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The Real Problem with Law Teaching Fellowships

Orin Kerr blogged yesterday about a new Visiting Assistant Professor program in the works at Harvard Law School and attracted a pretty predictable chorus of critics (of Harvard, not Orin).  The post is hard on the heels of this post by Rick Swedloff at Concurring Opinions about law teaching fellowships, and Paul Caron’s roundup of fellowships, VAP programs, and advice for aspiring law teachers.  (Shameless self-promotion:  Paul doesn’t link to my own contribution to the advice literature:  Part I, Part II, and Part III.)

At CoOp, Rick offers the standard, best defense of fellowships and VAP programs.  So long as they really do offer time to read and write, they help would-be faculty find their academic feet before diving into the job market.  That’s consistent with my core advice to academic job-seekers:  To become a professor, be a professor.  Be the ball, Danny.

The chorus at (and some of the commentary at CoOp) offers the standard cynical view:  The programs exploit cheap labor, undervalue the practitioner credentials of the candidates that they purport to promote, and reward candidates who are already likely to get teaching jobs, regardless of a fellowship or VAP appointment.

Let me offer a different view.  The real problem with law teaching fellowships and VAP programs is what I’ll call scope creep. 

It is possible to do what Dean Elena Kagan at Harvard now claims she is trying to do:  give experienced practitioners a meaningful opportunity to access the market for law teachers.  When I first got into law teaching, some fellowships (and to a lesser extent, VAP programs) really did try to do that.   Back in the day, there were far fewer of these programs than there are now, and it was less true that appointments committees looked for some academic experience in the CVs of candidates who didn’t follow “traditional” routes to teaching.  Practitioners had some real opportunities to leverage intermediate academic appointments into law teaching careers.

I was one of those people.  I was a “Climenko Fellow” at Harvard when that program was an experiment run by a handful of faculty, before the program had that name, before the content of the program took its current form, and when the purpose of the fellowship was precisely what Dean Kagan is describing now.  There were only six of us, originally, over three years.  Of that group, I had the most experience as a practitioner — roughly nine years — but none of us was strategizing a teaching career from the day we graduated from law school.  Three of us now have tenure at U.S. law schools.  For the Harvard faculty who originally conceived the fellowship, that’s a pretty good record.

Over time, the Climenko Fellowship changed.  It got funded and named.  Institutional needs intervened; interests of the original sponsoring faculty were not always shared by their colleagues.  As it got institutionalized the fellowship got flattened, that is, it lost its distinctive character.  Across the country, distinctive VAP and fellowship programs (Chicago, Columbia, for example) begat copycats that likewise lacked distinctiveness.  The goal wasn’t necessarily to create training space for candidates on their way to the market; the goals included promoting the school’s brand in a market for scholars, and hiring cheap teachers.

In short, what was a relatively unique credential and experience has become more or less common (pun intended) in the legal academy.  The scope of hiring committees’ expectations have changed in response.  A fellowship or VAP position may be regarded as a prerequisite for any but a few candidates, which may mean that the experience makes a difference for only a few.  As non-elite law schools created programs to democratize the market for law teachers (and buy themselves some reputational capital in the process), they inadvertently made it more difficult for any non-“traditional” candidate to attract attention.  Everyone with non-standard credentials (and even many with standard credentials) gets advised to take a fellowship or a VAP appointment before going on the teaching market.

What to do?

If you’re a candidate:  You need to manage two somewhat contradictory imperatives.  On the one hand, be the ball.  Learn how to walk, talk, write, and think like a professor — like most of your would-be colleagues — and then apply for a job.  On the other hand, distinguish yourself in some way beyond the usual stuff — beyond where you went to college or law school, beyond your grades and clerkship, beyond the name of your law firm, beyond the increasingly-standard VAP position, even beyond where you placed that first article.  Distinguish yourself with the sophistication of your ideas; distinguish yourself with the sophistication of your presence.  On both counts, this is where connections with other academics, conferencing, and even (in a pinch) blogging may help.  On both counts it likely requires both time and money and a manifest emotional commitment to the pursuit of an academic career.  Some commenters to Orin’s post are skeptical of the Harvard program because practitioners are going to be reluctant to give up their practices and will worry about returning if the academic path doesn’t pan out.  Yes, that’s absolutely right.  If you’re risk averse in that way, then don’t take the job.  Stay in practice.

If you’re a law school that wants to promote itself and/or its graduates as potential teachers:  Create something other than a copy-cat VAP/fellowship program, and create something that has a concrete and discrete mission.  Current tenured and tenure-stream faculty need to be personally invested in both the operation of the program and in its success.  Give the fellows/VAPs time to learn and time to write, work with them (read their stuff, have lunch with them), and don’t give them too much to teach.  It’s difficult if not impossible to pull this off if the school doesn’t already have a strong institutional commitment to producing quality scholarship.