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Tuesday, September 08, 2020

Guest Post:Could Pipeline and Non-Residential Fellowships Increase the Diversity of the Academy?

The following is by Matthew B. Lawrence (Emory) and Bijal Shah (Arizona State).

As one of us has noted, our shared field of “administrative law, both in academia and practice, suffers from a lack of representative diversity.”  But this problem is bigger than administrative law, and recent tenure-track hiring trends may be complicating things.  In this short post, we seek to spur conversation about how to improve the diversity of the legal academy, and encourage possibilities that offer a chance to gain some traction.

 Entry-level hiring data (collected here and compiled by Sarah Lawsky) indicates that a fellowship has become a “de facto requirement for entering the profession these days” (to quote Jessica Erickson’s series on fellowships and VAPs here).  83% of tenure-track hires in the report this past year had a fellowship.  Several of the guests on Orin Kerr’s terrific podcast on legal academia see this as a problem.  Chief among concerns about the fellowship-as-prerequisite model is the possibility that it excludes many great candidates, including people of color and women, as well as those who are unable to leave a good, stable job for a lower-paid position with an expiration date (and no guarantee of a permanent job) because of family obligations, income constraints, or other barriers. 

We want to call greater attention to a partial solution that some of us on the administrative law professors list serv have been discussing.  Why not invest in practice-to-professorship pipelines?  One option is pipelines that focus on nurturing candidates of color and women in particular areas of the legal academy with poor representation.  Another is a non-residential program that replicates the benefits of a traditional fellowship without requiring fellows to quit their day jobs.  The two could very well overlap.  Meera Deo suggests schools hoping to promote diversity think “outside the box,” and illustrates her point with the story of one associate dean who found and nurtured a fantastic professor through a bar association.  Legal academia could systematize this approach by building out institutionally-supported practice-to-professorship pipelines, including non-residential fellowships.    

  • The problem: There are many institutional challenges for people of color and women who seek to become professors. One obstacle that the fellowship model exacerbates is the fact that many potential candidates are not in a position to risk their and perhaps their family’s financial security by quitting their jobs for a full-time but temporary fellowship, especially when the academic job market is so unpredictable. 
  • Some solutions: To support potential academics for whom quitting their day jobs is untenable, scholarly fields (like administrative law or health law) should stand up their own pipelines focused on lifting the gate to academics who would increase the diversity of the profession. These could be established independently, by law schools or other institutions, and spearheaded by senior faculty in the field.  They could also be created and implemented by umbrella organizations like the American Bar Association or the Association of American Law Schools sections.  In addition, schools that operate their own, often terrific visiting assistant professorships (VAPs) or fellowships could opt to build a non-residential option into their programs so as to be inclusive of those unable to take on a full-time role.  Including a non-residential, part-time option in an existing, prestigious VAP or fellowship would bring instant cache, and would be particular beneficial if schools were careful not to foster hierarchies between full-time and part-time fellows.  If any schools or institutions are running part-time programs, or interested in doing so, we would love to hear about and publicize them.   
  • Specifics: Both pipeline programs and part-time fellowships could include significant mentoring, include on the particular problems faced by diverse candidates; the opportunity to attend faculty workshops (in person or online); exposure; the signal that goes along with selection by a competitive program; the opportunity to gain teaching experience (in evenings as an adjunct, or in a winter term, or online); and research support (including Scholastica and ExpressO coaching and support).
  • Diversity goals: We focus for purposes of this blog post on people of color and women more generally, building on Meera Deo’s study of women of color law professors. We believe that any institution or group building a pipeline would need to have an honest and difficult conversation about the target field or fields’ challenges and the program’s goals, which might well lead to a different emphasis. For example, it may be appropriate to adopt a different emphasis that explicitly includes academics who are LGBTQUIA, or an emphasis targeted at increasing the representation of academics who are Black in the academy. 
  • “If you build it, would they come?” There are a number of potential obstacles to these approaches. One is that pipeline programs for diverse candidates might run the risk of being under-resourced and marginalized, especially as compared to more generalized programs. Significant institutional and senior scholar level support would combat this tendency. As for a non-residential fellowship, a stumbling block might be that practitioners would not be able to afford to moonlight for multiple years in a fellowship program before going on the market. We do think any program would need to be cognizant of the fact that inequity also distorts who is able to moonlight, and tailor its design and selection to account for that.

With the goals of improving diversity and representation in mind, we would love to hear comments, concerns, stories, or ideas!    

Posted by Howard Wasserman on September 8, 2020 at 09:31 AM in Teaching Law | Permalink


Every law Professor could help increase diversity by starting in their very own classroom. Actively reach out to diverse candidates who you think would make good professors. Danielle Citrons interview on Orin’s podcast was instructive in this regard.

Encourage junior scholars that you will read their work. Have the school set up a formal alumni mentoring program. Yale and Chicago have this but they may be set up to groom already groomed candidates. Have something where lawyers with nothing written 3-5 years in practice can get a mentor at the law school where they attended for people to read their work. My top law school alma mater had none of this when I was in practice. You have no choice but to go the fellowship route to get the recommendations you need if you have been put a few years or shy while in law school.

And decrease the importance of law school recommenders or not require so many Or decrease the importance of multiple scholarly publications which has become the norm. Consider recs from scholars in other fields Or law firm partners. Or better yet read the work and make a judgement.

Any change will be tough. You have a pipeline of extremely published people who likely will have to go on the market multiple times the next few years when the market is bad. Are schools just going to forget about them? On one hand you have this amazing pipeline yet at same time you also want to increase people who may not be in the pipeline already. And there are limited number of jobs. It is hard to change the expectations midstream; does not mean it can’t be done but it is still something to think about the people who already invested much in this process and are likely to face a tough job market

Posted by: Anon | Sep 9, 2020 9:20:19 AM

Ideally, in addition to within individual schools, this discussion continues as a topic over multiple sessions at an AALS annual or perhaps even an entire AALS conference theme.

Posted by: Darrell Jackson | Sep 8, 2020 11:33:59 PM

The simple fact is that the legal academy is obsessed with status and a part-time VAP program will never get the resources it needs, nor confer the respect it ought to, because it will be viewed as a second-class program for those who aren't as qualified or "committed" as the full-time program's participants. It will be evident from the CV that the candidate was in the part-time program, and unless backed by the full faith and credit of the sponsoring faculty, will be suspected of not making the grade.

While I applaud the goals of the post's authors, the plain fact that most law school faculties are composed of graduates of the same handful of elite schools suggests that the VAP is not responsible for a trend that has continued unabated for some time. (Although it may be exacerbating it if the VAPs skew more toward the HYS spectrum to the detriment of, say, Vanderbilt or Texas, which I suspect they do.) And the trend of Ph.D.s fleeing from a truly dismal future on the humanities tenure track (when they can actually find a tenure track job) for the Elysian fields of the obscenely compensated law professoriate isn't exactly helping non-traditional candidates break through the barriers.

And let's be honest with ourselves: Law faculty rarely have an interest in helping anyone with any substantial practice experience make the jump to the tenure track. They plainly do not evaluate scholarship on its merits because it is well-known that, in the vast majority of cases, they simply look at the USNWR ranking of the law review's sponsoring law school and impute that ranking to the law review. And the VAP is primarily concerned, as the post's authors obliquely reference, with getting a candidate a good placement for their piece (and perhaps with imparting the meretricious etiquette of how to agreeably disagree with one's supposed betters during workshops and faculty meetings).

Faculties also don't want to hire in these areas. How many administrative law spots, for example, are open in any given year. Tax seems to be perennially popular, but administrative law not so much, unless you teach it as part of health law, say, or environmental law. And as well all know, many times it comes down to needing someone to teach a section of Torts or other 1L subject with the other requested fields really a somewhat distant second. And no candidate is really prepared for that, which means muddling through the casebook for a few years while you re-learn it yourself and try to keep ahead of the students until you've mastered it. Of course, the VAP doesn't prepare a candidate for that, but that's all papered over.

It seems to me that the existing system, to work for all candidates, regardless of race, sex, practice area, etc., is to revamp the law faculty hiring process through a Bretton Woods-type agreement where everyone agrees to end the existing, misguided standards and essentially start hiring based on institutional curricular policies that meets the needs of the country (or for some institutions, the state or locality) and the profession, rather than the personal whims of the professoriate whose eccentric (to be polite) offerings that are less than satisfying, either as intellectual inquiry or professional preparation. Candidates can then prepare for teaching under these policies and be fairly evaluated on how well they are prepared for meeting the requirements of the curricular policy. That is, rather than having VAPs publish papers debating another minute point of Dworkian jurisprudence, an obscure commercial statute in a developing jurisdiction, or arguing for state recognition of, say, polyamorous relationships,* a candidate would be evaluated on their promise or record of producing scholarship that is directly related to the curricular goals of an institution. A top-notch patent associate with, say, 5 years practice probably is able to give a good job talk that explains plainly the problems with current patent law and how she thinks they ought to get fixed.

That's probably enough for now. I look forward to seeing how your experiment works out.

*To be clear, I am not arguing that these papers shouldn't be ever be written. But for an entry-level candidate, they're not particularly useful in understanding how a candidate will be able to engage with a large doctrinal field and continued reliance on these sorts of publications bakes in the myopia associated with current legal scholarship. I suppose the Dworkian paper might be useful if a candidate were trying to land a post teaching jurisprudence, but we all know that the entry level candidate won't be teaching that for some time, if ever.

Posted by: Jas. Madison | Sep 8, 2020 9:40:28 PM

I'd love for hiring chairs to chime in here, but having recently been through the process (successfully), hiring feels like it mostly comes down to subject area need* and publication history.

The VAP/adjunct proposal, although interesting, isn't going to do a ton for publication history. It's difficult enough to write an article in a fellowship with relatively light teaching responsibilities. I can't imagine trying to do that while working full time as an attorney and adjuncting. The problem the VAP proposal 'solves' is that it gets candidates teaching experience, recommenders, and mentoring. I just don't see teaching experience, recommenders, and mentoring as being the major obstacle to practitioners becoming academics.

The idea of non-residency fellowships is an interesting one, although there is so much gained from the fellowship experience by just being around that I'm not sure how well this would work in practice. This also only really solves the relocation issue, which I'm not actually convinced is the biggest equity obstacle to diversifying legal academia.

Maybe, as an alternative, fellowship programs should work harder to recruit and hire talented candidates from practice *without* well-developed publication histories and research agendas. Many fellowship programs -- especially the top ones -- are increasingly being filled by candidates with law-adjacent PhDs, which seems like an expectation that is fair to neither practitioners nor PhD graduates.

Maybe also the top fellowship programs should pay more. It's a lot easier to make the risky decision to leave a good job in practice and relocate for $70k (what most fellowship pay) than it is for $30k (what most PhDs pay), but it'd also a lot easier to make that decision for $100k or $125k. If the Chicagos and Columbias and Harvards of the world were paying their fellows $100k/year and recruiting and hiring almost exclusively people from practice who come from communities that are underrepresented in legal academia, that would make a world of difference -- at a relative pittance to a small number of very wealthy law schools (maybe an extra $200k/year per school).

In other words, I'm not sure that Miami Law trying to recruit local practitioners into a multi-year adjunct position is going to make all that much difference on the composition of legal academia. But if the Bigelow shifted to hiring mainly senior biglaw associates (/PDs/ACLU attorneys/etc) from underrepresented backgrounds with real potential but not much by way of publication history or a polished research agenda, and gave them the space and salary necessary to develop the sort of publication history and research agenda that is required on today's tenure-track market, that would spur real change.

*I'm going to mostly disregard the impact of subject area need, because this is mostly luck--and also not something that can be influenced all that much by someone already years into her career. (It's not like an NRDC litigator can all of a sudden pivot to commercial transactions.)

Posted by: anon3 | Sep 8, 2020 8:51:27 PM

This is an interesting set of ideas, thanks for posting them. I gather there are two somewhat distinct goals here: credentialing future applicants (so they have some sort of VAP/Fellowship on the resume) and giving students a background and exposure that will help then be stronger candidates in terms of their preparation and knowledge on the entry-level market. The big question would seems to be how well a part-time program can do that, or whether to get those benefits you really need a full-time program. I don't know. I wonder if schools in cities with lots of lawyers could try this with practicing lawyers and see how it goes. I also would be interested to hear from potential applicants to such a program about what they feel would help them and what would meet their needs.

Posted by: Orin Kerr | Sep 8, 2020 4:54:18 PM

This is an interesting set of ideas, thanks for posting them. I gather there are two somewhat distinct goals here: credentialing future applicants (so they have some sort of VAP/Fellowship on the resume) and giving students a background and exposure that will help then be stronger candidates in terms of their preparation and knowledge on the entry-level market. The big question would seems to be how well a part-time program can do that, or whether to get those benefits you really need a full-time program. I don't know. I wonder if schools in cities with lots of lawyers could try this with practicing lawyers and see how it goes. I also would be interested to hear from potential applicants to such a program about what they feel would help them and what would meet their needs.

Posted by: Orin Kerr | Sep 8, 2020 4:54:16 PM

I really appreciate your comments anon0 and theRealAnonymous. In particular I think the idea of a one-on-one pairing with an adjunct class and presentation/workshop participation opportunity could be effective and somewhat low risk for all involved. Could be a very rewarding experience for the fellow and the mentor even if a job did not result, but I hope it would. A formal program would give recognition to both for their time and energy and maybe a legitimacy bump by giving the fellow something to list in the FAR form.

Posted by: Matthew Lawrence | Sep 8, 2020 1:41:16 PM

As an URM in legal academia, I am familiar with the risks of leaving a good job (as any realistic candidate will have) to spin the wheel in legal academia or in an underpaid fellowship. If things do not work out you might not be able to get a similar job back (young minority associates will lack the networks to get back in the game). And being underpaid for couple of years as a fellow (to then spin the wheel again) is not feasible for those who have family to support (parents, children or both).

The last thing we want is to hire people based on race, as I fear some will do. That will be detrimental to minorities in the long run. Offering minority candidates an opportunity to find out whether they have the ability to teach and do research will make it easier for good candidates to take the leap of faith and "risk" it. This can be achieved with a two-year program that allows the fellow (or whatever you call it) to teach as an adjunct and to write an article under the supervision and with the help of a faculty member (with the opportunity to present at a brown bag, etc.).

Having some teaching experience and a published article will come a long way in the market for someone who is currently a practicing. I, for one, would rather see new professors come from practice than from cookie-cutter fellowship programs that polish their candidates for what seems to be a very shallow beauty contest.

Schools in large urban areas (Miami, NYC, Chicago, LA, SF) should take the lead on this.

Posted by: theRealAnonymous | Sep 8, 2020 12:18:05 PM

It's going to be hard. The last sentence of the post hints at this. One of the very solutions (allowing practitioners to moonlight) doubles down on the costs and fatigue for the most precarious and vulnerable groups relative to others. Plus is any remote fellowship, no matter how carefully designed, going to offer as many opportunities to learn ambiently from faculty, or even moreso from other fellows in informal conversation? It may seem like remote is a default now and there is little cost to it, but if things go back to face-to-face, the difference could be pronounced.

Recruiting candidates in fora like bar associations is an interesting idea (though not sure why it should be done by subfield) but only maybe gets over some of the informational and motivational barriers. Even with a remote fellowship and lots of support, is a potential minority scholar going to want to risk a career in practice with little safety net if things don't work out? Is it actually a kind of malpractice to tempt them of all people to do so given the state of the market?

Finally, there's the issue of the glut of scholars on traditional fellowships with plenty of publications that these new recruits would have to surmount, with all their existing advantages. The fundamental problem is the surplus of candidates relative to jobs, which has inflated the cost of the entry level market tremendously. Some schools could maybe unilaterally try to ignore the way standards have developed and go back to taking promising candidates from practice with little publication record as long as they increase diversity, but if this was a possibility why are they not doing so already?

Posted by: anon0 | Sep 8, 2020 10:00:54 AM

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