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Friday, July 19, 2019

Interview with Andrew Williams from NYU Law on NYU's Lawyering Program

Next up in my series interviewing VAP and fellowship directors is Andrew Williams, who is the Director of the Lawyering Program at New York University School of Law.  An edited transcript of our conversation is below, and I have invited Andy to respond to any questions in the comments.  Thanks, Andy, for participating in this series!

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

Q. Can you tell me your role with the NYU Lawyering Program?

A. I am the director of the program.

Q. I’d love to take the fellowship program chronologically, starting with the application and then moving into the fellowship process itself and then the job market. When does the program start accepting applications?

A. We accept on a rolling basis. Our website job announcement says candidates are strongly encouraged to apply before October 1st. We actually have two different avenues.

First, we accept direct applications through our website, through Interfolio. Our website lays it out: the applications have to have a resume, a transcript, a writing sample, references, a cover letter. A research agenda is suggested but not required. Those applications come in directly, and again, we recommend them coming in before October 1st, but we accept applications after that depending on our hiring needs and how our interview process is going.

Second, we interview through AALS. We reach out to some people for applications based on FAR forms, so we go down to AALS every fall and do interviews there as well.
Those are the two ways that folks get in the door.

Q. I’d love to follow up on the AALS path. Are these candidates who are also simultaneously applying for entry-level positions? Or are these candidates who were in the AALS process solely or perhaps primarily to apply for a fellowship program?

A. Both. And I would say historically, we would often be interviewing people at AALS who were primarily not applying to other fellowships, but they weren't necessarily ready for the full teaching market yet.

Q. Do you reach out to them? Have they reached out to you? Obviously they applied through AALS, but have they also reached out to you directly?

A. Again, both. We go through the FAR forms and reach out to folks who may not know about our program and encourage them to submit materials, and then we review those materials and do interviews at AALS. Some applicants know about us and apply but through the AALS process. More and more, folks are aware of fellowships and the various opportunities, so I would say the number of people that we interview that are primarily looking for tenure-track positions at AALS has probably decreased. But we're still interviewing people who are applying for a range of positions.

Q. How are the interviews structured? Are there first round interviews? Second round interviews?

A. If we interview someone at AALS, that is a first round interview. It tends to be more informal. We're usually not doing a “summarize your job talk” interview. We're asking them why they're interested in the program, we're talking about what we do in Lawyering, we're asking them about their practice experience and teaching experience, and we ask questions about their scholarly work.

Then some of those applications from AALS join the direct applications, and a committee reviews all of those materials. The committee decides who's coming onto campus for an on-campus interview.

Our on-campus interviews typically last half of a day, and it's a series of interviews with two or three people in each interview. The interviewers are made up of the hiring committee, current Lawyering faculty, and students. Those interviews sort of take on the personality of the interviewers. Some interviews are more about scholarship, some are about experience teaching, and some are about practice. It depends on the makeup of any one of those particular interviews. But over the course of the time, candidates will need to be able to speak to all of those things.

Q. There's not a job talk as part of that, is there?

A. Not a formal job talk, no. It’s a half-day of short interviews. So we're generally looking for three things. Teaching experience and or potential as a teacher, which often means can you speak to working with junior attorneys or other mentoring experiences or actual teaching? We're looking at practice. Can you speak thoughtfully about practice? Do you have some rich practice experience? And scholarship, or potential for using this experience to build to something new, either specifically academic scholarship or it could be something else. And I can talk more about that later.

And so if a person comes in for a series of interviews in the morning, one of those interviews will be someone asking a series of questions about a scholarly piece. That's going to feel more like a job talk, but it's not going to be a formal job talk.

Q. Okay. Great. Let's take each one of those three things that you talked about one at a time, starting with teaching. What are you looking for on the teaching side? How are you gauging somebody's teaching ability?

A. I mean, that's the hardest of the three, frankly. But we're asking questions about work in a teaching/supervisory capacity. And so some folks do have some experience teaching, and that comes in a range of forms. Some people can really speak to the type of feedback or mentorship they gave in practice to more junior attorneys. Others can speak to the types of things that interest them about teaching and can articulate what they want to do but haven't had the opportunity to do before. So we ask questions in that world, and there's no one thing that we're looking for. There's a wide range of answers that people can give.

Q. How about on the practice side? How much practice experience are you looking for? I'm sure it varies, but in general.

A. Historically, we have a minimum of two years plus clerkship or three years. Our course is a simulation-based course. It's pretty teaching intensive, and it really is about thinking about practice and teaching the students to think about what it means to be a lawyer. And so we want to hire people who can talk about not just how do you write a brief, but also why does one write a brief this way, and what are you trying to achieve and what are your client's goals? We want someone who can talk about working with clients, and who can talk about those dynamics.

And we want someone who can speak to what it was like, what the pros and cons of being a lawyer were, what were the great things and the hard things? Someone who really shows some self-reflection about practice experience. Not everyone we hire will have done all of the things that we teach, but we want people who can really be thoughtful about what it means to actually be a lawyer.

Q. On the scholarly side, if we were to step back and think about your successful candidates, the candidates who make it into the Lawyering Program, how much scholarship do they tend to have before they start in the Lawyering Program? Do they have a published paper, more than published paper, just a draft? What's the norm, if there is one?

A. I don't know that there is a norm. If you can tell, we try to look pretty holistically at our candidates. Sometimes it has to do with where are they coming from and what is it that they want to do. And so it really is a wide range. We want folks who come in to be able to articulate what their interest is and what they're going to do with their time here. And often, that means, “I wrote a piece while in practice and I'm working on this other piece, and I've got this research agenda.” Sometimes it means, “I really just started thinking about what it means to do scholarship relatively recently. I want to do clinical teaching, and I've done some strong practice-oriented writing, but law review articles are new to me.”

Certainly, for any of those three things that we're looking at, the more the person can put forward, the better they're going to be as a candidate. But we've hired folks with a number of published pieces of scholarship, and we've hired people with no scholarship at all coming in.

Q. And do you have a preference for candidates with Ph.Ds.? How do you think about Ph.Ds. in the hiring process?

A. Again, it's going to be part of a package, right? Does the person have a Ph.D. but also have pretty rich practice experience? If they've been able to do both, that's a really strong candidate. But if they have a Ph.D. but they don't have any practice experience, then that's not someone that we're going to be in a position to hire. It's a good thing for a candidate to have, and we've hired plenty of people with Ph.D.s, but we've certainly hired significantly more without them.

Q. Does the program have any preferences for candidates in particular curricular areas? I've been a hiring chair for a long time. People often say that candidates in the corporate area or the criminal law area are in demand on the entry-level market. Do you take that into account when you're selecting candidates?

A. No. We do like to have a faculty with a range of practice experiences. We work as a faculty a lot. It's a very collegial faculty generally, but we also work together on curricular development. And so the more different areas of practice experience we have, the better. But I'm not sure I would say that necessarily plays a role in why any particular candidate gets hired.

Q. Okay. And do you make any special efforts to hire candidates from diverse backgrounds?

A. Absolutely.

Q. In what way?

A. We try to do as much outreach as we can. We reach out through listservs and organizations and alumni organizations. One of the reasons that we go through FAR forms and interview at AALS is to find candidates that might not know about us as a program, and who come from a wide range of backgrounds. Those are probably the two primary ways, but it’s definitely a priority for us.

Q. As I talk about this interview series on the blogs, one of the questions I keep getting is from candidates who say, "What if I don't have the traditional markers of being a law professor? Maybe I didn't go to Harvard, Yale, NYU, et cetera. I didn't do an elite clerkship. How can I stand out in the application process?" What advice would you have for those candidates?

A. We have absolutely hired from a range of experiences and a range of law schools. We're certainly looking for people who bring something, who are going to bring a richness to our program. And so if someone has some really interesting ideas and has done some really interesting practice, that is going to weigh really heavily for us. It’s not the most helpful advice, but I want to say that the way you stand out is by standing out, by having something about you that is interesting and compelling. That could come from any number of places. We certainly have hired candidates who haven't necessarily followed the most traditional path to academia, and we've then placed those candidates well on the other side. But to try to articulate what's the one thing or two things someone can do, that's a little bit harder.

Q. So we've talked about a variety of criteria that you and your committee use. Is there anything else? Any other criteria that candidates should keep in mind as they're submitting an application?

A. I think narrative matters. The committee wants a strong sense of who this person is, why this is what they want to do, and where they want to go from here, and a story that makes sense. It's a temporary position. It's a position that's practice-focused and teaching-intensive. And so someone who is able to articulate, this is what I've done and this is where I'm headed, and this is how this program really fits in that journey for me. I think that matters to our committee.

Q. Let's go back to some of the nuts and bolts. How many applications do you typically receive and how many candidates do you typically bring to campus to interview?

A. After reviewing the FAR forms and receiving materials for AALS, we usually end up doing initial interviews with about 8-10 people there. And then we receive, generally, 100-150 direct applications each year. We ultimately interview probably around 15 people on campus each year.

Q. How many fellowships are available total, and how many positions are available each year?

A. So it varies. We have 15 positions, 15 members of Lawyering faculty. And they stay two to three years, with a maximum of three years. So we hire roughly five every year. But it varies. We’ve had years where we've hired two and years where we've hired seven.

Q. And by when in the calendar year do you typically fill the positions? When would you say you're done?

A. We try to be done at the start of the spring semester. The reality is that, again, because we're a transitional program, we try to be flexible with our faculty as things come up. So if I have someone who is in the second year of the program and it's February and the perfect clinical job opens up, then we may end up with an opening that we didn't expect.
Typically we try to be finished hiring at the start of the spring, but we don't always get there.

Q. When you said that the fellowship lasts two to three years, what does that depend on? Is that at the fellow's discretion?

A. I've never had to make it not at the fellow's discretion. It's a series of up to three one-year contracts. I have not yet had to be in the position to not offer a contract for another year, so it has been at the fellow's discretion.

Q. Are you comfortable sharing how much the fellows are paid?

A. It’s $66,000 in the first year. And each renewal historically includes an annual merit increase, so a small percentage increase each year after the first full year.

Q. And do they receive health benefits?

A. Yes. They are eligible for the standard benefits of the law school, including health benefits.

Q. How about access to university or subsidized housing?

A. No. Occasionally we get lucky and an apartment opens up, but it's certainly not a guaranteed.

Q. How about travel funding or other professional development funding?

A. Yes. Conference funding. We try to fund as many conferences as we can.

Q. Is there a standard budget that they have for that?

A. Yes and no. The first conference for everyone is no questions. And then after that we look at how our collective conference budget is working and whether someone is presenting at the conference. That said, ultimately I think we are able to accommodate all conference requests. We try to make sure folks can go to any conferences they need to.

Q. And are they allowed to hire research assistants?

A. Yes. They are encouraged to.

Q. Obviously we know that going on the market is expensive. Are they reimbursed for AALS-related expenses?

A. Absolutely. AALS is treated like a conference. So it would be like going to any other conference.

Q. Okay. Now that was a lot of the nuts and bolts. Now let's turn to how to make the most of a fellowship year. How often do the fellows themselves get together, and in what capacity? Do they have their own workshop series or something like that?

A. So I'll start in June, because the position starts June 1st every year. We do a couple of weeks of introduction and curricular training and other workshops. The first week would be just the new people, and we go through the curriculum, and the second week, adding in the returning people. And then throughout the year, starting in mid-August and then as we approach each simulation throughout the year, we have Lawyering faculty meetings to talk about issues in the classroom, pedagogy, curricular decisions for the next unit, walking through it, different approaches different people have taken in the past, et cetera.

So that's sort of on the teaching side. During our June workshops, we also have sessions on making the most of your time in Lawyering: producing scholarship, getting to publication, and navigating the job market process. We also have a weekly Lawyering Scholarship Colloquium that happens all year. We invite other fellows from around the law school to participate in that as well, and the scholarship colloquium can be anything from “Hi, I'm brand new and I've got three ideas that I've got in abstract form and I want to talk them through with some people” to “I've got a job talk next week.” Most sessions fall somewhere in between, with a fellow circulating a draft or detailed outline before the session and getting detailed feedback during the session.

We also all work together in a Lawyering suite. It's a collaborative and collegial environment, so there's a lot of interaction. Stopping by each other's offices with questions and ideas for class or “I'm working on this paper, can I draw something out on the whiteboard and you let me know what you're thinking?”

Q. Do the other fellows from NYU participate in that scholarly workshop?

A. They do.

Q. Do the fellows participate in the broader intellectual life of the school? For example, NYU's broader faculty workshop?

A. Yes. So everything that is happening at the law school is open to Lawyering faculty, as with anywhere else. Informal faculty lunches and faculty workshops happen every week, and Lawyering faculty members are encouraged to attend. And, for example, the criminal law community here has the Goldstock Seminar every Tuesday and the Hoffinger Criminal Justice colloquium, and our faculty members are always really well integrated into that process.
How many different activities our folks are involved with in terms of the intellectual life of the law school sort of depends on how active that particular part of the life of the law school is. But everything is available, and it’s a very active place.

Q. Who actually supervises the fellows? Are you their direct supervisor? Is there a committee, someone else?

A. I am.

Q. Are they matched with a mentor or otherwise guided towards faculty in their area of interest? And if so, how? How does that matching happen?

A. There's not a formal mentorship. The guiding happens in a few ways, either through me and making connections with people in their practice area, or the practice area group itself if it's a particularly active one, or it could be a member of our hiring committee connecting them up with someone that they know. So we try to find different ways to connect people up to people here who will be helpful contacts for them to develop organic relationships with, but how that connection gets made sort of varies from person to person on both sides.

Q. And are they also given assistance making connections outside of the law school with faculty in their area?

A. For people who were not students at NYU Law, of course they are able to go back and reach out to the people from their former institutions. We also have an active network of former Lawyering faculty. I try to bring former Lawyering faculty in for our general workshops or during the year or set up opportunities at conferences.

Q. Okay. And how about assistance with their specific papers? You talked about the workshops where they can present their papers. Do they have people who will sit down, read their drafts, give them comments?

A. Yeah. And I think a lot of that does come through relationships developed here over time. Some of it is through these connections that we talked about, whether with former Lawyering folks or people here on the faculty. And then also our Academic Careers Program here at the law school has a number of different events that vary every year, including at least two opportunities each year specifically dedicated to being paired with a faculty member for detailed draft feedback.

Q. Let's transition over to the teaching side. You mention that they teach in the legal writing program. Tell me about those teaching responsibilities. How many students do they have? How many hours does that class meet?

A. It’s a yearlong course. It's 28 students, the same 28 students all year. And it's built around a series of simulations. So it starts with drafting an argument, and then interviewing a witness and drafting an affidavit, and then interviewing a client, doing the research memo for the client and counseling that client, often with a small mediation component. In the spring there is a transactional negotiation and then the traditional brief and oral argument. So there are a lot of writing components to it but also a number of non-writing components, other experiential components.

The course meets typically three times a week. There are certain times of year when we have, for example, student conferences on the writing, and we provide detailed feedback trying to get the students to reflect on their writing choices on both initial and revised submissions. So, especially in the fall, there may be conferences stacked up at different times of the day as well. We teach from essentially mid-August to just before Thanksgiving, and then we teach from mid-January until mid-April. There's no final exam. It's a for-credit class, not for a grade. And so when our work is done for the semester, we're done.
But certainly at the beginning of the fall, it's a pretty teaching intensive course, which is why we try to spend a lot of time thinking and talking about teaching.

Q. And are they the ones coming up with the assignments or the curriculum for those classes? Or are there other resources that they draw on for that?

A. It's a mix. We have a pretty hefty set of materials, both in the global sense of “These are the large simulations” and also “Here are some ideas of what you might want to do in your classes leading up to the simulations.” It is a course that you could come in and teach entirely from pre-existing materials.

That said, we have a lot of flexibility for coming up with new approaches and new ideas. It could be someone coming to one of our faculty meetings and saying, "I really don't love this third class that a lot of us do on how to counsel a client, and I've come up with this new idea.” Or it could be like today we were discussing as a group how to revamp our negotiation exercise and maybe come up with something new. So there is an expectation of civic participation, but also I try not to put the expectation on our folks that they're going to have to be doing a lot of curricular development on their own. I want them to be a part of the conversation, but I don't want that to become the focus of their time. Between the scholarship and the teaching, there are enough other responsibilities.

Q. Yeah. Do people ever sit in on their classes and give them feedback on their teaching?

A. I do. And we do informal, prose-based feedback from students in the fall that's not really meant to be a course evaluation, but more a series of questions that professor wants to ask their student about the semester. I go over those with our folks at the end of the fall, and then at the spring, at the end of our actual formal course evaluations, I sit down with folks and talk through those evaluations as well. And unless our schedules conflict, I try to sit in and observe the teaching, usually folks who are on the market first, so that I can get a last snapshot of their teaching before they go on the market, and then new folks, and then folks in the middle.

Q. And are they ever allowed to teach a class outside of the legal writing program? A course, for example, in their doctrinal area of specialty?

A. It happens. It's not a guarantee. But a range of opportunities along those lines have occurred, from supervising a team of students within a clinic or teaching a unit in a clinical course, to co-teaching an externship with a member of our faculty, to co-teaching a doctrinal law course with a member of the faculty. So yes, there are a range of opportunities that have come up, and as with any new opportunity, I always try to stay open to how we can make those things work, but there's not a formal process in play for making it happen.

Q. Do you have a sense of the percentage of time that they should spend, or they tend to spend on their scholarship versus their teaching versus any other responsibilities that they have?

A. I don't. And in part because I think it varies a great deal. It varies a great deal based on the interest of the person. It varies from year to year. It varies based on time of year. We have some people who every Tuesday is the day that they really focus on scholarship all year long, and other folks who make it a point to do it a little bit every day, and some folks who say all I'm going to do this summer and over winter break is write, but during the heart of the semester I'm going to focus on teaching. It does vary from year to year as well, where they are in the program. So yeah, it's a tough thing to figure out how to average out. Over the course of the year, however, Lawyering faculty have almost 4 months in the summer and another 7-8 weeks between semesters when they aren’t teaching at all; so that gives folks a lot of independent time as well.

Q. I've noticed a couple times you've talked about clinical faculty teaching the program. What's the breakdown between Lawyering professors who are interested in the doctrinal path and those interested in the clinical path?

A. So historically, I would say probably 40% doctrinal, 40% clinical, and 20% a wide range of other choices, which might mean shifting from being a public defender to doing criminal justice policy, or going into working in law school administration or legal research and writing or going back to practice. So it's probably 40, 40, 20, sounds about right.

Q. We’ve gone through a lot of the details of the program. Let's step back for a moment. What do you think makes the NYU Lawyering Program stand out from other VAPs or fellowship programs? Imagine you were talking to a candidate with lots of fellowship options, how would you try to sell the Lawyering Program?

A. Our community is really outstanding. I think we've done a really nice job of hiring over the years. The result of that is, I think, it's a really strong group of people, and it's a pretty large group of people because we have 15 folks at any time who are here full-time. And they really are an incredible resource for each other. Again, whether that's an issue in the classroom or a thought about teaching or scholarship or the market or how do I pitch this piece to journals, or whatever it is. Once folks have left to go on to tenure-track positions and go elsewhere, they usually miss the colleagues the most. I think is one of the biggest strengths that we have.

I think the second is really teaching. For folks who really are focused on being in a place where there's a conversation about what actually works in a classroom and how do we teach, and how do we think about pedagogy, and really want that experience of doing a lot of teaching in the classroom, I think it's a really great opportunity.

Q. And do you have any other advice for fellows when it comes to making the most of their time in a fellowship or a VAP? What have you seen the people who have been really successful on the entry-level market do?

A. I mean there's just so many ... and I know I keep coming back to this, but there's just so many different journeys. Obviously putting in the time and doing the scholarship matters a lot. Being engaged and having an entrepreneurial spirit and really doing the outreach to get to know people in your area, and frankly people outside of your area, to just talk about ideas for scholarship helps a great deal. But other than that, I really do think there are a lot of ways to do this well and do it in an interesting way. And we've placed people who have taken a lot of different approaches. And it's been really interesting, frankly, to see how that plays out, that there isn't necessarily only one right or one best way.

Q. That provides a good transition over to the job market process. What type of mentoring do the fellows receive related to the hiring process?

A. I think it's drawn from the sources that we've talked about. It's going to be a mix of people here and at the institution you came from if you were somewhere before, the Academic Careers Program, current faculty, and Lawyering alum. ACP pairs people going on the market with people who were recently on the market. During our Lawyering workshops this last week, we brought in former Lawyering folks, some who have been on hiring committees or are on hiring committees at different schools to talk about their experiences and the process and what they've learned since then. We send candidate materials out to our former Lawyering faculty. So it's going to be drawing from all of those different resources.

Q. And are they given an opportunity to moot their job talk? You talked about an opportunity within the fellows workshop. How about in front of faculty or others?

A. Absolutely. And that's all arranged through our academic careers program. ACP puts on a Job Camp in early fall where Lawyering fellows going on the market that year do a mock job talk, they have faculty member specifically assigned to them to moot the job talk and give them feedback, and often there are other fellows and sometimes other faculty in the room participating as well.

Q. Okay. And does that include opportunities to do moot mock screening interviews as well?

A. Yes, ACP arranges mock screening interviews with a faculty member as part of Job Camp.

Q. Do they receive feedback on their application materials, on their FAR form, etc.?

A. Absolutely.

Q. Yeah. Do you happen to know the percentage of Lawyering fellows, let's say over the last 10 years, who have ended up in entry-level tenure track positions?

A. We’ve been lucky, and as the market has changed we’ve continued to be able to place well. Almost all, and maybe all, of our people that have gone on the market have ended up in either tenure-track or long-term contract positions, (given that a particular school may not have, say, tenure-track clinical positions.) For example, in 2016 we hired an unusually large group. After two years, two took teaching positions and a third found a great appellate practice opportunity. This year, three more went on the market and took full-time faculty positions while one chose to apply for (and received) a more specialized fellowship. Every year looks a little bit different because we encourage people to find the right opportunities for them, but looking back over the 50 or so people who have come through over last ten years, we’ve placed roughly 20 doctrinal faculty, 20 clinical faculty, and then a handful of people who have chosen to continue on with skills positions, move into law school administration, or return to practice. Whatever path they choose, we’ve been very fortunate that our people are able to use their time here to transition into the next step they want.

Q. I would love, if you're willing, to ask a couple of questions related more broadly to the rise of VAPs and fellowship. I don't know if you saw the data from this past hiring year, but 96% of people hired for entry level doctrinal positions have either a VAP, a fellowship, a Ph.D. What do you think are the benefits of this process, and what do you think are the costs?

A. It's interesting. I don't know if I've thought of it in terms of benefits and costs as much as the fact of watching it happen. I think there's a real benefit to having some space and time to work on scholarship and on teaching. The legal profession, when done right, and especially because we're hiring people from practice, takes an incredible amount of work. I mean, to do the job well, it can be consuming. And so having, at least on this fellowship side, having these transitional programs makes a lot of sense to me for people to reflect on and reframe how they're thinking about things.

I feel like the Ph.D. question is a different question. One of the really interesting things about legal hiring right now is that law schools seem to be hiring for a range of positions that require a range of backgrounds and skillsets. And so I think it makes sense to have people who are taking a number of different paths and taking the time to develop expertise in a range of areas. So you would have clinical fellowships, Lawyering, Ph.Ds., a combination, et cetera. It makes sense to me.

Q. Have you heard the criticism that VAPs and fellows may get too much help on their scholarship from people on the faculty wherever they're doing their VAP or fellowship, and therefore it's hard for hiring committees to know how much of the work and ideas come from the VAPs or fellows themselves?

A. I have not heard that before.

Q. Okay. So it's one of the things you often hear when you're on the hiring side, is people wondering, essentially, how much of these ideas really come from the fellow, and how much of this is being fed to them from the faculty at the school where they are? Do you have a sense on that?

A. I mean, I may be speaking naively here, but I don't know. I would be surprised. I guess I can put it this way. When we're interviewing folks, whether directly or through AALS, we tend to see people who don't just have interesting ideas, but who are also really invested in those ideas. They're pursuing these scholarly interests that they've often had for quite some time and have been working on. And the pieces of scholarship that those ideas develop into, that become their published pieces and the things they take on the market, tend to follow ... obviously there are tweaks and developments and people change course, but they tend to follow who we thought they were. In a good way. So I don't know. I would say that has not been my experience.

Q. Last question for you. Given that life is zero sum in so many ways, obviously time spent in a fellowship is not spent in, for example, in practice. What do you think about that trade off, especially given that we're in the business of educating lawyers?

A. I mean, because I am specifically in a program that is all about thinking about practice, and we really hire for folks who we feel like can be thoughtful about practice … my bias is toward hiring people who can be thoughtful about practice in order to educate people on how to be lawyers. That said, as is probably not surprising from the rest of this conversation, I do think there are any number of approaches. I don't think it's a terrible trade-off that some folks are going to have more practice than others, and people are going to approach legal education and legal theory and legal practice in different ways. I think that is part of what makes a law school really interesting, the mix of ways of approaching the ideas, some that are more practice-oriented and some that are more theory-oriented. I think that's part of the genius of law school. I think one of the real benefits of the Lawyering program is in encouraging people to really emphasize pedagogy and becoming thoughtful, skilled teachers as well as understand their own scholarship and the scholarly community generally. So that when the Lawyering faculty members go on to permanent academic positions they are prepared to incorporate both.

Q. Anything else that you want people to know about the NYU Lawyering Program or about the state of law faculty hiring more generally?

A. I don't think so, but anyone thinking about applying or who wants to know more should feel free to reach out to me. I’m always happy to answer any questions that come up.

Q. Okay, that's great. Thanks, Andy. Take care.

Posted by Jessica Erickson on July 19, 2019 at 06:39 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Thursday, July 18, 2019

Remembering John Gardner

The following guest post is by Eric Miller (Loyola-LA)
Many of you will have heard the sad news that John Gardner died on July 11, 2019. John was the Senior Research Fellow of All Souls College, Oxford, and former Professor of Jurisprudence at Oxford, one of the major positions in legal philosophy in the Anglophone world. He was a kind, generous, brilliant, fun person, and influenced, directly and through his writings, a generation of legal scholars.
John and I lived on the same street in Glasgow, and went to the same school (Glasgow Academy), and he was my thesis supervisor when I went to Oxford. He stood on the side of social justice in ways big and small, and strove to include and support the people in his orbit. For example, I got the impression during our time together at Brasenose that he was was working behind the scenes to transform the college's deserved reputation as a bit of an upper-class sporty frat house into a place where students of all backgrounds could flourish. He taught a wonderful jurisprudence seminar with Anthony Honoré, and the two of them together produced an amazingly kind and supportive intellectual environment for those lucky enough to attend. His work ranged from the most general of analytic jurisprudence into the specific duties of police officers, and he covered topics in tort law, criminal, criminal procedure, constitutional law, discrimination law, and beyond. 
We didn't see much of each other after I left Oxford except for a brief sabbatical of mine in 2012. I am sure there are many others on this listserve who were closer to him academically and personally. But I have continued to be greatly indebted to his work and his example as a person and a professor, as I am sure have many others, and I wanted to make sure that his many friends and admirers had a chance to celebrate his life. 

Posted by Howard Wasserman on July 18, 2019 at 06:23 PM in Teaching Law | Permalink | Comments (0)

Wednesday, July 17, 2019

CFP: The Resiliance of International Law


International Law Weekend 2019: The Resilience of International Law


International Law Weekend 2019 (ILW 2019) calls on scholars and practitioners to address the resilience of international law. The conference will explore international law’s capacity to preserve the rule of law, promote both peace and justice, and maintain stability in the face of growing fault lines. The world is changing. ILW 2019 seeks to answer whether its theme—The Resilience of International Law—is a question or an affirmation.

The ILW Organizing Committee invites the submission of abstracts relating to “The Resilience of International Law.” We will select several abstracts for presentation at ILW 2019 as part of a panel of new professionals. The abstracts may be based upon ongoing work. While all submissions are welcome, preference will be given to papers not already published. Eligibility is restricted to applicants working in the field of international law for five years or less. Applicants should be ABILA members at the time of their presentation. (To join ABILA, please visit: https://www.ila-americanbranch.org/accounts/reg_plans/.)

Applicants must submit the following in a single PDF document:
(1) a 500 word abstract of their paper;
(2) a cover letter describing their professional development and a statement explaining how their submission fits with the conference theme; and
(3) a curriculum vitae.

The submission deadline is July 29, 2019. Submissions should be sent to [email protected] with the subject line “Emerging Voices - ILW 2019.”

Questions may also be submitted to: [email protected]

Submissions will be competitively selected in a peer review process. Applicants will be notified by August 30, 2019.

ILW 2019 is scheduled for October 10-12, 2019 in New York City and will be held at Fordham Law School. Accepted applicants will be invited to present their papers at the Emerging Voices panel, which will be chaired by a senior scholar or practitioner. Accepted applicants will be required to pay for their own travel and lodging. A panel member who is only attending their individual panel is not required to register for the conference or pay the registration fee. If they plan to attend other panels, we do ask that they register for the conference and pay the fee.

Posted by Howard Wasserman on July 17, 2019 at 06:23 PM in Teaching Law | Permalink

My civil rights course, in one case

This opinion by Judge Easterbrook is a fantastic encapsulation of most of my civil rights course.

Dad loses custody of kids because of state court decision, made in part on testimony of court-appointed psychologist; court strips custody, limits visitation to supervision-only, and twice declines to rescind supervision-only. Dad sues psychologist in her "official capacity," alleging that state child-custody law violates the First and Fourteenth Amendments.

Spot the many, many doctrinal problems with this lawsuit. I think I may use this as one grand, theory-of-everything hypo at the end of class.

(I especially like that, in rejecting plaintiff's argument that he has sued the state through an official capacity suit, Easterbrook talks about Will and states not being § 1983 "persons," rather than the Eleventh Amendment. Courts consistently get this wrong in § 1983 cases).

Posted by Howard Wasserman on July 17, 2019 at 06:14 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, July 16, 2019

Remembering Justice Stevens

Justice John Paul Stevens died Tuesday, at age 99. He is a big deal around Northwestern Law, where I went to school. The award for top GPA is named for him and his official Court portrait was on display in the library until his retirement. And in Chicago, where he was at Wrigley Field for Babe Ruth's "called shot" in 1932 and got to see the Cubs finally win the World Series in 2016.

On an instant reaction, how will Stevens be remembered as a Justice? He is the third-longest serving Justice, just shy of 35 years, trailing Douglas and Field. The easy political story is that he was a Republican appointee who became a leading liberal light on the Court, following in the shoes of Brennan and Blackmun, but on a more sharply divided Court. For purposes of one of my current projects, he spent 16 Terms as senior-most Associate Justice in frequent disagreement with the Chief, one of the longer such periods in the Court's history; this gave him the assignment power in divided cases in which a swing Justice (usually O'Connor and/or Kennedy) switched.

I wonder what opinions will define his legacy on the Court. We do not associate him with particular doctrines (as with Scalia) or particular opinions (as with Blackmun and Roe). He stuck us with Pacifica. He famously dissented in the flag-burning cases, "flipping" positions with Scalia, and in Citizens United, where the majority opinion outraged him. He wrote Reno v. ACLU, which, while not rhetorically memorable, was a more significant decision in allowing the internet to thrive as an open medium. He wrote Claiborne Hardware, which may gain new relevance in challenges to anti-BDS laws and attempts to use civil liability against Black Lives Matters protesters.

I did a Westlaw search for his most-cited opinions. He wrote Apprendi, the first move in the push to returning control over sentencing to juries. He wrote the opinion establishing Chevron deference, a doctrine in danger of overruling by the current Court, but not associated with him by name. He wrote the opinion in Sony v. Universal, which held that VCRs did not infringe copyrights. He wrote Clinton v. Jones for a unanimous Court, which had significant political consequences, but will not stick to him. And while not an opinion for the Court, his "ask me later" concurrence in Asahi means the Court did not, and still has not, solved the stream-of-commerce v. stream-of-commerce-plus problem for personal jurisdiction.

Update: In the realm of opinions that angered people, Linda Greenhouse's Times obit points out that Stevens wrote the majority in Kelo. She also suggests that Stevens' long period as senior-associate will be key to his legacy, elevating him from relative obscurity into a role that he enjoyed.

Posted by Howard Wasserman on July 16, 2019 at 11:40 PM in Howard Wasserman, Law and Politics | Permalink | Comments (9)

Hiring Committees 2019-2020

Please share in the comments the following information related to the 2019-2020 law school faculty hiring season:

(a) your school;
(b) the chair of your hiring committee (please note if you have different chairs for entry level and lateral candidates--we hope that this information will be useful for both entry level and lateral candidates);
(c) other members of your hiring committee (again, please note if there is a distinction between entry level and lateral committees); and
(d) any particular subject areas in which your school is looking to hire.

Additionally, if you would like to share the following information, candidates might find it helpful to know:

(e) your committee's feeling about packets/individualized expressions of interest (affirmatively want to receive them, affirmatively don't want to receive them, or don't care one way or the other); 
(f) your committee's preferred way to be contacted (email, snail-mail, or phone); 
(g) the website, if any, that candidates should use to obtain information about the position or to apply;
(h) the number of available faculty positions at your school; and
(i) whether you are interested in hiring entry-level candidates, lateral candidates, or both.

I will gather all this information in a downloadable, sortable spreadsheet. (Click on that link to access the spreadsheet and download it; you can also scroll through the embedded version below.)

If you would like to reach me for some reason (e.g., you would prefer not to post your committee information in the comments but would rather email me directly), my email address is sarah dot lawsky (at) law dot northwestern dot edu.

Remember, you cannot edit the spreadsheet directly. The only way to add something to the spreadsheet is to put the information in the comments or email me directly, and I will edit the spreadsheet.

Posted by Sarah Lawsky on July 16, 2019 at 07:41 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (11)

Sponsored Post: Reproductive Rights and Justice Stories

The following guest post is by Melissa Murray (NYU School of Law), Katherine Shaw (Cardozo), and Reva B. Siegel (Yale) and is sponsored by West Academic.

Reproductive Rights and Justice Stories (Foundation Press® 2019) examines the field of reproductive rights and justice, with attention to the dynamics of legal change inside and outside of courts.

Where reproductive rights are often defined as negative liberties that protect individuals against government coercion, reproductive justice thinks holistically about the conditions in which individuals make decisions about having and not having children. The field examines how relations of race, class, language, citizenship, sexuality, and gender shape decisions about reproduction and intimate life, inside and outside of law—in the organization of communities, markets, health care, religion, and other structures of social life. Pursuit of reproductive justice is not limited to greater access to contraception and abortion, but instead includes conflicts over sterilization, pregnancy, and assisted reproductive technologies. Critically, reproductive justice cannot be attained in courts alone, but instead requires action across many bodies of law, and in many social domains, to redress inequalities in intimate life.

The stories collected in this book present legal change broadly to capture the multiple social contexts in which these conflicts occur. This method for understanding constitutional change—what one of us has termed “democratic constitutionalism”—recognizes that debate over constitutional meaning unfolds inside and outside of courts and inside and outside of the state. Obviously, courts matter. But so do other actors and institutions—from grassroots organizations, NGOs, and political parties to state and federal legislatures to administrative agencies and bureaucrats to interested individuals.

Many chapters shed new light on cases that are very much part of the constitutional law canon—Griswold v. Connecticut, Roe v. Wade, Planned Parenthood v. Casey, Geduldig v. Aiello. Others introduce the reader to less well-known cases from state and lower federal courts that illuminate paths not taken in constitutional law. All of the chapters contain lessons for contemporary controversies. (Indeed, a recent symposium, hosted by the Take Care blog, featured a number of response essays tying the chapters to developments in the law and politics of reproductive rights and justice.).

Contributing authors include: Melissa Murray, Neil Siegel, Linda Greenhouse, Reva Siegel, Deborah Dinner, Maya Manian, Khiara Bridges, Serena Mayeri, Priscilla Ocen, Sam Bagenstos, Kate Shaw, Cary Franklin, and Doug NeJaime.

Posted by Howard Wasserman on July 16, 2019 at 05:21 PM in Sponsored Announcements, Teaching Law | Permalink | Comments (0)

AALS on Entry Level Hiring

Update, 7/16/19: I have been directly in touch with AALS, and they were extremely willing to update the site. I am going to leave this post up, because I'm generally opposed to putting things down the memory hole, but I will close comments.

I have long hoped that the AALS would report on entry-level hiring. After all, they are the ones who collect all the information. They are well positioned to do true statistical analysis on the candidate pool and the successful candidates. (They used to do so but stopped for some reason and scrubbed the information from the website, though of course it's available through the Wayback Machine.)

So I was happy to see that they have created a new website, which will, they promise, "mak[e] the process of obtaining a teaching job as transparent as possible, and provid[e] as much information to potential candidates as we can."

Imagine my surprise when I clicked through to the website and found, not statistical analysis based on actual information to which they have direct access, but rather the data and graphs that I, Sarah Lawsky, have been posting on this blog for the past ten years. My work is acknowledged through a single asterisk, which leads to this text at the bottom of the page: These data, which are self-reported by recently hired law faculty or, in some cases, their schools, was collected by PrawfsBlawg and provided as a downloadable spreadsheet. PrawfsBlawg data include “information for tenure-track, clinical, or legal writing full-time entry level hires.” (There is a link to the spreadsheet through the words "downloadable spreadsheet," but there's no formatting to indicate it's a link.)

To be clear: I want people to use this data. That's why I make it downloadable. But it would be nice if AALS would name me, because PrawfsBlawg does not actually collect anything: it's a website. And it would be nice if they link to the website, as well as to the data. It would have been really nice if they had reached out first to talk to me about the data, using it, and perhaps even collaborating, but I guess I understand why they didn't(?).

I've sent an email to AALS, and I hope they make changes to their webpage. More importantly, I really, really hope that instead of just taking self-reported hiring information, they use their vast store of information and give us accurate information about the pool of potential hires, the success rates of various groups, and so forth. They are uniquely positioned to do so.

Posted by Sarah Lawsky on July 16, 2019 at 12:17 PM in Entry Level Hiring Report | Permalink | Comments (6)

Interdisciplinary Junior Prawf-ing

Thanks to Paul, Howard, and the rest of the folks at Prawfs for having me; I’ve been reading the blog since I was in law school and it’s both fun and slightly surreal to be writing here.

I’m a legal anthropologist at Alabama Law where I mostly (but not always) teach work law courses. Last year I taught Employment Law and Employee Benefits, but this year I’ll be teaching Leg Reg and a cross-listed Legal Anthro seminar. My work law research has centered on the gig economy (ask me about getting hired by Instacart or being a dog walker on Rover -- two job experiences I never expected to have, even for research purposes). I also have a significant and ongoing interest in India and comparative constitutional law; this grows out of my PhD research on temple management and religion-state relations, but it's evolving in new directions that I hope to talk about here.

My posts here will mostly focus on things that have stood out to me during my first year prawf-ing as an interdisciplinary, multi-subject scholar—not unlike some earlier series, especially the awesome Junior Law Prawfs FAQ that Chris Walker ran a few years ago—but I’ll also try to work in a couple substantive posts on the areas I write in.

Posted by Deepa Das Acevedo on July 16, 2019 at 11:14 AM in Jr. Law Prawfs FAQ | Permalink | Comments (2)

Monday, July 15, 2019

Free speech: Change or leave?

A fascinating thing about the President's remarks this weekend about four female Democratic reps of color, and of many responses from several congressional Republicans, is the model of free expression they represent. That model amounts to "if you don't like it, leave the country." This is not new. The President and Republicans have said similar things about Colin Kaepernick, Megan Rapinoe, and other athletes who kneel during the national anthem.

In this vision, there is no room for someone to criticize government policies or actions with the goal of prompting change. Nor is there a need to respond to criticisms by explaining why those critics are wrong and that the current action is the proper course. There is no need or room for discussion or debate--critics should shut up or get out.

Of course, the President's critics are seeing something good (i.e., anything he does) and purposely writing or saying bad. That, we learned last week, is not free speech.

Posted by Howard Wasserman on July 15, 2019 at 11:11 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (5)

Faculty Hiring at Richmond Law

Richmond Law is hiring! We are in the market for up to six new faculty members this year--3 tenure-track positions in a variety of areas, an endowed joint position with our leadership school, and directorships for new programs in professional identity formation and legal innovation.  The full ad is below the break:

The University of Richmond School of Law seeks top-notch scholars who are passionate about their teaching and research, who will thrive in an environment of engaged faculty, and who view the success of their colleagues and students as their own success.  This year we have openings for as many as three entry-level tenure-track professors.  We are open to a range of areas of interest but are especially looking for expertise in criminal law and procedure, critical legal studies, immigration, legislation and regulation, corporate law, cybersecurity, and data analytics/empirical legal studies.

We are also working with the Jepson School of Leadership Studies at the University of Richmond to fill the Tyler Haynes Interdisciplinary Professorship.  For this endowed professorship, we seek candidates with a distinguished record of scholarship and teaching who would be appointed as a tenured faculty member and would teach in both schools.  We are especially interested in candidates whose research addresses areas of applied law and leadership, including criminal justice, housing, immigration, educational policy, health care, and institutional design and analysis.  While we are open to candidates with either a J.D. or Ph.D., the ideal candidate will be a full professor with both.

Finally, we are looking to hire directors for two new signature programs—one in the area of professional identity formation and one in the area of legal innovation and entrepreneurship.  These directors will oversee the design and implementation of each program, as well as teach courses and direct co-curricular opportunities related to the program.

The University of Richmond, an equal opportunity employer, is committed to developing a diverse workforce and student body and to supporting an inclusive campus community.  Applications from candidates who will contribute to these goals are strongly encouraged. 

Inquiries regarding entry-level hiring should be directed to Professor Jim Gibson at [email protected].  Inquiries regarding the Haynes Professorship should be directed to [email protected]. Inquiries regarding the professional identity formation and legal innovation positions should be directed to Professor Jessica Erickson at [email protected].


Posted by Jessica Erickson on July 15, 2019 at 11:02 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Stupid rules, baseball edition

The independent Atlantic League (which used a Doppler radar plate umpire for its All Star game) has, with MLB support, implemented a new rule: Any pitch not "caught in flight" is a live ball, allowing a batter to run to first base or to be put out. People have described it as "stealing first," although that is not quite accurate. It happened in a game on Saturday. Others have described it as an extension of the uncaught third-strike rule, under which a batter becomes a runner if a third strike is not caught. I am not sure what the point is. I guess it adds excitement by offering a new way to reach first base, away from the home runs and walks that are increasing (and, some argue, making the game boring).

This seems stupid for several reasons.

The rule represents a departure from the game's basic structures. There are, famously, 7 (or 8, depending on how you count defensive interference) ways for a batter to reach base (unless you fine-grain it into 23). However you count, all are based on the batter putting the ball in play and the defense having to catch the ball to complete an out, or on the pitcher not being able to throw too many pitches out of the strike zone (there is no magic number, but it is not one). This rule introduces a new idea--reaching base on one pitch, not batted into play, that is not otherwise significant and would not otherwise produce an out.  I agree with the commentators who wonder whether the source of this rule actually likes or understands baseball.

The uncaught third strike analogy does not work. A batter becomes a runner on an uncaught third strike because that third strike is an otherwise significant pitch that would have produced an out had the catcher done his job. Moreover, the batter does not always become a runner on an uncaught third strike--he is out on strikes if first base is occupied with less than two out (for fear of creating Infield Fly-like perverse incentives). So there is a logic to when a batter does or does not become a runner. The new rule does not correspond to that logic and it is facile to label this a simple "extension" of that rule.

The new rule gives batters choices about when to try to reach base, which is otherwise unheard of in the game. A batter who hits the ball in fair play cannot "choose" whether to run--he must run. A batter cannot "decline" a walk to continue batting. The batter's choice begins and ends with whether to swing a bat. A batter cannot even decline to become a runner on an uncaught third strike--he must run. The game does not otherwise recognize the concept of a batter advancing "at his own risk"--at his option rather than forced; the batter is always forced to run when certain things happen. There is no logic to introducing this one optional situation.

The stories I have read do not explain what happens on a ball  that goes to the backstop with force-outs in effect on the bases (e.g., bases loaded or 1st/2d) and less than two out. Under ordinary rules, the runners can advance at their own risk on what would be a wild pitch or passed ball and they would have to be tagged. But if the batter attempts to run to first, that would force the runners to advance. Does this play now become a force on the lead runner at home? And how will anyone--the runners or the umpires--know? What if the runners do not plan to run (thinking the ball did not roll far enough away from the catcher) but the batter does run--now the runners are forced to advance but were not expecting to. There is no other situation in which everyone does not know in advance of the play what is a force-out and what is not, because the batter usually does not have a choice between running or not--this potentially adds some confusion. Or the new rule is limited to non-force-out situations--again, for no good reason.

This rule is part of a package that the Atlantic League and MLB are piloting. Two others are liberalizing what constitutes a check swing and allowing two foul bunts with two strikes before it is a strikeout. Again, all are designed to help batters and create offense, although at the risk of prolonging games that are already (it is said) too long. There is no obvious logic.

Posted by Howard Wasserman on July 15, 2019 at 09:25 AM in Howard Wasserman, Sports | Permalink | Comments (6)

Friday, July 12, 2019

MAGA in the classroom (edited)

This complaint from Jeffey Omari (Gonazaga) about a student wearing a MAGA hat in his classroom is absurd, as Jonathan Turley (GW) shows. I will leave aside whether "MAGA is an undeniable symbol of white supremacy and hatred toward certain nonwhite groups" or what this says about anti-conservative discrimination in legal education.*

[*] Although I cannot let this pass: Omari writes "Being a law professor, I understand the complexities of academic freedom and free speech. I respect students’ rights to freely express their political beliefs and values within the framework of the law. Yet, at the same time . . . " You could see that "yet" coming from a mile away.

I want to focus on classroom management, after the jump.

Omari writes:

law schools are inherently institutions of professional training. Just as faculty and staff are required to maintain professional formalities to aid the training and matriculation of their students, it seems only logical that students, too, should maintain similar businesslike etiquette. . . .  But when students fail to live up to such professional expectations, what are the professors’ options? . . . Surely, there must be protocol when African-American professors—whose presence is scarce in most law schools—find their authority defiantly undermined by an insensitive student.

In what way did this student fail to maintain businesslike etiquette or to meet professional expectations? A professor or school could prohibit baseball hats in the classroom (one of my colleagues does this), but neither Omari or Gonzaga has  done this. A professor or school could require students to dress in a professional or business-casual fashion in the classroom (i.e., no baseball hats or t-shirts with writing), but neither Gonzaga nor Omari requires this. I suppose a private school or professor at a private school could ban clothing with political messages or even conservative political messages in the classroom, although that would raise some concerns for academic freedom and basic common sense; but neither Gonzaga nor Omari has done this in any event.  So if, under the rules of the school and the professor, student can wear a baseball hat with any political message in this classroom, in what way did this student fail to meet his "professional expectations"? Other than by wearing a hat with a message the prof does not like.

As Omari describes his behavior, the student does not appear disruptive, disrespectful, unprofessional, or undermining. The student raised his hand to participate in class discussions, so he seems to be an engaged student who adheres to the rules of the classroom. Omari does not say the student's comments were unprofessional, provocative, or poorly thought out or expressed, or that the comments in any way interfered with the conversation or with the professor's authority. Since I expect Omari would have said so to support his case against the student, I infer from silence that the student's contributions were good, relevant, and well-stated remarks that furthered the classroom dynamic. Omari also says he "knew this student’s political leanings from our various class discussions throughout the course of the semester," without saying that this was revealed through prior irrelevant, disrespectful, or disruptive comments; again, his silence suggests an engaged student participating in the learning experience throughout the semester within the rules of the forum and not acting in an inappropriate or unprofessional way. Arguably, in fact, Omari, not the student, disrupted the class when he took the time from the substantive discussion to comment on the student's sartorial choices.*

[*] Turley makes a good point on this: The prof tells the student he likes the hat and the student smiles and says thank you. But the prof --who was untruthful in saying he liked the hat, describes the student as being the one using a mocking tone.

According to Omari, this incident occurred with three weeks left in the semester. He draws a lot from the fact that the student had not worn this hat or anything political to that point. But so what? No one wears the same hat or clothing every day. Moreover, I doubt Omari would be in less high dudgeon had the student done this on the first day rather than 75 % through the course. Which raises a more telling point. This was not the first encounter between professor and student, where this hat provided the professor's first impression of the student. This student had been in this class for most of the semester, participating  frequently enough that Omari knew his political leanings (which he obviously does not share) but without (apparent) incident. But none of that context comes through or affects Omari's telling. Regardless of anything that happened the previous weeks of the class, regardless of the student's overall performance and behavior, donning that hat, without more, rendered this person an "insensitive student" who "defiantly undermined" this professor.

Gonzaga dean Jacob Rooksby issued the following word salad: "The School of Law diligently works to provide a respectful and inclusive environment that welcomes all students, faculty, and staff. We respect the points of view of all members of our community. This situation presents an opportunity for our community to listen to and learn from each other." Frankly, I think the dean, who presumably knows something about law, has a bigger problem: One of his faculty members took to a national publication and called a student--unnamed but readily identifiable within a small institution (Gonzaga has about 350 students)--unprofessional, insensitive, disrespectful, and racist. For engaging in constitutionally protected speech supporting the sitting President.

Posted by Howard Wasserman on July 12, 2019 at 11:54 PM in Howard Wasserman, Teaching Law | Permalink | Comments (46)

Two Faculty Searches at Kansas

Below is information about two faculty search at University of Kansas School of Law.

Search # 1:

The University of Kansas School of Law invites applications for a tenure-track, associate professor to begin in the fall of 2020.  We are interested in candidates specializing in any field of law, but we are particularly interested in the fields of business, corporate, finance, transactional, and securities law, including both traditional and alternative approaches to these disciplines.

Applicants should possess a J.D. from an accredited US law school and evidence of potential for engaging in high quality research and teaching.  In a continuing effort to enrich its academic environment and provide equal educational and employment opportunities, the Law School actively encourages applications from members of underrepresented groups in higher education. Women, minorities, and candidates who will contribute to the climate of diversity in the school, including a diversity of scholarly approaches, are especially encouraged to apply.

Review of applications will begin September 3, 2019 and continue until the position is filled.  Applications should be made online at https://employment.ku.edu/faculty/14901BR and should include a cover letter, a curriculum vitae, a detailed statement of research interests and future plans, and the names of three references.

The law school will participate in the AALS Recruitment Conference in D.C. October 3-5, 2019.  For further information, contact Professor Uma Outka, University of Kansas School of Law, 1535 West 15th Street, Lawrence, KS  66045-7608, 785-864-9241, [email protected]

KU is an EO/AAE.  All qualified applicants will receive consideration for employment without regard to race, color, religion, sex (including pregnancy), age, national origin, disability, genetic information or protected Veteran status.

Search # 2:

The University of Kansas School of Law invites applications for a tenure-track, associate professor to begin in the fall of 2020.  We are interested in candidates specializing in any field of law, but we are particularly interested in the fields of digital privacy law; law and technology; health law; insurance law; natural resources law (which includes water law and land use); and human rights law.

Applicants should possess a J.D. from an accredited US law school and evidence of potential for engaging in high quality research and teaching.  In a continuing effort to enrich its academic environment and provide equal educational and employment opportunities, the Law School actively encourages applications from members of underrepresented groups in higher education. Women, minorities, and candidates who will contribute to the climate of diversity in the school, including a diversity of scholarly approaches, are especially encouraged to apply.

Review of applications will begin September 3, 2019 and continue until the position is filled.  Applications should be made online at https://employment.ku.edu/academic/14903BR and should include a cover letter, a curriculum vitae, a detailed statement of research interests and future plans, and the names of three references.   The law school will participate in the AALS Recruitment Conference in D.C. October 3-5, 2019.  For further information, contact Professor Uma Outka, University of Kansas School of Law, 1535 West 15th Street, Lawrence, KS  66045-7608, 785-864-9241, [email protected]

KU is an EO/AAE.  All qualified applicants will receive consideration for employment without regard to race, color, religion, sex (including pregnancy), age, national origin, disability, genetic information or protected Veteran status.

Posted by Howard Wasserman on July 12, 2019 at 09:32 AM in Teaching Law | Permalink | Comments (0)

Interview with Michael Heller from Columbia Law School on the Associates-in-Law Program

Below is the latest interview in my series interviewing VAP and fellowship directors.  This interview is with Michael Heller, the Lawrence A. Wien Professor of Real Estate Law at Columbia Law School.  Michael oversees the Associates-in-Law Program at Columbia.  An edited transcript of our conversation is below, and I have invited Michael to respond to any questions in the comments.  Thanks, Michael, for participating in this series!

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

I. Introduction

Q. Tell me your role with the Associates-in-Law program.

A. I chaired the Associates committee last year and am chairing it again this coming year.

Q. What does the committee do?

A. We select the Associates, support them while at Columbia, and help guide them to tenure-track faculty positions. The committee includes four to six faculty, the dean of graduate legal studies, and the director of legal writing programs.

Q. Columbia has a lot of post-graduate fellowships. Where does the Associates program fit in?

A. The Associates program is Columbia’s chief post-graduate teaching fellowship for promising scholars preparing for entry-level legal academic careers. Columbia also offers a range of specialized fellowships, such as fellowships associated with our research centers and programs, and these too can serve as a transition to a career in legal academia.

We designed the Associates program to have a light teaching load (fall only) so Associates can focus their time producing academic scholarship, connecting with faculty, going on the job market, and participating in the Fellows Workshop, which all post-graduate fellows attend. The Fellows Workshop is the core of the Associates community. It’s part of what sets the Associates program apart from the other top fellowships, and helps makes Columbia, I believe, the strongest and most collegial launch pad for people entering law teaching. The Workshop is a weekly boot camp for presenting early ideas and polished drafts, reviewing research agendas, mooting interviews and job talks—in short, for inculcating the academic norms and intellectual habits of mind that aspiring law faculty will need throughout their careers. The Associates also attend, and are active participants in, our twice-weekly faculty workshops. We believe Columbia’s intense workshop culture is what sets our program apart from others.

II. Application Process

Q. Let’s start with the Associates application process. Then we can move into the fellowship itself. When does the program start accepting applications?

A. We’ll start accepting applications in early September for the following academic year.

Q. What materials does a candidate need to submit?

A. Detailed instructions are on the application website.  Materials include: cover letter, academic CV, research agenda (usually three to five pages detailing upcoming writing projects and academic trajectory), scholarly writing samples, a brief teaching statement, and law school transcript. We also ask for up to three recommenders to send us letters separately.

Q. So candidates can start applying in September. What does the timeline look like from there? How many interviews are there and when do they tend to occur?

A. We review applications on a rolling basis. The current Associates are heavily involved in this initial screening process, along with the committee. Usually, we begin inviting candidates for preliminary interviews in the late fall, start holding on-campus interviews in late-January, and begin making offers in mid-February. The process can run later – we don’t know how many slots we can fill until the current Associates finalize their plans. For example, this past spring, one Associate elected to return for a third year on the way to a Supreme Court clerkship for 2020-21.

Q. And staying for a third-year is an option Associates can exercise at their discretion?

A. Yes. The Associates Program is a two-year fellowship. However, we guarantee Associates the option to stay for a third year, if necessary. In other years, Associates have availed themselves of the option in cases of parental leave or if they have needed a second year on the entry-level market.

Q. That’s unusual. That’s great. Can you give some more detail on the hiring timeline?

A. We aim to hire approximately three Associates each year. We start looking at files once they are complete, including recommendation letters. The preliminary interviews include several members of the committee and at least one current Associate, and are usually done on Skype, or in-person if the candidate is in the New York area. For the second round, we bring candidates to New York for an intensive day of on-campus interviews, similar to the process for entry-level candidates.

Q. For the second round of interviews, can you walk me through what that day looks like for candidates who come to Columbia?

A. They usually arrive on campus around 10 am. During the day, the candidate meets in small groups with the committee members and current Associates, and with at least one faculty member close to the candidate’s field. Even at the interview stage, we want to ensure that Columbia will be able to connect the candidate with strong mentors. Interviews are usually scheduled in 40-45 minute blocks. At lunch, instead of giving a job talk, the candidate attends a workshop – either the Fellows Workshop (on Wednesday) or a Faculty Workshop (on Tuesday or Thursday). After lunch, there’s usually one or two more rounds of interviews, and the day wraps up around 3-4 pm.

Q. And then who are actually the decision makers at the end of the day?

A. Everyone who interviews the candidates provides their evaluation and is involved in the decision, but the committee has the final say. It’s similar to regular entry-level hiring decisions, in that there are multiple vetoes. We do not make an offer unless there is a consensus of enthusiastic support among the committee members, the current Associates, and faculty in the candidate’s field.

Q. How many applications do you typically receive?

A. We typically receive between 70-100, mostly in the early fall, with a second wave in late-January.

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

A. Absolutely, yes. Entry level slots are scarce and precious. Part of our responsibility is to imagine what the profession can look like in a generation. We aim to ensure that diverse and non-traditional voices are a robust part of the entry hiring pool. We actively reach out to faculty at Columbia and elsewhere to encourage a diverse applicant pool for the program and to help us evaluate candidates whose work is outside our areas of expertise. Ensuring diversity is a focus at every stage of our process, from initial screening to final offers.

Q. Any additional criteria? Anything else that helps an applicant stand out in the application process, other than the things that we’ve talked about already?

A. The core of what we are all looking for is a certain quality of mind, a spark that’s likely to lead to a distinctive and productive scholarly voice. Second, we want to make sure that the applicant will be a major contributor to the intellectual community here at Columbia, including at the Fellows Workshop, skilled both at giving and receiving feedback across a range of substantive areas and methodologies – e.g., someone who we believe will make for a wonderful colleague. Finally, we only hire people if we are confident that we have Columbia faculty who will be deeply invested in mentoring them.

III. Scholarship

Q. You say the Associate’s program has three components – scholarship, teaching, and community. Let’s start with scholarship. Describe that component.

A. Scholarly potential is our single most important criterion for hiring. We will not hire unless we are confident the candidate will be ready to succeed on the academic job market after the fellowship.

Q. How are you gauging that on the scholarly side?

A. Exactly the same way entry-level hiring committees gauge potential. We are looking for people for whom two years at Columbia will be jet fuel for their intellectual development. We are looking for candidates poised to be major scholars. More concretely, we put the writing samples and the research agenda at the center of our evaluation in screening candidates and at the interviews. Do the published articles and draft pieces make important contributions? Can we see an original, exciting, and feasible trajectory in the candidate’s writing and agenda?

Q. How much do people tend to have in terms of writing already? Do most successful candidates have a full paper, more than one full paper?

A. More than one full paper, usually. Not always, but usually. We often see applicants today who have as much published writing as faculty had a generation ago when they got tenure. There’s been a steady ratcheting up in credentials on the entry market, and that has translated to the fellowship market as well. We are much less concerned with the quantity of papers, however, than with the quality. One powerful, creative, and original paper carries a lot of weight. Sometimes, we have even hired people just with a smart paper in draft and an inspiring agenda. But, the more writing we can read, the easier it is to make an offer.

Q. Obviously some of these people are coming from PhD programs where they’ve had the time to write a lot. People who are not coming from PhD programs, do you have a sense of how they are finding the time to write that many articles?

A. People who are determined to be scholars make the time to write, even if they come from practice. It’s difficult, yes, but that’s part of what makes it so much more impressive when we get a candidate who has been able to produce exciting scholarship on nights and weekends while working full-time. Yes, PhDs have a stream of articles in hand and a coherent scholarly trajectory mapped out. That’s why they do so well on the market. But we work hard to ensure that we are selecting the best future scholars, and that regularly includes candidates from practice who have that scholarly spark. Often, their research will be directly related to their practice experience, and so their research will reflect a high level of subject-matter expertise.

Q. When you talk about practice experience, how much are you typically looking for?

A. More than a year or two is great, but difficult to find these days. Ideally, candidates from practice bring some real mastery of, and insight about, their legal practice area.

Q. How do you evaluate the tradeoff between legal practice and PhD routes? The PhDs seem to have a built-in benefit.

A. Yes, in part because PhDs have a structured path to write and to develop methodological expertise. In that sense, it’s not surprising they do well in entry-level hiring. But PhD candidates can sometimes lack a deeply textured understanding of the law itself, and that’s where applicants from legal practice can shine. Because practice experience is often generative for rich and nuanced scholarship, we definitely value practice experience in our hiring. Indeed, this year, two of our four non-PhD incoming Associates had significant practice experience. And “practice experience” need not be only at law firms or clerkships, by the way—one of our incoming associates brings significant work experience at the highest levels of the federal government relevant to their field.

Q. But out of curiosity, just because I know people would want me to ask this question, given that hiring committees often want more practice experience, why not put less weight on the PhD, require less scholarship coming into a fellowship program, and give even more preference to practice experience?

A. We have some discretion to shape the pool of entry-level applicants, and we do use that to expand the pipeline in ways we believe matter, including giving more weight to practice experience. But Columbia is an unusual position. With a collegial workshop culture, ample time for the Associates’ own writing, and strong mentorship of candidates, Columbia offers what we believe is the best fellowship in the country to prepare people for the entry market. So realistically, we are choosing among outstanding candidates, and we don’t generally feel we face tradeoffs in who we are considering.

Q. What advice do you have for applicants who do not have PhDs?

A. Write seminar papers during law school that you can develop later and write drafts while clerking and practicing so you have a pipeline of material. People coming out of practice are often poorly advised before they apply. They do not realize they have a short clock between when the fellowship starts and when they have to be ready to go on the job market – just a year. Yet they often submit fellowship agendas that will require more time than that. Those applications generally aren’t credible. For people coming from practice, we usually look for, at a minimum, advanced drafts. But ideally, candidates from practice should probably aim to have a law review publication (an article or a note) before applying. If your experience was particularly substantive, or otherwise allows you to write law review articles that could only be written by someone with the deep practice knowledge you bring, so much the better.

Q. How about people coming off Supreme Court clerkships?

A. That’s definitely a plus, and we have had several clerks in the past few years, but it’s a shrinking pool. That was a traditional route to entry hiring, but now there are few Supreme Court clerks among our applicants or who go on the entry market. Perhaps they have too many other great options – though it’s hard to see what’s better than a life as a legal scholar. We’d love to see more Supreme Court clerks back in the mix.

Q. Any advice for PhD applicants?

A. People coming out of PhD programs have a story. They have an agenda that says, “I’m the person who does this, I’m at the cutting edge of this particular methodology, here’s three articles I’ve written, and here are the next five that I will be doing between now and tenure. Together, my agenda adds up to this major scholarly contribution.” Hiring committees know more or less what they’re getting.

However, PhD applicants sometimes trip up in making the pivot to legal scholarship. Many have been immersed in their dissertation world and have strayed from core concerns of current legal scholarship. These candidates can have a hard time understanding what questions matter in law schools, to law faculty, and with law students. And they don’t realize how short a time they have to reframe their research —just that one year from their start date to when the FAR forms are due.

My strong advice to applicants coming from PhD programs is to think hard, before they apply to us (or anywhere else), about how their research agenda connects to the law and to prevailing legal scholarship. It’s too late to begin this process only once a fellowship starts. They should already have started translating their dissertation work for law audiences and have received detailed feedback on their research agendas from their law faculty recommenders. If possible, they should begin the fellowship with an advanced draft of their job talk paper and legal research agenda already in hand.

Q. Let’s turn to people without these traditional markers, people without a PhD, perhaps who didn’t go to one of the top law schools, didn’t do an elite clerkship, what advice would you have for them in terms of trying to break into the law teaching world?

A. All the traditional elite markers of success are proxies for writing specifically and for scholarly potential more generally. So, you can get there directly by doing the writing. We read everything. And the writing comes first.

Q. In the application process, in the hiring process, do you give any preference, however slight, to different curricular areas? Do you ever give a thumb on the scale to candidates in curricular areas where there is more demand on the entry-level market?

A. No, not at all. True, there’s more demand for people in certain areas, and the fields vary a bit from year to year. But we have the luxury of hiring the very top candidates on the market – so we are looking for people who we expect to be academic stars, who will contribute to legal scholarship at the highest level, whatever field they teach.

Q. A last point on scholarship. If you look on the blogs, there’s criticism that VAPs and fellows may get too much help on their scholarship, so hard for hiring committees to tease out what’s original to the VAPs and fellows themselves. What do you think about that criticism?

A. I don’t agree at all, at least as that statement applies to Columbia’s process. We hire Associates because we are confident in their ideas and in their potential. We would be doing our Associates a disservice by importing our own ideas into their work. I can maybe understand the potential issue for candidates who have written co-authored articles, but even then committees look at the piece as part of a larger mosaic with other articles, drafts, the research agenda, recommendation letters and calls, and multiple interviews. Nobody is getting bamboozled.

IV. Teaching

Q. Let’s move on to teaching. What does the teaching load look like at Columbia?

A. By design, the Associates have a light teaching load – our intention is to give Associates time to write and to prepare for the job market. In the fall, the Associates teach two sections of legal writing and research; each section has about 22 students. Six Associates teach LLMs; one teaches JDs. For the LLM sections, there’s two intense weeks in August, when they introduce students to American law and the class meets every day. After that, Associates teach each section once a week and hold individual meetings with students to review their writing. All teaching for the year is done before Thanksgiving.

Q: How important is teaching in your hiring decisions? And how do you try to determine if you think someone will be a good teacher?

A. We expect the Associates to be superb classroom teachers and we make that a priority in hiring: we won’t hire people unless we are confident in their teaching ability. Many candidates already have teaching experience, and some have won teaching awards or even worked as a full-time teacher at some point in their career. Additionally, in our experience, time spent mentoring younger lawyers while in practice translates well to the classroom. We look at candidates’ teaching statements in their applications and how they handle themselves during the interviews. In short, we are looking for people who are skilled, passionate, and thoughtful about teaching.

Q. Do Associates have the opportunity to teach other types of courses?

A. Yes, although we encourage a cautious approach. We deliberately protect the Associates from too much teaching so they can turbo-charge their writing. At this crucial and delicate moment in their careers, there is a much higher payoff from having more and better papers than from having prepped and taught one more course or seminar. In my view, every extra minute should be spent writing and engaging with scholars and scholarship. That said, Associates who are excited to develop new course offerings related to their scholarly passions have had the opportunity to do so. We are proud of the teaching component of our program and, combined with the sort of Associates we hire, are confident of the quality of teacher that we produce.

Q. What mentoring or feedback do they receive on their teaching?

A. Columbia offers a range of resources to improve teaching. If you want, specialists will come and do focus groups with your students, videotape your class and give you feedback. That’s available, but we hire Associates who are already, by and large, great classroom teachers. We’ve been successful in hiring an outgoing, student-oriented, passionate fellows, and that’s reflected in their typically strong student evaluations.

V. Fellows Workshop and Community

Q. Let’s go into the Fellows Workshop series, and then we can talk more broadly about Columbia’s workshop series. But the fellows only workshop, tell me about that.

A. The Associates run the Fellows Workshop, at lunch each Wednesday year-round, sometimes with an extra session during peak hiring season. This Workshop is at the core of the Associates program. The expectation is that all the fellows will attend, be prepared, and contribute to the discussion. The fellows use the lunches for varied purposes at different points in the year. Often, they present early stage work. Sometimes more polished papers. They moot interviews and job talks. Our Associates community is incredibly intellectually vibrant, and Associates regularly report that the Workshop is one of the most important parts of being at Columbia; it’s an experience that grounds the community, and offers a home base for the Associates to compare notes as they extend their networks throughout the law school and the wider legal academic world.

When we hire Associates, we think a lot about how they will contribute to this community. We look for people who are broadly curious, who will be interested in engaging with all the other fellows. As a young scholar, it’s important to be able to comment on one another’s work from an external perspective, to offer your methodological expertise. And it’s equally important to be skilled as a sympathetic reader, to be able to offer internal critiques from within the framework where your colleague is operating. The Workshop is intended to help Associates develop both those skills, to learn how to engage intensely, productively, and sensitively as a scholar.

Q. We’ve hired a couple of people out of the Associates program, and I’ll say, they excel at that. I do think it’s great training for being active members of an intellectual community.

A. It is, absolutely. Being acculturated into the workshop environment is a skill people don’t get in law school and often miss in PhD programs. But workshop skills are, I believe, crucial to success as an academic. It’s central to being a sought-after and respected colleague. You have to know how to ask a question and to offer constructive comments. And just as tricky, you have to be skilled in being able to hear criticism and revise your own work in response. You have to learn what counts as a good legal academic argument. This workshop is the place where that happens.

Q. Do Associates participate in the broader intellectual community at the school? So, for example, Columbia’s standard faculty workshop.

A. Yes. They are full participants in our two main faculty workshops. Usually, at Thursday lunch, Columbia faculty workshop fairly polished papers; at Tuesday lunch, faculty present early stage ideas, just a few pages with open discussion. Associates are active and valuable contributors to both.

In addition, Columbia has a huge range of specialized faculty workshops – there’s the legal history workshop, legal theory workshop, law and economics workshop, blue sky securities law workshop, critical thought, courts and legal process, tax, and several more. All told, there are more workshops than days in the week – so I encourage Associates to be mindful of how they divvy up their time and attention. Associates are welcome and active participants in these field-specific workshops, and regularly serve as commenters, discussants, and agenda-setters, in collaboration with faculty colleagues. Also, across the street, the University is full of on-point events. And Columbia is part of the greater New York legal academic community, with NYU, Fordham, Cardozo, and other area schools within easy reach. There are a number of cross-school workshops – which are a bonanza for Associates in particular fields. After two years, Associates can leave Columbia deeply enmeshed already in the academic networks that define their field(s).

Q. All this activity makes a two-year fellowship seem so short.

A. Yes. You arrive in July and start teaching in August. During that fall, you also have to write, revise, and polish your job talk article so it’s ready to submit, ideally in the February cycle. And in the late spring you have to complete your full FAR package, so it’s ready by August. This is why I encourage Associates to draft their job talk paper before they start the fellowship, if at all possible – the timeline is so compressed. In the fall of their second year, Associates are on the market, flying around giving job talks in the fall and winter while completing their teaching. We hope Associates use the spring of the second year, after they have accepted a tenure-track offer, to get more paper drafts in the pipeline, so they start the tenure clock primed for success. Every day during these fellowships should be a writing day. Every day is precious.

VI. Nuts and Bolts

Q. Let’s shift over to some of the terms and conditions of employment. Salary, benefits, and the like.

A. The Associates’ salary is competitive with the other top fellowship programs. We also offer subsidized housing and benefits. Our goal is to ensure that Columbia remains the top choice for the strongest candidates on the market.

Q. Tell me about that subsidized housing. What does that mean? Is that guaranteed?

A. Yes, we guarantee subsidized Columbia housing. We offer a wide range of options, depending on the person’s family situation, and ranging from studios to larger apartments, including Morningside Heights three-bedroom apartments. They are all within an easy short walk to the law school. You get to live comfortably in a great part of New York City – it’s quite a good deal. We aim to make the transition to Columbia hassle-free, so Associates can focus on their scholarship.

Q. Do the fellows receive health benefits?

A. Yes. Columbia provides generous health insurance plan options, on par with what our faculty receive. Also, miscellaneous benefits, like inexpensive gym membership, and the like.

Q. How about travel funding or other professional development funding?

A. Yes. We cover reasonable conference and research travel. Additionally, we cover expenses and fees for the AALS hiring convention in the fall, and for the regular AALS convention in January, reimbursed on the same terms as regular faculty.

Q. How about funding to hire research assistants?

A. We don’t have separate funding for RAs, but we do have some funding available for other research related expenses, like specialized computer access, data sets, or survey research.

Q. Tell me about library support.

A. That’s a huge strength at Columbia. Associates have full access to one of the best law libraries in the world. And they can rely on our incredible law librarians. In recent years, we’ve been able to get library access for Associates even before they start the fellowship. This has helped a few Associates who need access, for example, to specialized archives or expensive databases. And it’s meant they can advance the work on their job talk paper in the months before they take up residence in July.

Q. Are fellows required to live in New York City?

A. Yes, we generally require Associates to be in residence in the New York City area. The core of our program is the Associates community – not just the Workshop, but the informal back and forth with the law school’s scholarly community. And for that to work, people have to be around the building. There is no requirement that Associates spend particular hours here, but folks are usually around, in and out of each other’s offices. It’s a hard-working group, as it should be.

VII. Mentoring and Placement

Q. In terms of engaging with faculty, how do the fellows find mentors? Are they assigned a mentor? Are they given assistance there?

A. We haven’t assigned formal mentors. However, we build mentorship into the program right from the start, with the hiring process. We identify who are likely to be the crucial people for that candidate’s scholarly development and bring them into the on-campus interview process. After the interview, we ask the potential mentors, "Is it someone you want to work with?" We won’t hire an Associate unless we are confident they will have faculty to mentor them.

Q. Then what assistance are they given once they arrive?

A. The committee members and I always stand ready to make introductions and smooth the way to faculty here at Columbia and elsewhere. That said, we choose Associates whom we know will succeed: self-starters with articles and research agendas that excite current faculty members. This ensures a strong base of organic support for our Associates, and means that Associates go on the market with Columbia recommenders who authentically believe in their potential and are committed to their success. Additionally, the existing Associates are a great source of information for each other. They know who likes to see early ideas, who prefers more polished papers; who will read multiple drafts, and who wants to see just one; who prefers to read just an intro, who reads whole drafts, and who likely won’t respond at all—you know, the same dynamics we experience as regular faculty with our own colleagues!

Q. Are you the one who’s directly supervising them? Not necessarily in an employment capacity, but in terms of day to day life, or is there someone else on the faculty?

A. Yes, that’s me for day to day life, like help with getting extra research funds, or early access to library databases.

Q. And on the job market?

A. For the job market, we have an Academic Placement committee that helps make phone calls for Associates, get in touch with recommenders, and reach out to entry-level hiring committees at other schools. They also run Columbia’s “Moot Camp” each fall. At Moot Camp, each fellow gets to present their job talk as if it were a regular entry-level talk, with a 20-minute presentation followed by faculty questions. Usually, one faculty member asks questions from within the candidate’s field, another from outside, so it mimics the entry-level talk. After the Q&A, the faculty then give feedback to the fellow.

VIII. Why Columbia?

Q. We’ve gone through a lot of the details. Let’s step back for a moment. If you had a candidate who was choosing between the Columbia program and some of the other top programs out there, how would you sell them on Columbia’s? What do you think makes it stand apart?

A. First, the most exceptional part of the Columbia program is the Fellows Workshop, along with our broader faculty workshop culture. The Fellows Workshop, in particular, turbocharges the Associates’ teaching skills, presenting skills, and workshop skills. It hones their intellectual development, their papers, and their readiness to be tenure-track faculty. Finally, it facilitates a collaborative, collegial community among the Associates, one that carries on even after they leave the program for tenure-track positions. Many former Associates who are now tenured law professors themselves remain very fond of the program and are eager to mentor our current Associates.

Second, I think we offer the right balance between teaching and writing – which is to say, less teaching, more writing. Since we are able to hire the very top candidates on the market, they are, by and large, already great teachers. By limiting teaching to a short burst in the fall, we make space for the Associates to hone their writing. Scholarship comes first.

Third, we offer wide-ranging support for Associates as they go on the market. As a large faculty, Columbia usually has several people who are expert in each Associate’s field. So, Associates are not dependent on any one relationship, and can usually get varied feedback. Also, by being in New York, Associates have access to the leading faculty in their area, all within lunch or workshop distance. Being known by the core people in your field matters not just in the hiring process, but in your life as a scholar.

Fourth, and perhaps more mundane, we try to make being at Columbia seamless and frictionless. You don’t have to waste time house hunting. Everything is walking distance, the gym is across the street, the park a block away, the library gets you anything you need. We work hard to strip away irritations so Associates can focus on their scholarly development.

Q. Do you happen to know off the top of your head the percentage of fellows over, say, the last five years, who have landed in tenure track positions at law schools?

A. All of them, I think, with the caveat that one or two took parental leave, which shifted back their entry-level hiring timeline. Here’s the link to recent Associate placements.  The four Associates who went on the market this past year accepted great tenure-track law academic jobs.

Posted by Jessica Erickson on July 12, 2019 at 07:55 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (4)

Wednesday, July 10, 2019

JOTWELL: Vladeck on Thomas on O'Connor

The new Courts Law essay comes from Steve Vladeck (Texas), reviewing Evan Thomas, First: Sandra Day O'Connor (Penguin Random House 2019) and arguing that the bio reveals O'Connor as likely the last true centrist on the Court.

Posted by Howard Wasserman on July 10, 2019 at 10:05 AM in Books, Howard Wasserman | Permalink | Comments (0)

Tuesday, July 09, 2019

Stare Decisis Is Undertheorized

A major theme of the most recent Supreme Court Term was stare decisis. Several cases either overruled precedents (over dissents) or refused to do (over dissents) with each side chastising the other for its approach to precedent. After reading these opinions, as well as other judicial and academic commentary, I'm struck by how little useful analysis there is about stare decisis. In some future posts, I'll try to explain what I mean by that, as it will help me think through some aspects of the doctrine. 

Posted by Gerard Magliocca on July 9, 2019 at 10:22 PM | Permalink | Comments (8)

Friday, July 05, 2019

Mueller Report: The Play (Updated)

What started as a joke and emerged as parody was done as a serious piece of theater , titled The Investigation: A Search for the Truth in Ten Acts. It features A-list actors including John Lithgow, Joel Grey,* Annette Benning, Kevin Kline and Justin Long; it was written by award-winning playwright Robert Schenkkan. A video of the show (running about 1:15) is embedded in the LawFare piece and at the Law Works site.

[*] "Willkommen! Dobro Pozhalovat! Welcome!"

The author of the LawFare piece (Mikhaila Fogel) explains how dramatization shows how members of Congress should (and should not) approach next week's hearing. In short: Do ask "deliberate, narrative-driven questions about the text of the report [that] will tell a powerful and credible story;" do not rely on "[s]entiment, indignation and pontification." In other words, act like trial lawyers or judges, not grandstanding politicians.

Update: Having watched watched the performance (from late June), I see Fogel's point about melodrama. But if House Dems see themselves as speaking to the American People--specifically those portions of the American People who are neither convinced of Trump's culpability nor unpersuadable that Trump did anything wrong--there is a nice legal question of how to understand that audience. Is it a jury or a panel of judges? And does that affect how you ask the questions to present the case? And should it?

Also: If a similar reading  of the Starr Report had been staged in 1998, imagine the accompanying soundtrack.

Posted by Howard Wasserman on July 5, 2019 at 02:43 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (2)

French defamation (Corrected)

Three groups of Michael Jackson fans (sorry, writing in a train station) have sued the men featured in Leaving Neverland accusing Jackson of sexual assault. The lawsuit was filed in France, which, the article repeats, recognizes defamation of a dead person.

But the story does not discuss what to me should be the real issue about French law: How have fan groups suffered a compensable injury, or using unfortunate U.S. terminology, how do fan groups have standing? Even if a dead person can be defamed under French law, how is a group of people who like his music (perhaps too much) injured by that?

Anyone familiar with French tort law?

Posted by Howard Wasserman on July 5, 2019 at 09:22 AM in Howard Wasserman | Permalink | Comments (6)

Interview with Jeanne Merino on the Thomas C. Grey Fellowship Program at Stanford Law School

Here is the next interview in my series interviewing VAP and fellowship directors.  Thanks to Jeanne Merino, the Director of the First-Year Legal Research and Writing Program at Stanford Law School, for participating in this series!  She oversees the fellows in Stanford’s Thomas C. Grey Fellowship for Legal Research and Writing (LRW).   An edited transcript of our conversation is below, and I have invited Jeanne 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.  Full interview below the break.

Q. Tell me about your role with the Thomas Grey C. Fellowship program.

A. I direct the legal research and writing program and supervise the Grey Fellows, who teach in the LRW program. I hire the fellows with the LRW faculty committee, train them, and supervise their teaching.

Q. I would love to take the fellowship program chronologically, starting with the application process, then moving through the fellowship itself and how to make the most of it. When do you start accepting applications?

A. We start accepting applications in August of each year for the following year. This August 2019, we'll start receiving applications for 2020-2021.

Q. And if somebody wanted to apply, what materials do they need to submit?

A. There are two different ways to submit materials. Applicants who are attending the AALS hiring conference should send us a letter of interest by September 15. We will review the materials hosted on the AALS Faculty Appointments Register and ask for interviews the weekend before the hiring conference. In some years if there aren’t a lot of candidates for AALS and I will skip the trip and funnel those candidates into the direct application system.

Applicants who are not attending AALS can apply directly to our program. We have a job announcement on our website. Applicants submit materials to [email protected] Required materials are a cover letter describing the candidate’s interest in the program, a CV or resume, publications, a writing sample from law practice, a law school transcript, letters of recommendation (preferred) or the names of references, and a research agenda. We don’t expect the research agenda to be as sophisticated an agenda as produced by people who are going on the tenure-track market. But we want a sense of the scholarly interests of the applicants, the connection between those interests and their law practice, if any, what methodological approaches they are considering, and a little bit about what the trajectory of their work is going to be. Fellows don't stick 100% to their research agendas. We just want them to start thinking about the arc of their career as law scholars.

We don’t have openings every year. We have five fellows, and since the fellows decide if they will stay for two years or three years we don’t consistently hire every year. Our unpredictable timeline can be frustrating to applicants, but it pays off in flexibility for fellows. We are hiring this year.

This year I will start reviewing the direct applications around mid-October. I summarize the applications and the LRW faculty committee and I decide whom to interview. The committee is chaired by Larry Marshall, and current members are Shirin Sinnar and George Fisher, all of whom are tenured professors. I first schedule a phone interview with candidates. Occasionally if an applicant shares academic interests with the chair of our legal research and writing committee they might also have a phone interview with him, but usually that call is with me.

The phone interview tends to be on the long side, like an hour or so. I cover all the territory, including what do you like about being a lawyer? Why do you want to make a transition to law teaching? What are your research interests? How do you want to study your areas of interest? Why do you want to teach? What do you love about writing? How did you learn to really write like a lawyer? I want to hire people who love to write, and not just in a scholarly voice. Some of our current and former fellows are poets, journalists, fiction writers, and photographers—people who think about how to communicate complicated ideas in nuanced and sophisticated ways. I want to hire people who are enthusiastic about being lawyers, because I want that enthusiasm to come through to our students. And I want people who have a real appreciation for what lawyers do.

We schedule callbacks usually starting around the end of November or beginning of December. Depending on the number of positions we have to fill, we might have callbacks in January and February as well. How late we interview depends a bit on how our own fellows are doing on the market.

We schedule a lot of meetings for the callbacks. We schedule meetings with a group of current fellows, so they can get a sense of how the applicant would work together with the team, and how the interests of the applicant would complement the interests of the current fellows. We have individual meetings with some members of the legal research and writing committee and with members of our faculty who are in the same discipline as the candidate.

The purpose of those meetings is two-fold. First, we need feedback from scholars who can tell us if the applicant’s scholarship fills a gap in the body of work, is well-researched and considered, and whether there are likely to be openings in that area when fellows complete their fellowship. Second, we want to know if those faculty members are interested in working with the applicant. We need faculty to support our fellows’ research interests. We expect fellows to be working hard on teaching, and the quid pro quo for that hard work is to give them access to faculty who can comment on their scholarship.

Q. As for the final decision, is that made by the committee or by you?

A. The committee. In the past the chair and I would write a memo recommending hires and the committee would usually endorse our recommendation. The current committee is more involved in all aspects of the fellowship, so now it will be a committee decision.

Q. How many applications do you receive in a typical year?

A. The number of applications has gone down. I'm doing more outreach and PR this year, and I hope this interview gets an audience, and I’ll see if the number of applications goes up. We used to get about 75 applications. This last year, we got like 26 applications.

Q. Oh, wow. That is a big difference.

A. Yes, the number has gone down a lot. I indicated on our website last year that we might not have an opening, and in fact we did not have an opening this year. If we hired more consistently we might have more applicants. It’s also been awhile since I did outreach, so I'm doing that again this summer.

Q. During the application process, how do you gauge who will make a good teacher?

A. Moving forward, we will ask people to teach a class when they come in for the callback. We don’t expect perfection at the outset, and honestly, I think LRW is a really hard class to teach to a group of students. But I do want to know if candidates can reflect about how to analyze the law and connect with students.

As teachers, our primary job is to teach students how to think like a lawyer, strategize like a lawyer, use authority the way that lawyers do, and communicate concisely and precisely. The most successful teachers convey a real enthusiasm for lawyering as a process and thoughtfulness about what it means to be a lawyer in the world today, which is complicated and multifaceted and has lots of pros and cons. And LRW teachers should appreciate the work that lawyers do.

In terms of connecting with an audience, a good law professor has to listen hard, probe students' comments, be open to lots of different points of view, and be able to facilitate a conversation where students feel comfortable putting their points of view in.

We also have to shape students' thinking when they say something that's off the mark. How can we interrupt wrong thinking without dissuading students from participating in the conversation?

We also make better teachers if we're thinking hard about how indispensible communication is to our profession. We communicate orally. We communicate in writing. And if we can't do that, our ideas stay in our brains doing no good for anyone. So, we look for people who can be really thoughtful about the work of the law and the skills of writing and speaking, and teach that clearly, but also in nuanced and interesting ways.

Q. How much does practice experience matter in the hiring process? Relatedly, how much practice experience are you looking for?

A. It weighs a lot. I think it weighs more in our program than most other fellowship programs because our courses are taught as simulations where students are acting in the role of lawyers. Part of the process in the simulation is to think strategically about the lawyering context and litigation process. What does the client want? What are the lawyers' options, including litigation and other lawyering choices? What does the law say, and what is the room to play in the joints of the law?

We hire fellows who have had experience with that legal process. We require fellows who have at least two years of lawyering experience. Clerkship counts as part of that lawyering experience. I'm really looking for candidates who are advanced enough in their career to think strategically and not an assignment at a time. They're looking at the lawyering process as a whole; they're thinking about how lawyers help clients make decisions when the law is uncertain and the facts are in flux. Frankly, that’s a big part of the fun of our classes. It's pretty common for us to have applicants and to hire applicants who have a tremendous amount of experience, like eight, nine years of lawyering experience or more.

We hire fellows with diverse experience. We have fellows with criminal law backgrounds, civil law backgrounds, public interest, public service, private law firm, transactional backgrounds. Although we do emphasize litigation in class, so some exposure to litigation is pretty important. But a lot of our students go into transactional law and fellows with a background in transactions have helped us “translate” our litigation simulations so students see the benefit of learning the basics of analyzing law, writing, and oral communication. Also, since we work collaboratively, I rely on others’ experience to help fill in the gaps of my knowledge. I’ve never worked for a law firm, for example, so it’s important to have faculty who know what the expectations are in that practice area.

Q. Now let’s turn to the scholarly side. What are they typically expected to have scholarship-wise when they apply? In other words, is it a full paper, more than one full paper, just an idea?

A. Because there are so many different factors we consider, there is no fixed requirement. But strong candidates might have a substantial paper in production and a few other ideas, and many have much more. An applicant might have a student note, but since our applicants have some work experience, some of the student notes are a little bit dated and may not reflect what they're thinking about and what they're capable of. That said, since our program welcomes fellows who plan to stay for three years, it’s okay to have somewhat less scholarship as long as there’s enough to show the fellow is able and sincerely interested in producing scholarship.

The tenure-track teaching market has changed a lot in the last ten years, and successful candidates on the tenure-track teaching market must have more publications than they used to have.

Q. Yeah, absolutely. And does that go for the research agenda, too? Are you looking for a pretty well-developed research agenda?

A. No, I would say, I'm looking to understand who candidates want to be as scholars, but that’s a process and I know that will change over the course of the fellowship. I also use the agenda to try to figure out which faculty I should loop in on the hiring process.

Q. One of the comments that keeps coming up on the blogs is people expressing frustration that so many law faculty and so many law fellows have the same or similar backgrounds. They went to Harvard, Yale or Stanford. They had an elite clerkship. If you were an advising a candidate, perhaps without those traditional markers, how would you advise them to try to stand out in the application process?

A. Yes, I’ve seen that question raised. And I will say, we’ve had fellows who have gone to Harvard, Yale, and Stanford, but we also have a fair number of very successful fellows who are now in tenure-track positions, who did not go to those 3 schools, or top 15 schools.
We've had fellows from UCLA and Northwestern and UC Hastings and GW. And I'm not going to say, because it would be a damned lie for me to say that the law school doesn't matter on the tenure-track teaching market. It does. If you didn't go to one of the elite schools, you have a lot more that you need to show.

But if you were a standout at one of those schools and you have mentors who know you as smart and curious and interested in ideas and teaching, then I think you could be a really great candidate for our program. If you've done great work as a lawyer, if you've demonstrated a real commitment and interest to writing, not just doing a fellowship to escape litigation but taking what you learned and developing ideas from your lawyering experience that are real, deep interesting things that lawyers should be thinking and reading about, I hope you’ll consider us. If you're open to the idea of joining an intellectual community and participating in how other people develop their ideas, then we're interested in you.

And so far this approach has worked for us. Nearly all of our fellows have gone on to tenure-track teaching. But I do have to keep an eye on the market, and fewer of our fellows are getting the many multiple offers that they were before the crash.

At some point if we have a hard time placing people from our program, then we will have to consider a change. It doesn’t make sense to have people leave their well-paying, satisfying jobs for a comparatively low-paying job if chances are low that they will achieve what they hope to achieve. We pay more than most—maybe all?—fellowships, but everyone takes a cut when they take this job.

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

A. Yes. We hire women and people of color, and they are successful here as teachers and on the market. Ten years ago we renewed our efforts to hire fellows who are dedicated to tenure-track law teaching after the fellowship. Since then nineteen fellows have graduated from our program and gone on the tenure-track teaching market. All but one got a tenure-track teaching job. Of those nineteen, eleven are women and eight are people of color.

Q. That's great.

A. Currently, our five fellows are all women, but that is rarely true.

Q. I saw that.

A. Women are still underrepresented in the legal academy, and I’m proud of the role we’ve played in promoting them professionally. Three of our current fellows are women of color. Considering the twenty-four former and current fellows together, sixteen are women and eleven are people of color. Two of those fellows or former fellows are Latinx and two are of African descent, ethnic groups that are particularly underrepresented in the academy. And in addition to ethnic diversity, two of our former fellows are gay men. We’ve had plenty of straight white men, or course. I’m Latina so I have a personal commitment to diversity. But it’s also a part of my professional obligation, as a lawyer and someone who cares about justice. We’ve got to diversify our law faculties so they reflect the communities we serve. And that takes a conscious effort.

Q. That's fabulous. Let me turn over to some of the terms and conditions of employment. I saw on the website, it said fellows for this last year were paid $72,000 a year. Is that still the right number?

A. That's the right number. Our salary goes up $2,000 in the second year and another $2000 in the third year. So, salary ranges from 72k to 76k.

Q. Okay. And do fellows receive health benefits?

A. Yes.

Q. And how about access to the university or subsidized housing? I imagine that could be a big deal in Palo Alto.

A. It's a big deal. It's a huge problem.

Q. I bet.

A. It's a huge problem all over Stanford University for absolutely every job. There is access to housing, but not all those who apply get it. Several of our fellows have lived in subsidized housing now and in the past. It's still not cheap, but it is cheaper than market-rate housing. The on-campus housing for staff and faculty is actually very nice.

Q. And how about travel funding or other professional development funding?

A. Fellows get a total of $3,800. $800 from the university for professional development but there are a lot of constraints on how we can use that money. The other $3,000 can be used for conferences, books, hiring a research assistant. And everyone uses that money up.

Q. Does that include, in their second year or possibly in the third year, market-related expenses?

A. Yes, and frankly, the whole 3,000 bucks is sucked up by AALS.

Q. Are fellows expected to live in or around Palo Alto? Obviously, there are teaching obligations, so it is tough to live too far away, but if someone wanted to commute, could they?

A. I wish I could lie and say they had to live here, but that's not the case. A number of our fellows commute from the East Bay. It's super difficult, because I do think it's important, for both the teaching goals and the scholarship goals, to be on campus regularly. And I do require that they come to campus regularly, but that doesn't mean five days a week. That usually means something more like three days a week.

But we can't expect fellows to live close to Stanford, or we would be closing the fellowship to all but those who are independently wealthy or who owned a software company before they went to law school, or something. Housing prices are too high in the Bay area right now.

Q. Let’s turn to the fellowship itself and how to make the most of the fellowship year. I'm going to start with the intellectual life of the fellowship. How often do the fellows get together and in what capacity? For example, is there a fellows' workshop at Stanford?

A. The Grey fellows are a pretty collaborative group, working together on both teaching and also gathering informally to discuss their scholarship. In addition, there is a fellows' workshop that includes not just the Grey fellows, but also Stanford Law School’s fellows in the centers for constitutional law, law and biosciences, law and history, CodeX, the Rock Center for Corporate Governance, and the like. In addition, our Dean just appointed an Associate Dean for Research and Intellectual Life who will organize informal workshops with fellows, junior faculty, and JD/PhDs.

Fellows are encouraged to attend our weekly faculty lunches where faculty, visitors and sometimes folks from outside the legal academy give a talk and Q&A. Faculty lunches provide a key opportunity to ask questions of faculty and observe how professors give feedback to shape and refine the presenter’s thinking.

In addition, for the last five years the law school has sponsored the Grey Fellows’ Forum, a meeting for current and former Fellows to share their work and create an opportunity for the former fellows to get to know the current fellows, who will soon be on the market for a teaching job.

Q. Okay, that's great. Who supervisors the fellows? Who's their direct supervisor?

A. I am.

Q. And when it comes to support for their research, you talked about the assignment of a mentor. Who sits down and talks through their papers with them?

A. Two members of the faculty LRW committee advise fellows about their research and help match fellows with faculty who share interests. Fellows are encouraged to reach out to other faculty members. It’s good to have two or three faculty who are familiar with the fellow’s work to provide guidance and feedback and possibly be a recommender on the market. Of course, producing scholarship is mostly not a super-collegial endeavor. It takes a lot of sitting down and mulling over your own ideas and putting them down on paper and writing and revising and thinking.

We don’t really assign mentors, other than the LRW committee members. Some marriages don't work all that great so we have to be flexible and persistent to find the right fit.

Q. Mentoring has to be organic, in some ways, at least, right?

A. Yes.

Q. Do you have any special advice for candidates who come in with a PhD in terms of transitioning to legal writing and the norms of legal scholarship?

A. Boy, that’s a good question. Two of our current fellows have PhDs and I will ask them. I usually consider the more difficult transition to be from thinking like an advocate to thinking like a scholar. That is a huge transition and one that fellowship programs help with immeasurably. I will have to think more about the transition that PhDs make.

Q. That's fair. Let's switch over to the teaching side. Obviously, the fellows are teaching in your legal research and writing program. How many students do they typically have at a time?

A. In the fall, they have 30 students. In the winter and spring, they have 18 students. And the fall is hard, because 30 students is a fair number of students.

Q. What is their role, in terms of coming up with the assignments or coming up with the plans for the quarters?

A. I come up with the assignments, which are uniform across the program, and draft a syllabus. We share an electronic work site, where I, former fellows, and current fellows post class notes. I share in-class exercises and teaching ideas, but fellows have a fair amount of discretion about how they teach particular topics. I also give guidance about the kind and amount of feedback we give to students.

Written feedback is our opportunity to shape how students express themselves in a way that lawyers recognize as legal analysis. We provide a lot of formative feedback to students. We also meet with students individually for an hour of individual conferences with in the fall and a half-hour in the winter. No required individual conferences in the spring, but we have to be available for our students and that usually means we meet one-on-one with almost all the students.

Q. And how does that calendar work with the job market calendar?

A. The early October date has been on my calendar since the AALS published it. We might be able to cancel the class scheduled at the end of the week. But we must minimize rescheduling classes, so I hope prospective employers are flexible.

Q. Do they have opportunities to teach classes outside of the legal writing program?

A. Not really. An occasional exception is made, but for the most part, no. Our workload is heavy and the only time that it really makes sense is after the fellow has a job. But beforehand given the demanding nature of the teaching aspect of the work, nearly all other time should be spent on scholarship.

Q. Do you have a sense of the breakdown in time for fellows--what percentage of their time they tend to spend on teaching, on their own research, on other things, if there are any in the fellowship?

A. Yes. It's super lumpy. The summer is mostly available for fellows’ scholarly work, other than roughly two weeks of time devoted for getting ready for the fall quarter. In the nine weeks of the fall quarter, teaching is pretty nearly a full-time job. If someone already has a research project that's going, there might be some time when fellows can research and write. In other words, teaching in the fall is a full-time job and to attend to the scholarly agenda as well takes more than full-time effort.

Grading for the fall quarter is over by the middle of November, so fellows can focus on scholarship from then until the first full week in January—about 7 weeks. Fellows will need to spend about a week preparing for the winter quarter, and most everyone will take a week or so of vacation time then, but that leaves 4-5 weeks for scholarship. And then, because we have smaller classes in the winter and spring, I do think that it's possible to spend an average of 25-30 hours a week on teaching in the winter and spring, leaving quite a bit of time for research.

We have a long spring break, because we stop teaching after about seven weeks in the quarter. In sum, fellows have about 12 weeks in the summer, 4-5 weeks over winter break, and 3-4 weeks over spring break, for scholarly activities.

It's possible to get some work done during the term, especially during the winter and spring. But that’s very different from a fellowship where there's no teaching obligation.

Q. Circling back to teaching, what type of training or feedback do fellows receive on their teaching?

A. We have a teaching workshop over the summer. The workshop is different each year. Last year our focus was on looking at interventions to help deal with stereotype threat and how to promote diversity and inclusion in the classroom. This year, we'll focus on how to use classroom time to accomplish our course goals, with a focus on using in-class teaching techniques like how to facilitate a class conversation, how to use interactive exercises in class, how to use a Socratic dialogue, and how to lecture most effectively

I work other university programs to organize these workshops. The university has a robust Center on Teaching and Learning, and teaching is valued and respected, not just at the law school but in other parts of the University. I also often work with folks at the Hume Center—the writing tutorial center—and the Program on Writing and Rhetoric.

Then we each teach an example class, debrief it and talk about what worked well, what didn't work well, how can we improve it. We will also all mark up the same paper and pass it around to make sure we are all looking for roughly the same thing, and get ideas about how to identify analytical and writing problems and suggest improvements.

The length of the workshop varies. It's usually about two weeks or parts of two weeks. This year, we have no new teachers. So, our workshop will be just four days.

When classes are in session we meet about once a week to talk about our curriculum, pedagogy, what classes we are teaching, what problems are people having, that sort of thing.

And then, during the quarter, fellows' classes will be observed by faculty, who then review the class with the fellow.

Q. So, let's take a step back for a moment. If you were talking to a candidate with lots of different options in the fellowship market, how would you try to sell them on the Grey fellowship? Or to ask it another way, what do you think sets the Grey fellowship program apart?

A. Several things set us apart. First, and perhaps most importantly, Stanford's a really, great warm place with a fantastic group of law scholars and a vibrant intellectual life. Fellows' ideas are taken seriously.

Second, if you're interested in writing, not just to communicate your ideas to other faculty members but to write to persuade and to write for a lay audience, you should consider our fellowship. Our program teaches not just the conventions of legal writing, but how to communicate our ideas to different audiences generally.

Third, ours is a more teaching-focused fellowship. If you're not interested in teaching, and there are some law scholars who aren't that interested in teaching, this isn't the fellowship for you. But legal writing is one of the hardest things to teach in the law school. If you can teach legal writing, you can teach anything.

Quite a large number of our recent fellows have won teaching awards in their new academic institutions. Of those 18 fellows who graduated from our program and went on to tenure track positions, seven that I know of have received teaching awards at their law schools. Andrea Roth who's at Berkeley, just got the All-University Teaching Award. Beth Colgan at UCLA got the teaching award for UCLA Law School. Shirin Sinnar, who’s here at Stanford, received the faculty teaching award. Kaipo Matsumura, who's at the Arizona State University College of Law, got a teaching award. Thea Johnson, who's at the University of Maine, got a teaching award. Hillel Levin at the University of Georgia and Brooke Coleman at Seattle University received teaching awards – Brooke three times.

We hire fellows who will be good teachers and who value teaching, and we have a deserved reputation for producing fellows who will be good teachers. I know that's not the coin of the realm, but teaching is increasingly important at law schools. Most law schools care about teaching more now than they did 10 years ago.

Q. Yeah, that's fabulous. So, let's talk about the job market. Who mentors these fellows through the job market process?

A. Mentoring fellows through the job market process starts with those faculty members who have already been in touch with fellows about their scholarship generally, but we also have instituted processes to support fellows in the six months before the AALS hiring conference. Fellows should review their FAR forms, CVs, and research agendas with a couple of different people. One person who is familiar with the FAR forms and knows how to get the right information in a small space, how to make strategic decisions about what you highlight, what boxes you check about geographic preferences, all of that stuff. And then, someone in the fellow's area who knows something about the market. We have an academic prospects committee that can help review those forms.

Like some other schools, Stanford also has a Moot Fest—days set aside to moot job talks, AALS interviews, and callback interviews

Q. So, do they have an opportunity, then, to do a moot job talk?

A. Yes.

Q. Who would attend that – other fellows? faculty?

A. Faculty are designated to attend and fellows can go as they choose. And most fellows do choose, because it's really useful to watch other folks’ job talks.

Q. And do they have the opportunity to do a mock screening interview?

A. Yes.

Q. All right. Do you support fellows who have to go on the market more than once? You mentioned earlier that the fellowship can be renewed for a third year. How does that work?

A. The third year is nearly automatic if performance is good. We don't necessarily extend the fellowship past three years. Occasionally, we've given folks a fourth year if a fellow has had a baby in the middle of the fellowship, or because they’ve been truly exceptional teachers and things just haven’t quite come together to go on the market.

We've had fellows who have gone on the market more than once. It's not optimal. And I say this some from my perspective as the person in charge of the legal writing program. It's not optimal, because going on the market is a distraction from teaching. One of the things I like about the three-year fellowship is it gives fellows a second year teaching, which is usually people's most successful year. The first year teaching is really hard. People don't know the ins and outs of the assignments, the ins and outs of what students know and what students don't know. The last year teaching is also hard, because that's when you're on the job market. So, we don't necessarily support, but in circumstances, we might support someone going on the job market a second time.

Q. Okay. Now, I'd love to talk with you less about Stanford's program and more about the rise of VAPs and fellowships more generally. Obviously, there's a lot of debate about this development. What do you think are the benefits to VAPs and fellowships and what do you think are the costs?

A. The benefit is that we prepare prospective law teachers for the work they will have to do when they get a tenure-track job. As one of my colleagues says, the fellowship—like a tenure-track teaching position—is a both/and job. You have to teach. You have to do scholarship. That's a heavy lift for anybody, and our fellows have demonstrated they can do it.

We also do a great job of getting fellows who haven't been imbued in a scholarly environment to think and write like an academic: what legal academia looks like and how professors and others create an intellectually stimulating environment. Closely related to that, for our fellows who’ve come out of law practice, particularly a social change law practice, fellowships help fellows develop an academic voice and an academic approach to legal questions that is quite different from the lawyerly advocacy voice and approach.

But there are downsides. I worry that the availability of fellowships has made them nearly a requirement and has made obtaining a tenure-track teaching job more costly. Have we just created another obstacle that makes it more difficult for law students to repay their loans? Have we created a market where law schools can pretty much insist that candidates have many publications before hiring? And does this make it harder for low- and moderate-income lawyers to become law teachers? I wonder if we are reinforcing that you have to be a member of a privileged class before you even go to law school, if you're going to be a law professor.

Q. Can VAPs and fellowships help address those costs by opening up the program to candidates from nontraditional backgrounds, or other diverse backgrounds?

A. Yeah, but I think you have to make that decision self-consciously, because it's not going to happen naturally. We have a couple of fellows with PhDs, and I am thrilled to have them. But it’s problematic if fellowships only or mostly hire fellows with both law degrees and PhDs. Then you’ve created a huge barrier to entry into legal academe, because law schools will insist on it.

Q. You may have seen on the blogs that there’s a perception VAPs and fellows receive so much help on their scholarships, that it can be hard for hiring committees to know how much of the work and ideas come from the VAPs themselves and how much comes from the school.

A. Yes, I’ve heard that’s a concern, but I don't think it's a problem, at least not at Stanford. I just don't think a faculty member who would ever take that kind of responsibility for somebody else's work.

Q. Last question. Given that time is a zero sum, time spent in a fellowship is time that's 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. We've resolved that problem by hiring people who have substantial law practice experience. Lawyers with practice bring so much to our students. I'm not a big fan of the trend of hiring exclusively PhD's on law faculties. That will increase the divide between law practice and legal scholarship, entrench a certain disdain that some law professors have for law practice, and make it less likely that students will learn the skills and ways of thinking that they will need to be excellent advocates.

We've successfully hired and promoted fellows with law practice experience whose scholarship is informed by that experience and who are in conversation with law as it's practiced and as it affects peoples’ lives.

But I don’t mean to say that a PhD doesn’t have a place in a law school. I’ve heard lawyers and judges say derogatory things about legal scholarship that misses the point of the academic enterprise and is blind to the kind of impact that legal scholarship can have, even if it doesn’t touch most lawyer’s day-to-day practice much.

Q. Is there anything else you want to add? For example, anything you want hiring committees or prospective candidates to know about the fellowship? Or anything you just want to pass along about the state of hiring in the legal academy?

A. I want to send a message to hiring law schools that our fellows are really working hard. They have a lot of obligations on their plates in addition to legal scholarship, so they are already accustomed to balancing teaching and scholarship.

Q. Thank you so much for your time today. I really appreciate it.

Posted by Jessica Erickson on July 5, 2019 at 08:47 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (11)

Thursday, July 04, 2019

Must agencies be sincere?

I think that the answer must be “yes.” It is reversible error for an agency to justify a decision with a reason that the agency does not really believe. This rule against pretextual agency reasons is implied by 1) the rule against upholding agencies’ decisions based on post hoc rationalizations, 2) the analogy between agencies and juries in Chenery I, and 3) the role of political accountability and expertise in justifying agency authority.

But Justice Thomas’ dissent in Dep’t of Commerce v. New York gives me a chance to ask (both of) my readers whether or not I am correct. Is Justice Thomas really rejecting my intuition about agencies and pretext? Or is he simply making a much less controversial point about administrative procedure and evidence that the majority does not really question? Your thoughts are especially appreciated, as I am trying to throw together a memo on Dep’t of Commerce for my Leg-Reg students for next spring.

In Dep’t of Commerce, Justice Thomas decried the majority for “an unprecedented departure from our deferential review of discretionary agency decisions” that would, “if taken seriously as a rule of decision, … transform administrative law.” The alleged novelty? “For the first time ever, the Court invalidates an agency action solely because it questions the sincerity of the agency’s otherwise adequate rationale.” On Justice Thomas’ view, so long as agencies give “a reasoned explanation for his decision” in the administrative process that has sufficient support in the administrative record, the courts ought to uphold the agency, regardless of the agency’s sincerity. Nothing in Arbitrary and Capricious review under section 706(2)(A), according to Justice Thomas, “instructs the court to inquire into pretext.”

I cannot see how these statements, taken literally, could possibly be correct. My intuition is that agency officials’ findings must be sincere in order to sustain their decisions, meaning that those officials must really, actually believe the statutorily appropriate reasons that they cite for their decisions.

Here are three reasons — maybe just my own post hoc rationalizations — for this intuition.

First, consider Chenery I’s rule against courts’ upholding agency decisions on the basis of reasons that were not articulated in the administrative record. Justice Thomas quotes the relevant language from Chenery I: “[t]he grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.” Requiring agencies to articulate reasons in the administrative process, however, makes sense only if the agency really, actually believes those reasons. Otherwise, post hoc rationalization in a brief written up by DOJ lawyers ought to serve as well as the agency’s own “pre hoc rationalizations” in internal agency documents. The problem, in either case, after all, is rationalization — i.e., insincere reasons that are not truly motivations causing a decision.

Second, consider Chenery I’s analogy between agencies and juries. “Where the correctness of the lower court's decision depends upon a determination of fact which only a jury could make but which has not been made,” Frankfurter observed, “the appellate court cannot take the place of the jury.” Likewise, “[i]f an order is valid only as a determination of policy or judgment which the agency alone is authorized to make and which it has not made, a judicial judgment cannot be made to do service for an administrative judgment.” This analogy suggests the insufficiency of pretextual reasons as justifications for agencies’ decisions, because juries cannot support verdicts with pretextual reasons, even if those verdicts are supported by substantial evidence in the trial record. Imagine, for instance, that a jury were to deliver a verdict against a defendant because they learned (say, by way of cell phone Google searches) that the defendant was an unpleasant, disagreeable person. Assuming that unpleasantness and disagreeability were legally irrelevant to the question being tried, the jury’s basing their verdict on such improper considerations would be reversible error, even if there were ample grounds in the trial record allowing the jury to rule against the defendant for other, legally relevant reasons.

Third, consider the justification for agency power in either or both expertise or political accountability. Neither expertise nor political accountability can be advanced by insincere reasons. An expert that offers an opinion that the expert does not really believe cannot confer any authority on that opinion by virtue of his or her endorsement of it. Consider a homely analogy: Suppose that some doctor tells you that you do not need to lose weight in order to avoid a heart attack, citing some study suggesting that people with your body-mass index are not at higher risk of coronary problems. If that doctor then later informed you that she did not really believe the study, then the value of the doctor’s endorsement would evaporate. Of course, the doctor’s insincerity would not undermine the value of the study itself, but you could read the study yourself without paying the doctor’s fee. To the extent that the doctor’s opinion was supposed to confer additional weight on the study, that opinion becomes weightless the moment that doctor herself states that she does not actually believe it. The same goes for political accountability. If the point of reason-giving is to give voters the opportunity to evaluate the real reasons for an agency’s decision, then pretextual reasons undermine such political accountability, because voters cannot see the real reasons hidden behind the pretexts.

The case against upholding agency actions based on pretextual reasons, in short, seems to me overwhelming. I am inclined, therefore, to give a charitable reading to Justice Thomas’ dissent. He cannot really be arguing that pretextual reasons suffice to justify an agency action. He is instead arguing that courts must adopt a super-strong presumption against inferring that agencies’ stated reasons are pretextual.

It is hard to disagree with this basic evidentiary assertion — so difficult, in fact, that I do not think that the majority disputes it at all. Chief Justice Roberts simply states that there must be some limit to even the strongest presumption of sincerity. The analogy to juries, again, is helpful. Ordinarily, lawyers cannot challenge a jury’s verdict by demanding discovery on the jury’s internal deliberative processes, because there is a super-strong presumption that the jury bases its verdict on the judge’s instructions on the law and the trial record. If, however, jurors’ misconduct (say, decision-making based on legally irrelevant facts discovered through Google searches) comes to light through, say, post-trial interviews of individual jurors, then that misconduct can be the basis for further inquiry. If further inquiry reveals that, yes indeed, the jurors all relied on a Google search of irrelevant matter to reach their verdict, then the court can order a new trial based on such misconduct.

Likewise, courts do not ordinarily allow extra-record discovery into an agency official’s thought processes when reviewing agency action. But if the record itself indicates that the stated reasons were not the agency’s real reasons, then the court cannot shut its eyes to record evidence of pretextual reasoning that is staring the court in the face.

The majority opinion, so far as I can tell, accepts the super-strong presumption that Justice Thomas’ (charitably reconstructed) dissent demands. So I am at a loss as to how the majority opinion “transforms administrative law” as Justice Thomas alleges. But I am counting on you, gentle reader, to set me straight by explaining to me (and my students) what I am missing.

Posted by Rick Hills on July 4, 2019 at 03:49 PM | Permalink | Comments (5)

It's the district court order, not the SCOTUS affirmance

On the eve of Friday's hearing on the next steps in the census case, more thoughts on nomenclature: The concern about the should not be framed as "The President is disobeying a Supreme Court decision."* The concern should be framed as "The President is disobeying a court order."

[*] Decision is an imprecise word, in any event. The court issues a judgment/order and the court issues an opinion explaining that judgment. I suppose a decision encompasses both of those. But when the judgment/opinion distinction matters, as it does, the specific words are preferable.

The key is that an injunction, entered by the district court, is in place and prohibits the printing and use of a census form with a citizenship question. That order prohibits the government from proceeding with a census containing that question and that order is what the President, Commerce, et al. violate if they proceed with the question.

That the Supreme Court affirmed the district court injunction is beside this point. SCOTUS affirmance means the government has nowhere left to turn within the judiciary. But it does not add greater force to the district court's injunction. Government officials violate the order by proceeding with the census-with-citizenship-question--whether they had proceeded the day before SCOTUS affirmance or the day after SCOTUS affirmance.

Posted by Howard Wasserman on July 4, 2019 at 12:29 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Independence Day is not military

The President has added military elements (including tanks that may damage the bridges into the district) to the Independence Day celebration on the National Mall. Many argue that this reflects the ostentatious military parades staged in the former Soviet Union, North Korea, and other authoritarian regimes trying to convince their people and the world of their power and greatness (which they usually lack in reality).* Unfortunately, these are the governments and leaders the President likes and respects and wishes to emulate.

 [*] As Tom Nichols puts it in The Atlantic, Trump "has blown through the romance of Bastille Day and past the stodgy opera of the Soviet May Day reviewing stand, and is now squarely in the North Korean 'Because I feel like it' mode." 

I want to offer a different criticism: A  military display does not reflect what we commemorate and celebrate on Independence in the U.S. The signing of the Declaration was an expressive and political act. And it was nominally grounded in theoretical and philosophical terms of consent of the governed, the law of nations, the purposes of government, and human rights--all decidedly non-militaristic ideas. This holiday should not be celebrated in militaristic terms because it does not mark an historic military action.** I reacted the same way several years ago when the m.c. at the small-town celebration I attended announced that the day was about the men and women in the military.  The evolution of the world from 2011 to 2019 can be seen in the evolution of this militaristic conception from the uninformed remarks of the speaker at a celebration at the Delaware beach to the President commandeering the Capitol concert and fireworks for his own display of military force, while threatening to ignore court orders.

[**] France's historic act of independence was a military event, so it makes some sense to celebrate with a parade. The equivalent for the U.S. might be commemorating Yorktown, the culmination of the military force that was necessary to secure what we mark on the 4th of July. But we do not do that. Or it might be Lexington and Concord, somewhat analogous to the storming of the Bastille. But Boston celebrates that by running a long race and playing a baseball game.

Rather than tanks and planes, the best move would be to return to Mark Twain's suggestion that public celebrations include a reading of the Declaration.

Posted by Howard Wasserman on July 4, 2019 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

Wednesday, July 03, 2019

More action on the census (Edited)

The citizenship-question case is heating up, following a tweet from the President denouncing as fake news reports that the administration had stopped pursuing efforts to place the citizenship question on the 2020 census. This despite DOJ attorneys having represented that fake news to plaintiffs' counsel and the district court as the government litigation position. This did not sit well with Judge Hazel (D.Md.), who held an on-the-record telephone conference to find out what is going on (as was the attorney for the government).

Judge Hazel questioned whether the government attorneys were speaking for their client at this point. He responded skeptically to the plaintiff's suggestion that he enjoin government officials (presumably including the President) from tweeting or otherwise speaking contrary to the government's litigation position or to requiring the Census Bureau or Commerce Department to publicly counteract any contrary tweets from the President.

The court gave the parties until Friday to submit either a stipulation that the citizenship question will not appear on the census or a scheduling order for litigating the equal protection issues (denying, with a sharp "no," the government's request to have until Monday). Meanwhile, Judge Hazel confirmed that the injunction prohibiting the government from printing questionnaires with a citizenship question remains in place, meaning the President is flirting with ignoring (or ordering underlings to ignore) a court order. On the other hand, government attorneys suggested they may go back to SCOTUS for a motion "clarifying" (or "undercutting," from the plaintiffs' standpoint) the Court's remand decision.

The court declined to do anything to get a firmer answer on whether June 30 (last Sunday) remains the drop-deadline by which the government must have the census form finalized (as the government has insisted throughout the litigation-he suspected "we're not going to get a useful answer to that question." But the court made clear that he did not blame the attorneys for this confusion.*

[*] Another way departmentalism remains in check, at least with a normal President. DOJ lawyers do not like getting yelled at when the executive officials they represent go off the rails. With a normal President, the attorneys can try to exert some control over the client. Or, with an abnormal President, they could resign or refuse to carry out his inappropriate wishes. Neither is happening here.

Posted by Howard Wasserman on July 3, 2019 at 08:58 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Judicial departmentalism and overbroad injunctions in the news

First, the Fifth Circuit reversed the contempt citation against a Carmen Alvarez and her attorneys for attempting to enforce the Department of Labor's overtime regs in a private action following a universal injunction prohibiting DOL from enforcing those regs in an action brought by Nevada and other states. The court held that there was no privity between DOL and Alvarez or her lawyers, because there was no evidence of an express or implied relationship among them that is necessary for one party to adequately represent the interests of another. The court stated that Chipotle's theory that "DOL represents every worker’s legal interests through its enforcement of the FLSA so as to bind every worker in the United States to an injunction where the DOL is the only bound party lacks authoritative support." Like Title VII, the private right of action under labor laws and regs leaves room for private persons to claim injuries and remedies distinct from those established in government enforcement.

Second, Texas GOP Representative Chip Roy took to Twitter to urge the President and the Commerce Department to ignore the lawyers "Completely. Print the census with the question - and issue a statement explaining why - “because we should.” Done." Such action could not be defended as judicial departmentalism, which allows executive disregard of precedent but not particular orders in particular cases; those most be obeyed unless reversed or modified. The President, the Commerce Secretary, and the other federal officials involved would be violating a court order prohibiting the use of the citizenship question* and would be subject to contempt and contempt sanctions for that action.

[*] Another example of indivisible remedies, giving an individual injunction universal scope. The government cannot print or use multiple census forms, so an injunction protecting individual plaintiffs spills over to protect everyone.

Posted by Howard Wasserman on July 3, 2019 at 07:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Tuesday, July 02, 2019

Bill of Rights Equivalency

In Knick v. Township of Scott, the Supreme Court overturned one if its precedents about the manner in which property owners may bring a claim under the Taking Clause. Without addressing the merits of that decision, I want to talk about one aspect of the Court's rhetoric on the Bill of Rights.

At one point, Chief Justice Roberts criticizes the Court's prior decisions as relegating "the Takings Clause 'to the status of a poor relation' among the Bill of Rights." Later he says that the Takings Clause is being restored "to the full-fledged constitutional status the Framers envisioned when they included the Clause among the other protections in the Bill of Rights." At another point he says that the rule the Court adopts in his opinion "is as true for takings claims as for any other claim grounded in the Bill of Rights." And so on.

All of this assumes that the provisions of the Bill of Rights stand on an equal footing. Why is this assumption valid? As I explain in my book on the Bill of Rights, there was no such assumption when they were ratified. While Bingham did assert an equivalency for the first eight amendments with respect to incorporation, that point does not carry you too complete equivalency. It is fair to say, though, that we do tend to think of the Bill of Rights as a set with the implication that they should be treated equally. They are still not all treated equally, of course, but departures from that principle are getting harder to justify. (The incorporation of the Execessive Fines Clause this past term is another example.) That fact has important implications for Second Amendment jurisprudence, as we may see next Term.

Posted by Gerard Magliocca on July 2, 2019 at 08:59 AM | Permalink | Comments (4)

Monday, July 01, 2019

In-Class Exams Are Probably Wrong

I enjoy Malcolm Gladwell's podcast on Revisionist History. One reason why is that he sometimes talks about the law. Last year he interviewed Michael Stokes Paulsen for an episode. This year he's done one with Bill Henderson. The latter was a critique of the LSAT and law school exams with short time limits. 

I've long been bothered by the way law school exams are administered. Why should there ever be a closed-book exam? And why should you only get three hours for an exam? Law is complicated and almost always involves research. Neither of these traits are reflected in many law school exams. (And legal questions do not present themselves in a multiple choice format either.) This is why I've always used take-home essay exams for 2L and 3L classes and made all of my exams open-book.

Reluctantly, I've kept my IL exams as three-hour essay exercises. Why? I had two not-so-great reasons. One is that there are some circumstances (especially in a trial) where lawyers must work on tight deadlines. The other is tradition, I suppose. But I've now concluded that I was wrong. From now on, I'm going to make my 1L exams take-home as well. Maybe I'll start a trend. 

Posted by Gerard Magliocca on July 1, 2019 at 10:43 PM | Permalink | Comments (24)

Hiring Posts 2020 - Schedule

An approximate schedule of law school hiring posts follows, based off the dates of the release of the first FAR distribution and the AALS conference . 

Wednesday, July 10: Hiring committee post. (Last year's post here.)

Thursday, August 8: FAR distribution 1 released.

Thursday, August 15: Law School Hiring and Clearinghouse for Questions post (reporting interviews and callbacks on a spreadsheet, and collecting questions and answers in the comments; last year's post here).

Thursday, October 3, through Saturday, October 5: Hiring Conference.

Monday, October 21: VAP post (last year's post here).

Late February/early March: Begin entry level hiring report data collection.

Originally published on July 1, 2019. 

Posted by Sarah Lawsky on July 1, 2019 at 10:00 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (2)

Interview with Daniel Markovits on the Fellowship with the Yale Center for the Study of Private Law

I am excited for the next post in my series interviewing VAP and fellowship directors.  This interview is with Daniel Markovits, the Guido Calabresi Professor of Law at Yale Law School and the Founding Director of the Yale Center for the Study of Private Law.  The Center typically has one fellow at a time who plans to go on the law teaching market.  An edited transcript of our conversation is below, and I have invited Daniel to respond to any questions in the comments.  Thanks, Daniel, for participating in this series!

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

Q. Do you mind telling me your role with the program?

A. Yes, I'm the director of the Center and founded it a couple years ago. I’m involved in effectively everything that the Center does.

Q. And how many fellows does the Center typically have at a time?

A. We have one stipendiary fellow at a time. And that's a full time post. We have on occasion had nonresident associates or fellows of one sort or another, but that's very informal. We may be expanding that, but that's not a way for someone to fund a year or even spend full time for a year at Yale. It's rather a way for someone to come through Yale for a couple weeks, engage in some activities, some research, and then move on.

Q. The full time fellow position, is that a yearlong position, or two years?

A. The appointment is for a year. It's renewable by agreement of me and the fellow. Our first fellow, Sadie Blanchard stayed for three years and is now a professor at Notre Dame. Our second fellow, Przemyslaw Palka is finishing his first year this year and will stay on next year.

Q. Is it fair to say that it's somewhat the norm to stay for longer than the year?

A. Yes, I suppose that's right. The idea behind the fellowship is to take people and get them in a position that if they want to go on the US-American law teaching market, they will succeed. I take people from a wide variety of backgrounds, who are not always the most traditional candidates for academic jobs. So often it takes a little bit of time for people to develop their research in the way needed to succeed.

Q. Before we get into the application process and how you actually select the fellows, I'm wondering if you can tell me just a little bit more about the Center itself. Obviously, it focuses on private law, but what do you mean by that? And what does the Center itself do?

A. The Center focuses on private law broadly understood: contracts, torts, property (including intellectual property), commercial law, and alternative dispute resolution. The idea behind the Center is that there's been really a massive growth in broad-ranging, methodologically diverse engagement with those subjects in the past ten years in the US-American Legal Academy. Where law and economics dominated those subjects for many years, now law and sociology is becoming more prominent, as are law and philosophy and legal history. The Center is meant to be a big tent place where people who favor a wide range of methods can come together and discuss shared interests.

We have, every year, a variety of events ranging from academic seminars to conferences. We also every spring host a seminar in private law, which is both a class and a speaker series around a theme. This year's theme was the way in which information technology—especially big data and algorithmic processing—are changing the basic formal structure of legal relationships. Next year we'll focus on private law and inequality, so we jump around. That's the idea.

Q. I'd love to take the fellowship and basically go through it chronologically from the application through the job market. When does the program start accepting applications for the fellowship, assuming that it is a year in which you want to hire someone for the next year?

A. In years in which we want to hire, and we've done this only twice, we tend to post something around November/December of the previous year. So we then get applications and we don't actually have a particularly formal schedule. In the past, we’ve set an early spring deadline for receiving applications. The applications themselves usually consist of a letter, a CV, a law school transcript, samples of writings, and names of references. Reference letters are fine, but they are not required at that stage.

Q. And what does the timeline look like from there? How many rounds of interviews are there?

A. Typically, the existing fellow and I will filter through the applications, interview some number of people, perhaps five. Those interviews can be on campus in person if it's convenient, but we cast our net globally. So for example, the person who is now the fellow has a Polish law degree and was, before being here, a PhD candidate in Italy. So those interviews were conducted via Skype.

Q. And are the fellows typically people you knew before this, or these are people who come in vis-à-vis the application process?

A. I knew neither of the two people I've hired before this. I don't think I'd ever had a conversation with either.

Q. And when you interviewed them either in person or on the phone, how long were those interviews? What did they tend to focus on?

A. The interviews can be up to an hour. It depends a little bit on how the conversation goes. Part of the interview is a chance for me to describe what the fellowship involves to make sure that the fellows actually want the job that's being offered. Part of it is for me to get a sense for them, and then part of it also, the largest part, tends to be a discussion of their work and their research. So before interviewing people, I will have read effectively all of their scholarship, and we'll have a conversation about their papers.

Q. How many applications have you received in the past for the fellowship?

A. I can't remember. I think more than 10 and fewer than 100.

Q. Okay.

A. So that's not very helpful, maybe 30, but I'm not really sure is the truth of the matter.

Q. And when you're looking at their scholarship, how much scholarship do they tend to have? In other words, are these people coming in with full papers that you're reading? Are they coming in with ideas for papers? How far along are they typically?

A. They tend to have full papers. Some of them have a lot of papers.

Q. Is that because they're coming out of a PhD program?

A. They're coming out of a PhD program sometimes. Sometimes they're coming out of a law degree and maybe another fellowship. But those sorts of credentials, and the quantity of writing that they produce, are not required to get the job. I'm looking for people who are talented rather than traditionally credentialed.

Q. What do you mean by that, not traditional?

A. Well, I would like the fellowship to be a pipeline into university professor jobs for people who maybe didn't go to Harvard or Yale College and Harvard or Yale Law School. And I'd like to get people who have broad ranging interdisciplinary interests of a sort that maybe means it takes them a little longer to get going as scholars. It's not that I have a fixed set of rules about whom I'll look at. Every year I interview a couple people who have completely conventional credentials: three articles already finished, an elite law degree, and maybe a PhD from some affiliated discipline. But it's not that that's a requirement for getting a serious look at for the fellowship, and both of the people I've hired so far don't quite fit that profile.

Q. Are you looking for people who have international law backgrounds?

A. That’s not essential at all. But it is true that there is a conversation around private law subjects that's going on both in the Commonwealth legal community and in the European legal community (and therefore also to a significant degree in Latin America and parts of Asia, which have adopted either the Napoleonic code or the German civil code). I would like that conversation to have a bigger footprint in the US. So it's attractive to me if people have the expertise to engage globally. But it's also the case that I could easily imagine appointing as a fellow somebody who has a purely US-American scholarly profile.

Q. What are you expecting in terms of a research agenda? How developed do you want that to be or do you expect that to be?

A. I'm a little dubious of formally developed research agendas in applications because even if people think they know what they're going to do, they're not going to do that thing once they start doing it.

Q. Right.

A. I’m looking for people with ideas, and I'm looking for people who I think have the ambition and the discipline required really to work at those ideas. It's fine if those ideas are in conversation and come out in bits and pieces slowly and in an inchoate form. That's great. Those can be some of the best candidates.

Q. Are you looking for practice experience? Does that matter in the application process?

A. Along every dimension, more is better than less and better is better than worse. So practice experience is a plus just as scholarly production is a plus just as creativity is a plus. But it's not that I have a distinctive category that needs to be checked off or ignored.

Q. And would you say the same about PhDs? Do you have a preference in the process for people with PhDs?

A. Certainly not for the credential itself. People who have PhDs often but not always have learned certain things that make them likely to be effective scholars. But the credential itself doesn't matter to me. The first person I hired did not have a PhD.

Q. Do you make any special efforts to hire candidates from diverse backgrounds?

A. Yes. I think it's important that the fellowship be a way for all people to get into legal academia, and it's important to look for promise. Also, I'm always on the lookout for somebody who for some reason or other I think has a brighter future than the market has recognized.

Q. You talked a lot about looking for candidates without necessarily those traditional markers we might expect law professors to have, Harvard, Yale, Stanford degree and the like. How can somebody without those qualifications stand out in the application process? What advice would you have for someone who didn't go to those top three or five law schools, who didn't have an elite clerkship et cetera?

A. I think it depends on the kind of job you're applying for, but if you're applying for what is effectively an academic fellowship, which this mostly is, I think the best advice is to identify your best idea or two. Do it in conversation with teachers that you've had, and get a very crisp statement of that idea. It can be a page or more. Get that into the application so that you emphasize that you're a live wire and that you're creative. That's actually pretty rare, and if someone is paying attention can easily outweigh mountains of traditional credentials.

Q. Yeah, I agree. I think the same thing on the hiring side of the entry level market. So am I right that the fellow does not have any teaching responsibilities?

A. Basically you're right. The fellow helps me to design and administer the seminar in private law each year. It meets every week over the spring term. It has a class component which people enroll in for credit. And then it has a speaker series. If it meets, let's say 14 times over the course of the semester, maybe seven of those sessions are outside speakers, and seven are taught internally. The fellow helps pick the theme. And I try to pick a theme that the fellow will be interested in. The fellow has substantial say over what the themes are.

When Sadie Blanchard was my fellow, she was very interested in arbitration and so we had, for example, a theme on dispute resolution outside the state. Przemek right now is interested in both technology and inequality, and so the themes this year and next reflect his interests. The fellow will help to identify who the speakers should be, help to identify what texts we should teach, and help to manage the invitations et cetera for the seminar. Finally, the fellow helps to run the actual visits. There's always a dinner when the speaker comes, for example, at which faculty and students continue to engage the speaker and her paper. That takes some running.

But the fellow is not required formally to teach any of the sessions, although on some occasions the fellow might take over a class if she or he really wants to.

Q. In the application process, are you trying to identify people who might be good at helping you with the seminar?

A. Yes. The nature of the fellowship is that the fellow spends between a third or a half of her or his time running the Center, and running the seminar is part of that. And then the fellow spends between a half and two-thirds of her or his time on the fellow's own research. So I'm looking for people who I think have the administrative capacity to do the ministerial part of the job and also the intellectual convening part of the job. For the purely administrative stuff (hotel rooms and travel arrangements and so on), I have an assistant and the other planners at the law school who can help.

But there's a part of the job that involves getting scholars and other intellectuals together, making sure that they have a common theme to talk about, being sensitive to their interests and picking texts that they will find interesting, those sorts of things, which requires a kind of intelligentsia hosting capacity. So I'm looking for that also.
And then on the scholarly side, I'm closely engaged with the fellow's work all throughout the fellow's time. So we meet, I read drafts of the fellow's work. I comment on them. We have a back and forth. I’m therefore also intensely interested in scholarly engagement.

Q. So far, we have talked about the ability to help you with the seminar, their ability on the scholarly side, are there any other criteria that come into the application process for you?

A. I suppose maybe one other is that the fellow also works to connect the students at Yale Law School to the current state of the discussion in private law both among scholars and in the profession. And so it's helpful for the fellow to be the kind of person who can pretty quickly get a sense for what will be interesting to the students and how to frame things so that the students will engage them.

That makes it easier for someone who has a U.S. J.D. to do the job because non-U.S. law schools are very different from U.S. law schools. But Przemek, who does not have a U.S. J.D., has been very quick at figuring out how the students work. Also there's an active group of fellows and others around Yale Law School across disciplines and Centers and programs. They talk to each other, and so there's a way to very quickly get embedded in the community, which also helps the fellow to understand what people in that community are interested in.

Q. Let’s shift away from the application process and talk about some of the more nitty gritty details, some of the terms and conditions of employment. Are you comfortable sharing how much fellows are paid per year?

A. Probably not because that's a law school wide matter, and I don't know that I have the jurisdiction as it were.

Q. Fair enough.

A. I can tell you that they are paid competitively and more than enough to live comfortably in New Haven. It's not graduate student life. It's a living wage as a young professional in New Haven.

Q. And do they receive health insurance?

A. They get full benefits, yes.

Q. Okay, and is there university or subsidized housing at all in New Haven?

A. There is university housing. I don't think they get preference, but I'm sure that if they wanted to get into some kind of university housing, they might be able to. But the New Haven housing market is dominated by non-university housing.

It's not hard to get perfectly, in fact, quite nice housing at rents that the fellow's salary makes it easy to pay.

Q. That question may matter more for New York fellows, I think.

A. New York, San Francisco, Boston, that may be a different matter.

Q. Exactly.

A. And the healthcare by the way, I assume, they get the healthcare that the university offers. It may be you have to pay for some of that. I don't know if there's a subsidy. I can't tell you exactly what the arrangement is.

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

A. The Center has a budget, which includes a budget for travel and professional development for people associated with the Center. Effectively at my discretion, the fellows can use some of that funding. Both Sadie and Przemyslaw have used it, and I anticipate future fellows could also use it. But it's not that they get an independent discretionary budget that they can simply allocate however they want.

Q. And do they have the ability to hire research assistants?

A. It hasn't come up.

Q. Okay.

A. I don't think it would be impossible. Certainly the Center hires research assistants. And some of the Center's work is related to the fellow's work. I don't know if they would be able to hire JD RAs just for their own work. We'd have to talk about what the project was and why. I should say that if I can’t give firm answers to all of these questions, it’s because this fellowship is less formal or bureaucratic than some others. It's a collaborative arrangement in which the idea is to create circumstances in which the fellow can do their work effectively. My ambition is that no intellectually or academically reasonable request will be refused. It's not that I have a set of bureaucratic rules and institutions in place that can identify exactly what those requests might be or what categories are in or what categories are out.

Q. I think that's important for fellows to recognize. You go to a larger fellowship program, there might be more of those formal rules because there might be 15 fellows.

A. Right, exactly. And those can serve to the fellow's advantage and to the fellow's disadvantage. It goes both ways.

Q. And how about when they actually go on the law teaching market? Are they reimbursed for expenses related to that?

A. I don't think Sadie was. I think probably not. It's not that I couldn't imagine it in an appropriate case. My sense is that the expenses were not that large because we're close to Washington. And if you get fly outs, the host universities reimburse you. But I imagine if a fellow had a family, and the fellow's salary were less ample given her or his costs, it's not inconceivable that I would try to do something. I don't know what the law school's rules would be. But it's not that they have a formal line for that.

Q. Okay. And do they have to live in New Haven, or would it be possible for a fellow to live elsewhere and commute in for say the seminar?

A. I don't want to make a rule either way. But for the fellow to succeed both for the Center and for her own agenda, it's essential that she is a full member of the intellectual community of Yale Law School. It's not that that's impossible if you commute, but it's hard. We have lots of evening events. We have lots of weekend events. And it undermines the point of the thing if you can't go to those.

Q. Let's talk about how to make the most of that fellowship year, which in some ways you were leading into. I'm wondering about the broader community of fellows and perhaps law PhD students at Yale. Is the fellow in your Center connected with those other fellows, and if so how?

A. Yes, the fellow has always been connected. There are various ways and it depends a little bit on the fellow's particular interests. I'd say that there are at least four communities that the fellow might be connected to.

Q. What are those?

A. There's the community of fellows, which ranges from the Center for Private Law, the Center for Corporate Law, the Health Law Center, there's a Global Challenges Center, there's a law and philosophy fellow sometimes, there's the Information Society Project, which has a lot of fellows. And that community is quite lively and organized, although informally, and pretty easy to get into and connected to lots of intellectual and social events.

Then there's the LLM, JSD, and PhD community, which is the non-JD students. The fellows have been pretty connected to that community also. There's some overlap between that community and the fellowship, but it's only a partial overlap. And the degree to which the fellows are connected to that community depends a little bit also on the fellow. That tends to be a very international group.

And if the fellows themselves are international, then they often make connections there.

Then there's the JD student community. Our JDs are probably older than average, so we have a lot of JDs who are over 25, and many with work experience or PhDs. So it's pretty natural for the fellows to connect to some parts of the JD community also. We also have a lot of JDs who want to be law professors, so if the fellows want to be law professors, that's another set of shared interests.

And then there's the faculty. The fellows also work with faculty members other than me in various ways and also come to faculty seminars.

I think it takes work to integrate to any of those groups. The paths of connection tend to be informal and require some initiative, rather than being formal or mandatory. But I think all four groups are pretty open and pretty easy to get plugged into if you want.

Q. And following up on the faculty workshops, are the fellows allowed to go to Yale's other faculty workshops other than the one that the Center runs?

A. I think the answer to that is yes.

Q. Do they typically?

A. I think yes. I see Przemek at the lunchtime workshop that the Faculty holds on Mondays. The Law School also convenes several other regular workshops: the Legal Theory Workshop;. the Law Economics and Organizations Workshop; the Legal History Workshop; the Human Rights Workshop. When I go to those, I obviously don't go to every one of them every time, I see Przemek at those also. So the answer is sure they're welcome to come. But those are all read-ahead workshops. So there's a trade-off between how many you go to and other things in your life.

Q. Would it be normal for fellows to ask questions at those?

A. More normal at some than at others. It would not be impermissible at any of them. But it would be common and frequent at some and infrequent at others.

Q. And you're obviously the supervisor for the fellows, do the fellows have any other supervisors, assigned mentors, anything else?

A. One thing to clarify, I am the supervisor in the intellectual sense. I think formally I'm not sure I'm the supervisor in the employment sense.

Q. Oh, interesting. Who is?

A. I'm not sure who in the law school's managerial hierarchy it is actually. I don't know the answer to that question. But I've taken the view that it's not a good idea for me to be the boss of the fellow in that formal sense.

Q. That makes sense.

A. Because I want a relationship that's intellectual and academic. Other supervisory matters haven’t really come up much, but partly that’s because we structured it this way. In terms of the academic life, I'm probably the fellow's main supervisor. We meet as often as the fellow wants, and I will read many drafts of as much writing as the fellow wants, and give whatever other intellectual help and advice I can with basically no time-budget constraint. In that sense, I’m available to the fellow.

Q. Are they guided toward other mentors at Yale?

A. There's no formal process.

Q. How about informally?

A. If they have work that interacts with some of my colleagues then they're welcome to go contact those colleagues. And in general they have done, but that's up to them and depends on what their interests are. I'm always happy to help make the introduction. It hasn't always been necessary. If they have ideas and are productive... My colleagues will want to talk to them.

Q. Are they given assistance making connections outside of Yale?

A. Yes. One thing that I generally offer the fellows is that if they would like to convene, through the Center, a young scholar's conference on some subject that they're interested in, I will fund it and help put it together and attend or not attend as they wish.

Q. I hope they take you up on that. That's a great offer.

A. This is a way they can become conveners and have power of invitation, get to know people that they want to get to know. And they generally have taken me up on that.

Q. Are they given any other support related to their research? As we have discussed, they have you, the seminar, and these other connections. Is there anything else that somebody who is weighing this particular fellowship should keep in mind?

A. This sounds boastful, but I think our library and our library staff is the best academic library in the world. The staff are incredibly helpful and able and it's generously staffed. It's a huge research law library, and they'll get you other things also. We have things like data librarians and foreign librarians and so on. Most universities have something like this, but we have a lot of it, and they're really good. Not everybody's research depends on that. I’ve known philosophers whose motto is read well, not often. And so for them it's irrelevant. But if you're the kind of person who would like to figure out, I don't know, what's the median sold home price by census tract in Iowa, our library can really help you with that. Or if you want to know what are the privacy terms and conditions that Facebook deploys in every OECD county, our library can really help you with that. That's the kind of thing in my experience if you have to do it yourself can be a month of your life. But if you can get the right expert research librarian to help you with, it can be an afternoon.

Q. I think all of us have made that mistake of trying to go on our own and regretting it.

A. Yeah, exactly. I think that's a big deal. There's also a huge amount going on in the law school. It's open and available to the fellows.

Q. You talked a lot about the help that you provide in terms of individual papers, how about in their research agenda more broadly? What assistance do they get in thinking about their trajectory as a young scholar?

A. Again, that's informal. They get a lot from me talking about it.

Q. How do you approach that task? I ask with a mind toward those of us advising young scholars.

A. I think the critical thing is to figure out what is both an interesting and an answerable question. And then how to formulate a statement of the problem and the way of going about addressing it so that it will be interesting to other people. I spend a lot of time not only with the fellows, but also with JD students or PhD students, with any number of people, who come to me with some set of ideas that they would like to pursue. We talk through what is it in this set of ideas that can be put together in the form of an article that will be satisfying in itself and engage others. I think that's important. I think the other thing that's really important when advising people is that it's their article, not your article.

Q. Always hard to remember sometimes.

A. So they're going to have ways of going about things or beliefs that are not yours. And so you what you need to do is you need to get yourself into the position where, if you thought the way they thought, how would you make it better? That’s what an adviser should aim for, rather than trying to get them to think the way that you think.

Q. Do you have any special advice for fellows who have PhDs in terms of adjusting to the law world, the law publishing world?

A. If they have PhDs not in law, they need to figure out how to simultaneously hold on to the rigor and expertise they've acquired in their PhDs while setting aside the purely sociology of knowledge, professionalized disciplinary preoccupations of those fields.

Q. Is that hard for a lot of candidates?

A. I think it can be hard, yeah. One of the reasons we started the PhD in law was that we felt as though law schools in general are at risk of losing people to other disciplines. Even if they come back into law school, they end up being economists who happen to be interested in some questions that relate to law or where legal knowledge is relevant, or philosophers who happen to be interested in general or specific jurisprudence. But their basic methodology, intellectual style, and way of thinking comes from the other discipline.

Then, if that happens too much, law schools can get Balkanized. The sense of one conversation structured by the world rather than by an academic discipline can slip away. Many of the best things about law schools might disappear.

It's important for legal academics as a group to find a way to hold on to the things that have been really good about legal scholarship while being open to the ways in which getting more tech-ed up and getting better at other disciplines can make the scholarship more rigorous and more substantial. That's not something one wants to lose.

Q. If you had a candidate who had multiple options in terms of fellowships, how would you sell the fellowship in your Center? Why do you think this one has certain advantages over others?

A. I wouldn't try to do that.

Q. Okay.

A. I would think that I would be effectively the fiduciary of the candidate and try to figure out what was best for the candidate. For example, if this were a candidate that I already knew well and was a supporter of, that would be a good reason for them to go elsewhere.

There are lots of applicants. I can fill this post with excellent people. And what I want is for anybody who comes into contact with the Center to feel like whether they became a fellow or not, the interaction was beneficial to them. And that may involve my advising them that I'd love for them to come, but they would be better off elsewhere. I think that's the first and most important thought.

If this was a candidate with substantial strengths intellectually in fields or methods that I'm strong in and weaknesses in places where I'm weak, this would be a good reason for them to go elsewhere. On the other hand, if this were a candidate who had strong reasons to engage not just me and my work, but other traditions or people at Yale Law School, that would be a good reason for them to come to Yale. I think I probably have a comparative advantage over other people who run these fellowships in taking people who are very talented, but not yet formally trained, and helping them get trained and get their ideas into a shape that will make them successful articles. That might be a good reason to come to this Center.

Q. And do you have advice more generally on how to make the most of someone's time in the fellowship whether in your Center or elsewhere? What have you seen candidates do who have really made the most of that time?

A. I think these are basically banal thoughts, but write every day. Structure your day in such a way that you have time that you reserve for scholarship, and resist the urge to treat things that aren't really intellectual work as writing. Blue booking an article you've already written should not count as that time. Reading a book that's interesting and relevant should not count as that time. You should write every day, even if it's just two hours. I think that's one piece of advice.

Another piece of advice is don't be shy about talking to people, particularly people who know things that you want to know. And when you do talk to them, before you begin the conversation, learn about their ideas and be as clear as you can about your ideas and how they connect, because people like to talk about their ideas. They're happy to talk about yours too if they see the connection, but you have to help them see the connection. I think that's another piece of advice.

Also, be thoughtful always about what you're doing to try to get better at whatever you're doing, particularly scholarship. Some sports coach once said, "Practice doesn't make perfect. Perfect practice makes perfect." And so obviously be flexible and willing to change, but have a view about how what you're doing is connected to getting better at what you want to get better at. It's often the case that the best thing in the long run is not to try to do the final product at once. Sometimes if you're writing an article, it's helpful to write five or ten short essays about some of the things that the article will eventually address without ever aiming to publish any of them, just for yourself so you can get clear on things. And then once you've written those, you might write the article.

I think none of this is surprising.

Q. But it's good advice for people who may not have the mentoring.

A. I think that's probably right. The last thing I think is don't be afraid to find things difficult. Wittgenstein said somewhere, "Finding things difficult is a sign of grace." If there's a defect in legal academia I think it's that law professors can tend to make things seem easier than they are, even to the point of being glib. Probably this is because legal scholarship is connected to lawyers whose job it is to appear smooth and confident. But scholarship is really hard, and most of the time you're not going to understand what you're writing about. And even when you make some progress, you're still not going to understand it as well as you want and it will be full of confusions an obscurities and conflations. And that's okay. So accept that and don't run from it and try to disguise it.

Q. I love that advice. I'm the associate dean for faculty development here at Richmond, so I may steal some of that. I like that a lot.

A. Offered for what it's worth.

Q. Let's move over to essentially the end of the fellowship when the fellow is on the job market. What type of mentoring do they receive related to the job market?

A. Yale has a job market regime, which the fellows can plug into in various ways.

Q. Tell me about that.

A. We have something every fall called Moot Camp in which our graduates who are on the market come back to New Haven to give practice job talks in front of multiple faculty members. Now there's not always enough space for everybody to give a job talk. I don't know how it's decided who gives what job talks, but fellows can go to that in various ways. They can also get mooted inside the law school more informally by the fellows community and by me. And I can help arrange colleagues to moot them, I've done that in the past. So there's that kind of advice, that kind of support.
I obviously spend as much time as the fellow would like discussing their application and their strategy and so on and so forth. I'd say those are the main forms of support. I also obviously do all the thing you do to support a candidate when they're on the market, and insofar as the fellows get to know colleagues of mine, my colleagues will do that in the way in which they do it.

Q. Is there a Yale staff member or perhaps a faculty member who oversees the fellows generally who are on the market?

A. I don't believe we have somebody who is specifically focused on the fellows. We do have somebody who is on the sell side of academic hiring.

Q. And what do they do?

A. They give advice to people who seek advice. They help coordinate. Yale puts out a resume book in addition to the FAR form. They gather information from hiring committees, help make connections, help academic referees from inside Yale connect to people who are looking for candidates. We're pretty organized about this. And as you know, we put a lot of people into teaching every year. That's something we're very engaged about in general and the fellow is sort of plugged into that.

Q. Do you personally go over their application materials with them, their CV, their FAR form?

A. Insofar as they want, as much as they want. Yes, but it's not like... I don't demand it. My view of this is that they're adults, and they will make their decisions, but I want them to know that I stand ready to help in any way they want.

Q. I wonder now if you'll just talk to me more broadly about the rise of these VAP and fellowship programs. I'm wondering what you think are the benefits of these kind of programs and then what you think are the costs.

A. I think the reason that they've arisen is a confluence of two things. The first is that law school faculties and legal academia has become both more intellectually serious and much more professionalized. In fact, law faculties now increasingly resemble faculties in the arts and sciences. They're overwhelmingly full of serious scholars who produce scholarship that looks like scholarship in other fields. At the same time, although law school itself has become more interdisciplinary, and probably less doctrinal and black letter, it's still in fact, at least in comparison to graduate school, predominantly a professional education.

If you go through any US-American law school, you come out with knowledge of the basic doctrines of the core areas of law. You know a large set of the canonical cases across law. But you don't come out with a systematic education in the traditions, methods, styles of academic thought about law. You haven't read the canonical scholarly texts in any field. And so there's now a mismatch between the training a JD gives and the form of academic production that a law faculty requires. Something has to fill that gap. A PhD in an allied discipline can fill the gap, or PhD in law, or a fellowship, or a visiting assistant professorship can also fill the gap.

I think that's what's happened. And on balance I think it's salutary. I think the main costs for all the people involved in this setup is that it delays hiring and tenure until people are older. As somebody who has three children and was the primary caregiver of infant twins before tenure, I know that the delay can be stressful. And so anything that pushes people back, if you get your first job at 30, you probably will have your children before you're tenured, and that's just a hard few years.

Q. And obviously we're asking people to move somewhere for some number of years at lower salaries than they'll make as a professor, and that creates its own barriers of entry.

A. That's right. Although, I guess I am more sympathetic to the child and family parts of this particularly because of the gender effects than I am to the financial parts. My sense is that most of these fellowships and visiting assistant professorships, although you don't get rich on them, pay a perfectly adequate wage. I looked into a lot of the fellowships a few years ago when I was chairing a committee. I think most law professor fellows get paid as much as associate professors of history at the universities that they're at. Yes, it would be nice for them if they got paid more sooner. But I wouldn’t emphasize financial hardship.

Q. It is a challenge, moving somewhere for a few years

A. Yeah, and trying to get tenure and have kids at the same time.

Q. Yep, yep. I did that, and I know... that very much resonates. Do you think these programs have any responsibility to try to open up the profession to people from diverse or nontraditional backgrounds?

A. I think that academia has long been much too exclusive along many dimensions. So it is important to create a fairer and more open path into law teaching, and a more diverse and excellent professoriate. Fellowships naturally have a role to play in this. At the same time, there exist reasonable disagreements both about the shape of the problem and about what solutions are best; and people who run fellowships should not simply indulge their personal views, even if they are views about justice.

Q. This is a more mundane question, but if you've been on the blogs, I'm sure you have seen the criticism from hiring committees and law faculties that it is hard to tell, given how much help fellows receive during the fellowship, how much of the ideas and the polishing come from the fellows themselves or how much comes from all of their mentors. How would you respond to that? How should law faculty think about that?

A. I think this is a question of re-equilibrating. For example, it's well known among philosophers that a philosophy professor's work gets worse in the first few years after their PhD for precisely this reason. If you do a PhD under a really world class person who's also a good supervisor, your PhD will benefit enormously from the intense engagement that person gives. And then you go out into the world and you get a little less of that engagement. And it's not that you're totally on your own, but you're more on your own, and so it takes a while. I think that's okay.
One of the things that distinguishes a really good young scholar from a not so good one is the ability to appreciate it when they're getting excellent advice and to take it and implement it successfully. I don't think that there are lots of people going on the market with essays that basically are the work product of their mentors. I don't think that's happening. I think there are a lot of people going on the market with essays that have benefited enormously from serious engagement. But again, part of the skill is to be able to draw that out of somebody else and then know what to do with it.

Q. And then hopefully continue to find those people through your career?

A. You need to find those people and to become increasingly independent as you go along.

Q. The goal is that you will eventually become one of those people, hopefully.

A. Yeah, exactly. Exactly, so it's a longer career arc. But I'm not so worried about that. That's why you talk to people and it's a skill to be able to assess people, that's right, but that's part of the job of the hiring committees. I remember thinking this very clearly my first few years on the faculty here that I spent a lot of time getting trained in how to read a text and assess its quality, but that this is a different exercise from reading a text and assessing the quality of its author. That required a different set of skills. Hiring committees need to cultivate those skills.

Q. Given that life is zero sum in so many ways, time spent in a fellowship is by definition time not spent in practice. What do you think about that trade off, especially when given that we are educating lawyers?

A. I believe that the intellectual virtues of the academic are powerfully valuable to practicing lawyers. I understand that reasonable people could have a different view. But given that I believe that, and I'll say a little bit in a minute about why I believe that, the comparative advantage of time in law school is actually not to get practice ready professional skills, but rather to get the imaginative, analytic, and reflective skills that academics and scholars have. And so what that means is that the best way to train practicing lawyers is not in fact to aim at training lawyers who will be least bad on their first day on their job. That's not the comparative advantage of law schools, and it's not the thing actually that the best lawyers need.

Instead, and this is the thing that I said I'd talk about in a minute, the thing that really good lawyers are good at is, first, understanding the whole situation, figuring out in an orderly way, not in a disorganized and informal way, what everybody's interests are and how they interact and what everybody's entitlements are and how they interact. And second of all, rearranging the categories of the dispute in a way that makes a resolution possible and makes a resolution favorable to the client possible. You get those skills by being more theoretical and more reflective.

For that reason, I tend to think that it's not a bad thing that law professors are increasingly academic and scholarly. And it's not a bad thing for the practice of law.

Q. Anything else you'd want hiring committees or law faculty to know about the state of law faculty hiring? Any other last thoughts there?

A. I don't think so. It's a really hard thing to do. I guess I'd say insofar as possible, we should try to reward creativity and have the guts to do something unconventional. Sometimes it's easier in a risk averse way to hire somebody who's done a highly competent, but conventional piece of work. Hiring committees should resist the temptation. But I don't know if that's actionable advice.

Q. Right. It's something for all of us to keep in mind. Thank you so much for doing this interview with me. I really appreciate it.

A. I hope this was helpful.



Posted by Jessica Erickson on July 1, 2019 at 07:47 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)