Thursday, September 1, 2022
The Two Legal Academies, Part I
I have taught at five different law schools. None of the law schools at which I have taught were ranked in the Top 100 at the time I taught there. One now is (good for you, Drexel!). Increasingly, I have come to believe that there are (at least) two legal academies. When I tell people at top law schools that we do not have the same job, they reject the proposition as absurd. I suppose it depends on how much overlap you think there has to be. Yes, we teach the same courses. We may even teach the same cases and have similar conversations about those cases with our students. And yet, so much about the way lower-ranked schools operate differs from the way top-tier schools operate. As a result, the routines and responsibilities of law professors at the two kinds of institutions are really different.
The gap between the top law schools and lower-ranked law schools has widened dramatically over the course of my career. When I started teaching at the Valparaiso University Law School (RIP), I and most of my colleagues still were giving one winner-takes-all exam at the end of the semester. Some of us were able to publish consistently in top 80, or top 50 law reviews. One of my colleagues was a Bigelow Fellow who had never practiced (but was a spectacular teacher). I had time to write articles during the school year.
Much of that is no longer true. As our bar passage rate for Valpo Law grads declined, for reasons I have discussed here, we dramatically changed the way we taught. We reformed our curriculum so that all first-year courses were seven weeks long (a change about which I blogged here, here, and here), guaranteeing students early feedback so that our student support faculty and staff could engage in early interventions. I did not care for that move, because I preferred (and prefer) to give my students feedback throughout the semester, and grading 70 -140 contracts exams in the middle of the Fall semester was just really difficult, especially as our teaching loads also increased at that time. Because Valpo Law collapsed, it is easy to dismiss our efforts as rearranging the deck chairs on the Titanic, but I don't think the collapse was related to our curricular changes.
In any case, my current approach involves reading and commenting on weekly homework, offering to read any practice problems that students care to turn in, a short midterm, and a final. As a result, this blog is the closest I come to writing scholarship during the semester, and to my great regret, I have almost no opportunity to read other people's scholarship during the school year. I'll have more to say about the two legal academies and scholarship in another post.
When I was at Valpo, we managed to hire a couple of Visiting Assistant Professors (VAPs) who had been at Stetson and Chicago Kent. People who had prestigious VAPs at places like Harvard, Stanford, and Chicago were now out of reach, as were people who had clerked on the Supreme Court. Early in my career, I was able to place my scholarship in a matter of weeks. One of my colleagues got an acceptance something like thirty minutes after he submitted. These days, I sometimes come up empty and have to send pieces out through several cycles before I can place them.
I am chairing my law school's hiring committee, and so the very different experience of the hiring market at the top and the bottom of the law school renkings is very much on my mind. To give one obvious example, two years ago, the University of Virginia's law school hired seventeen new faculty members. Not to be outdone, last year, the University of Michigan's law school hired twenty new faculty members last year, in addition to its three new clinical fellows. The announcement of new faculty members also provides a non-exhaustive list of six additions in "recent academic years." Meanwhile, my entire law school has thirteen full-time doctrinal faculty members, including our Associate Dean. If you include legal writing instructors and librarians with teaching duties, we get up to 21, still three short of Michigan's one-year hiring haul.
All the more so because there are only 272 candidates in this year's first distribution through the AALS's Faculty Appointments Register (FAR). If the top schools were picking their new hires from that register, one top school that goes on a Michigan-like hiring spree can take nearly 10% of the candidates. But of course, Michigan and Virginia are not, for the most part, hiring the people in the faculty register. They are, for the most part, making lateral hires. I intend no criticism of these two great law schools. The groups of legal practitioners and scholars that the two schools attracted are amazing on every level.
I merely note that I would be surprised if any of those 40 immensely knowledgeable, talented people would consider teaching at my law school, even if that were the long-term academic offer they had. They would elect to take a short-term position or return to/stay in practice than to take a job like mine, which is amazing because my job is so much better than 95% of the jobs in this country. I am well-paid, and I have pretty good benefits, I make my own hours, and I have a great deal of autonomy in terms of how I teach and what I write about. I have my own gorgeous office, and I close the door whenever I like. Since my law school does not offer classes on Fridays, every weekend when I don't have a faculty meeting is a long weekend. And then, of course, I have summers to do with as I like. Mind you, I work hard in the summer, but that is a choice.
Brian Leiter provides some theories to explain this year's small pool in the first FAR distribution. Brian's first theory is that there is a lot of need in the private sector, and so people might want to make money in that market while they can. Things may have changed. In my experience, a surprisingly high percentage of well-compensated lawyers in private practice felt trapped and would have loved to jump ship for academia if they knew how to do it. I would be surprised if that has changed, as I would be surprised if the legal profession escaped the general crapification of work. One commentator on Brian's thread opines that the ability to work remotely has made working for law schools more tolerable. To him I ask, why is being able to tolerate work your goal? I enjoy my work. Maybe government jobs are still okay, but that is not where the money is. Nonetheless, I find Brian's second theory does more suggestive:
The barriers to successful entry to the tenure-track market have risen significantly over the last 25 years, and even over the last ten years. 25 years ago, plenty of folks got good tenure-track jobs on promise. Now, of course, one needs publications in most cases, and often the kind of profile one would associate with a graduate of a PhD program (one reason JD/PhDs are increasing their share of the market). I suspect it is harder now for even the typical very strong JD from an elite law school to contemplate the moves (e.g., to VAPs or Fellowships), or carve out the time (for writing), that is now required.
Many of the commentators agree with this theory, and the estimable Orin Kerr goes farther, commenting "To have a realistic chance, a candidate usually needs either a VAP/fellowship or a PhD. — and everyone knows it." When Orin Kerr says something this wrong about the job market in which I exist, it can only be because he inhabits a different job market, in fact, a different Legal Academy, about which I will have more to say in another post. So let me make this clear. Speaking as the chair of the hiring committee of the Oklahoma City University School of Law, you do not need a VAP or a Ph.D. to be qualified to teach at my law school. What we are looking for is teaching ability, practice experience, and a commitment to one-solid-article-every-year-or-two scholarship.
The second post in the series, on scholarship in the Other Legal Academy, is here.
The third post in the series, on teaching in the Other Legal Academy, is here.