Law schools are moving to a model where the path to a tenure track job increasingly runs through a job as a fellow in a prestigious program such as the Climenko fellowships at Harvard or through a stint as a Visiting Assistant Professor.
The VAP path is the route I took when I finally figured out after a misspent middle age that teaching law was what I had wanted to do all along. For me, being a VAP was a wonderful experience - the work was stimulating, the pay was more than fair, and every time the administrators or tenure track profs could help me, they did.
That said, a conversation I had the other day made me think a bit about whether the shift to VAPs as an entry point is good either for some candidates or for the legal academy. The conversation started with what Brian Tamanaha has skeptically called the “law professor mantra” that law professors should be paid more than other professors because they could make more in law practice. I wondered whether this has any validity given the modern world of practice. I reached out to Larry Latourette, a former big law partner who now is a principal in the legal headhunting firm of LateralLink, to see if law professors these days really have any options in private practice.
As I suspected, there wasn’t much of a story there. “Law professors are not marketable,” Latourette said. “If they think they are they are kidding themselves.”
For law firms, the main reason is that no one gets hired as a partner without a portable book of business. “About 98 percent of getting hired is the book of business,” Latourette said.
Even aside from that, path dependency and skill sets provide a barrier. Law firms and law departments can pick from a big pool of people who have stayed in practice long enough to have highly developed, specialized skill sets, and especially on the law firm side there is a tendency to pigeonhole people into the work they’ve done before, he said.
He did note there were exceptions – someone like Larry Tribe could move to a firm, or someone with mature gravitas could fit a situation where a troubled institution needed a white hat. Professors with active consulting or expert witness practices might persuade firms their marketability was proven. He also argued that people with the capabilities of your average law professor should find a role somewhere, even if the structure of the legal field made finding a private practice job difficult.
He acknowledged that at the outset of a teaching career the pay scales of private practice matter – the pay has to be enough to justify foregoing the higher pay of private practice.
Even there, Latourette said, “Law schools could pay less.”
His point was that many professor candidates weren't giving up that much because even in a pool of those with the very best academic records the odds of making partner were long. By the statistics, most law firm associates with law professor level credentials do not make partner. The skill sets and mindsets of teaching and practice are very different, and unblinking desire for the brass ring of partnership is a critical factor. “You have to want it very badly without thinking about whether it is worth having,” he said.
The could-pay-less point brought me around to VAPs and fellows, because that’s exactly where law schools do pay less. Pay varies by school, of course, but at many schools temporary professors are brought in on lower pay scales, with the candidates hoping this will provide a path into the teaching profession. Potential professors want the job enough that they take the jobs at lower pay, even without the additional benefit of being on a tenure track. The process gives potential professors a chance to get some articles written and to see if they like the academic world.
I think this trend has systemic costs for the academy as a whole. As schools move to this model, it has to reduce the diversity of the candidate pool. Not everyone can move temporarily to a job or take the pay cut for an uncertain future, and those who cannot suffer in comparison to those who can spend two or three years polishing an academic resume. Candidates from wealthier backgrounds thus have an edge. It can disadvantage students, because no one teaches a course as well as they possibly can the first time they teach it. There’s also something about creating a floating body of non-tenure track faculty that makes me feel queasy.
The costs also can be great for the candidates, and Latourette helped bring this home. In today’s teaching market, a lot of candidates might be left standing when the game of musical chairs ends. What happens to a VAP who doesn’t get hired? Can they go back to big law?
“They are basically useless to me,” said Latourette. “Just the act of stepping off the path is enough. Law firms want people who run the path hard and have no other goal. If they pursue the VAP that indicates they have a different goal than most firms are interested in.”
On reflection, Latourette walked that back a little. There’s a point in years out of law school – something less than ten years – when a candidate has enough miles on the meter that going in as an associate no longer is possible and going in as a partner either requires unique skills or a book of business. Even government lawyers with highly marketable skills have sell by dates.
If a VAP can get in and out of the academic experience in a year, maybe two, and still be fresh enough to market as an associate, Latourette saw some hope, especially at boutique firms that highly value academic pedigrees.
While Latourette knows the current big law market better than I ever will, I think there may be some counter examples out there. Latourette also does not profess to speak about other kinds of legal employers, which may be of much more interest to many potential VAPs. I know one Climenko fellow who turned down teaching offers to go as an associate to a top Wall Street firm. I know another case, a veteran lawyer with the proven ability to develop and try big cases, who moved from several years of being a VAP to being a partner with a small firm.
I think law school hiring committees should think seriously about the path the academy is heading down as it makes VAP or fellowship experience a near prerequisite for getting hired for certain categories of candidates. By requiring the kind of experience and output a VAP or fellowship allows, the academy devalues other experiences, disadvantaging those who stay in practice and those unable to afford the gamble.
I also think potential VAPs and fellows should understand the risks and costs. Not everyone lands a permanent teaching job, and candidates need to do some serious research and thinking before jumping off the ledge.