases in high-demand cities. If one cares about wealth inequality, however one needs to focus on the inability of non-residents to move to the cities with the highest wages As Peter Ganong & Daniel Shoag showed back in 2015, the inability of non-residents to migrate to high-demand cities has slowed the convergence in regional wealth: Coastal haves have walled out flyover have-nots. Moreover, regional inequalities in housing wealth, according to Matthew Rognlie, is responsible for a giant share of overall wealth inequality. Owner-occupants of Brooklyn brownstones and San Francisco painted ladies, even more than Wall Street financiers and Silicon Valley tycoons, are sucking up the wealth created by new technologies and urban agglomeration. Giving incumbent tenants a share of that wealth spreads that wealth around a little bit – but, unless rent control is accompanied by policies that increase housing supply, one is leaving out a major group of economic have-nots. Indeed, one might be exacerbating their plight: According to Stanford economists Rebecca Diamond, Tim McQuade and Franklin Qian, “it appears rent control has actually contributed to the gentrification of San Francisco” by speeding up the conversion of rental units into owner-occupied condos.

New York’s Democrats, however, created no link tying the creation of new housing to the protections for existing tenants. This indifference to housing supply is all the more surprising, because rent control can easily be leveraged to overcome NIMBY opposition to new housing. At the level of the individual building, state law could override local zoning that prevents the construction of new “inclusionary” developments that use market-rate units to finance a state-specified percentage of below-market units. California’s Density Bonus Law provides a good model for such a state override of local zoning. New York’s lawmakers also could have imitated California housing advocates who attempted to buy off NIMBY opposition to new housing with a “CASA Compact” linking caps on rents and anti-eviction rules to the requirement that land in transit-rich neighborhoods be zoned for higher densities.

Why is the Left content to protect the status quo of incumbent renters while leaving local zoning undisturbed? Part of the reason might be anti-market ideology: Tenant advocates are curiously indifferent to the evidence that zoning limits on market-rate housing has adverse effects on the supply of low-income housing. (I have compared such supply-side skepticism to Republicans’ denial of the evidence for climate change). On reflection, however, I speculate that political expediency might be an equally powerful explanation. Incumbency is a powerful motivator, and few entitlements are more powerful motivations for incumbents’ political activity than owner-occupied residential real estate. As Bill Fischel has shown almost two decades ago, the “homevoter” fights hard to preserve the zoning status quo. The stymied efforts of California State Senator Scott Wiener to push through S.B. 50 limiting local exclusion of new housing is evidence that even a grave housing affordability crisis cannot easily defeat an alliance between local officials and homevoters.

Small wonder, then, that New York Democrats chose the better part of valor and played rent control small ball. Sure, they rolled the big commercial real estate interests like REBNY – but they avoided a fight with the even more powerful Brooklyn brownstoners and other NIMBY interests.

Posted by Rick Hills on June 19, 2019 at 01:35 PM | Permalink | Comments (4)

On professional decline (Update)

This Atlantic essay from Arthur C. Brooks, until this week the president of the AEI, is fascinating. I am the age (51) that Brooks was when he overheard the conversation that launched him on this project four years ago.

I was especially interested in the mid-essay discussion of fluid v. crystallized intelligence and its connection to scholarship as opposed to teaching for academics (Brooks spent about seven years as a professor of public policy). Creative and scholarly highs (which rely on fluid intelligence) top-out about 20 years into our careers, because fluid intelligence diminishes in our 30s and 40s. Teaching effectiveness relies on the knowledge gained in the past and our ability to share that knowledge and can last much longer into a career and a life (Brooks uses the example of J.S. Bach, who moved from composing to teaching late in life). This lends a new angle on the discussion over how schools should treat faculty who are effective teachers but not productive scholars--it may be a product of age and time in the academy that, Brooks suggests, schools could use to their advantage.

Brooks offers one point that, given my age and career choice, I take as a source of optimism from the piece: "No matter what mix of intelligence your field requires, you can always endeavor to weight your career away from innovation and toward the strengths that persist, or even increase, later in life."

Update: One academic-specific thought that occurred to me after I hit "publish": One must care about teaching, enjoy teaching, and want to be a good teacher early in a career, during that creative heyday. Because I imagine the transition is easier when teaching is something a prof enjoys and can be proud of--the loss of "prestige" will be felt less.

Posted by Howard Wasserman on June 19, 2019 at 11:35 AM in Culture, Howard Wasserman, Teaching Law | Permalink | Comments (1)

Tuesday, June 18, 2019

A Losing Gamble

Yesterday the Supreme Court reaffirmed the dual sovereignty exception to the Double Jeopardy Clause.  I think that the Court's decision establishing that exception (in 1959) was incorrect, but stare decisis weighed strongly in favor of retaining the rule as the Court did in Gamble v. United States. But I have two critical comments about the Justice Alito's majority opinion.

First, the Court worked very hard to say that Justice Bushrod Washington did not contradict the dual sovereignty exception in his opinion for the Court in Houston v. Moore. I believe that Justice Alito is simply incorrect on this point (as I'll explain in my book about Justice Washington) though the Court is right in saying that some of the subsequent cases mischaracterized Moore in the same way.

Second, the Court ignores the most obvious defense of the dual sovereignty exception. In egregious cvil rights cases (for instance, the state court acquittal of the police officers who beat Rodney King), there is a broad recognition that a federal prosecution for the same conduct may be necessary. The Supreme Court did not consider this point in 1959, as the Civil Rights Movement was still gathering its strength. Developments afterwards strengthened the rationale of the Court's opinion in Bartkus v. Illinois, or at least cut in favor of retaining that holding. 

Posted by Gerard Magliocca on June 18, 2019 at 10:36 PM | Permalink | Comments (2)

AALS Section on Federal Courts: Annual Award for Best Untenured Article on the Law of Federal Jurisdiction

The AALS Section on Federal Courts is pleased to announce the sixth annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school ­and to solicit nominations (including self-nominations) for the prize to be awarded at the 2020 AALS Annual Meeting in Washington, D.C. 
The purpose of the award program is to recognize outstanding scholarship in the field of federal courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2019 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2019), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award.
Nominations (or questions about the award) should be directed to Seth Davis at the University of California, Berkeley School of Law ([email protected]). Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2019. Nominations will be reviewed by a prize committee comprised of Tara Leigh Grove (William & Mary), Gillian Metzger (Columbia), Jim Pfander (Northwestern), Fred Smith (Emory), and Steve Vladeck (Texas), with the result announced at the Federal Courts section program at the 2020 AALS Annual Meeting.

Posted by Howard Wasserman on June 18, 2019 at 09:10 PM in Civil Procedure, Teaching Law | Permalink | Comments (0)

I'm Sorry, but We Need to Stop Apologizing

I'm in Tel Aviv where I am reminded I was born to Chutzpah but I was also born a girl. Here in Israel mansplaining takes on new levels, with some colleagues (who I really love and appreciate, I should emphasize) actually starting sentences to me with "I will do you a favor and help you understand your project - here is what I can tell you and now you will know" (word for word). I am currently doing research on gender differences in negotiation and recognition - the first of the articles is forthcoming - Knowledge Pays: Reversing Information Flows, Columbia Law Review 2020. Another article, Gentlemen Prefer Bonds examines labor market monopsonies and their gendered effects. The next papers will be about exit and voice and innovation - I blogged about it here

Apologizing for one's speech, ideas, presence, advancement, needs and success is a highly gendered quality and I laughed and cried watching Amy Schumer nail it here. A colleague here in Israel told me he has no patience hearing about gender differences in behavior in the workplace, because "then it's not discrimination". I think this is part of what I worry about with #metoo -- that it narrows the policy lens of inequality and disparities at work. I am curious about why behavioral economics hasn't been more helpful in suggesting nudges and predictions in relation to gender relations. I've written a bit about gender differences in whistleblowing and social enforcement but I don't know about a lot of policy thinking with equality efforts, other than in the context of socio-economic disparities and consumer/health/financial.


Posted by Orly Lobel on June 18, 2019 at 03:35 AM | Permalink | Comments (5)

Monday, June 17, 2019

No state action in administering public-access cable channels (Updated)

In Manhattan Community Access Corp. v. Halleck, SCOTUS held that the private non-profit corporation designated by New York City to manage state-required public-access cable channels was not a state actor, so not subject to First Amendment limitations in banning a speaker from the channels. Justice Kavanaugh wrote for the Chief, Thomas, Alito, and Gorsuch; Justice Sotomayor dissented for four.

The opinions seemed to look at different facts triggering different analyses.

The majority applied the public-function cases, which hold that a private actor only performs a public function if it is traditionally and exclusively performed by government; "operation of public access channels on a cable system" has not been exclusively performed by government. The majority rejected a more general description of the function as managing a public forum; merely hosting speech does not create state action. And the city's designation of the corporation to operate the channels was equivalent to granting a license or to regulating the private entity, neither of which is sufficient.

The dissent argued that this was not a case of public regulation of a private entity, but of government delegation of a constitutional obligation to an entity created (with government assistance) for purposes of assuming that obligation. The city retained an interest in transmitting certain content (whatever goes on the public-access channels) over the privately owned cable or in regulating the transmission of content over that cable; Sotomayor analogized the cable to a privately owned billboard where the government contracted to access to space on the billboard in exchange for allowing the private company to place it. Given this property interest and the nature of the space as a forum for speech, the case was controlled not by the regulated-entity cases, but by the cases in which government delegated a constitutional obligation to a private entity. Managing a designated public forum is akin to providing medical care for prisoners--government is not required to designate public forums or imprison people; having done so, it incurs constitutional obligations in how it does so; and private persons assume those responsibilities when government delegates its constitutional responsibilities. The distinction is between a private entity entering the marketplace to do a job and the government hiring a private agent to perform its tasks; in the latter situation,the question is not whether the task is traditional and exclusive, but whether the government had an obligation to perform that function.

The majority attempted to narrow its decision, emphasizing that this was not a case of a delegated constitutional obligation, of the city maintaining a property interest in the channels, or of the city managing the channels itself. But the majority did not address or hint at the case the dissent believed this case to be--the government opening a public forum, then delegating management to a private entity (created for that purpose). It also is worth watching whether some municipalities in New York cease managing the P/A channels and delegate to private entities.

In an event, this decision should, for the moment, take care of people complaining about being banned from Twitter and YouTube. Update: Ken White of Popehat has a Twitter thread on why the arguments in favor of regulating platforms have no support on the Court--all nine Justices accept the starting proposition that a private actor who opens private space for speech does not become a state actor.

Posted by Howard Wasserman on June 17, 2019 at 04:51 PM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (4)

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.   For more information about law faculty hiring generally, check out the section of the AALS's website devoted to this topic at https://teach.aals.org/.  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, VAPS & Fellowships | Permalink | Comments (16)

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.   For more information about law faculty hiring generally, check out the section of the AALS's website devoted to this topic at https://teach.aals.org/.

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, VAPS & Fellowships | 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, VAPS & Fellowships | 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 (2)

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 82 tenure-track hires at U.S. law schools, at 60 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.20190618

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

Hires per FAR.20190618

Hires per FAR Chart.20190618

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.20190618

Hires per school per year may also be of interest:

Hires per School.20190618

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

JD From

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, Hamburg, 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?

64 (about 78%) had a fellowship; 51 (about 63%) had a clerkship; 54 (about 66%) 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.20190618

NYU 14; Columbia 8; Harvard 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.20190618

Doctorate (Ph.D., SJD, JSD, D.Phil.) 41; Masters 9; LL.M. 2; MBA 1; MD 1.

Topics ranged all over the map. For the 41 Doctorates, 8 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?

Year JD.20190618

Zero to Four Years (Graduated 2015-2019) 19; Five to Nine Years (Graduated 2010-2014) 34; 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.20190618

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

Men Women.20190618

Men 50 (61%); women 32 (39%). (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.) 

Gender Percent.20190618

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, 6/13/19, 6/18/19 to reflect one additional hire each time.

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 (4)

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)