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Monday, July 01, 2019

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

Q. 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, VAPS & Fellowships | Permalink


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