The VAP Trap

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.

Comments

[AnonProf]

Let's not lose sight of what you are describing when you say that law professors have expiration dates that would make it impossible for them to, in most cases, move into practice. What you describe strikes me as a culture of age discrimination. Why would a law firm be willing to hire a newly-minted lawyer but not someone work worked for years as a law professor or a VAP (and may even have taught the newly-minted lawyers the firm hires routinely)? Surely most professors have significant knowledge of legal literatures, which should be a major plus in the practice of law, the ability to do first-rate legal analysis, and the ability to write well. Why must someone be hired as a partner (with a book of business) or not at all, merely because the candidate has been out of law school for several to many years? For what reason, other than because law firms have "tracks" because, well, they just have "tracks," couldn't a former law professor or former VAP join a law firm as, say, a third-year associate? It's not like one can't learn by doing, like all the associates do, in a law firm. It's not like one can't start to develop a so-called "book of business" while an associate at a law firm, as associates who become partner often do. Indeed, a law professor, because of his/her experience, would have a particular knack in many cases for learning new areas of specialization.

So look at the statement, “They [former VAPs] are basically useless to me. 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.” Why is this anything more than empty blather that justifies not hiring people because of their age?

[anon]

AnonProf

Stunning. One can only say "How dare you?"

Have you reviewed the AALS hiring stats recently? Sort by date of graduation from law school.

The law academy not only practices age discrimination, it PRIDES ITSELF on it. I have personally heard it, over and over, so please, don't claim otherwise. If you are law prof, you know this is true.

Really, a certain amount of bs on this site is to be expected, but your comment deserves a special prize for hypocrisy and obliviousness.

That the blatant age discrimination practiced by the law academy in hiring is tolerated is a shameful and despicable circumstance. This practice is especially disgusting because one expects "enlightened" individuals to know better.

[SB]

The fact that law professors are not marketable outside of academia is a shame to our students.

[OhsocleverAnon]

You can't view the VAPs are useless to me as an age discrimination claim. Most VAPs are well under 40. Frankly its the other way round....if you are over 40 and have never written a serious academic article your chances of getting into a tenure stream position are quite limited except in a clinical setting. All that the recruiter is really saying is that in a certain phased of the market he can't easily place or does not need to recruit VAPs. But I have known VAPs who have decided not to go into teaching permanently or who have not been successful in transitioning out of practice who have gone back into the market.

[AnonProf]

anon: I'm not a law professor; I just play one on tv. Does that change the validity of my argument, in your eyes?

[Barry]

"Barry, please identify the mythical lousy school that pays rock star salaries. And once again salaries do not reflect market power of current faculty but need for universities to attract top tier talent out of other gigs. Granted if the bottom of the trough continues a downward shift could occur."

Posted by: CleverAnon

All schools in the bottom 150. Remember, my definition of 'rock star salary' is in comparison to other fields. $150K is a major salary in almost all other fields, and that's in the top 20 or so departments.

Jason Yackee: "It's a market, folks. But law schools are not just (or not even primarily) competing with law firms for the best and brightest; they are competing with *other law schools* for top talent, ..."

Jason, for Harvard, I'd accept that. For T14's, I'd accept that. For Case Westerm? Thomas Jefferson? UC Irvine? For the 100-150 schools which frankly are never going to get top talent (or keep it), I don't accept that.

And going on, when the VAP:job ratio is several to one, *after* discarding those who shouldn't even have gotten a VAP in the first place, there's no way.

"Jilly, what will happen is that law schools will begin to fail a significant percentage of their matriculatees after the 1L or 2L year. Those failed students will not get their money back."

I expect some schools to do this, and they'll buy a few years, but the feedback from that will probably get back to undergrads even moreso than lousy job prospects.

[Barry]

AnonProf: "What you describe strikes me as a culture of age discrimination. "

Yes. Which is the world we live in.

"Why would a law firm be willing to hire a newly-minted lawyer but not someone work worked for years as a law professor or a VAP (and may even have taught the newly-minted lawyers the firm hires routinely)?"

Well, right now they don't like to hire new grads, since laterals are so cheap and available. Perhaps you should check your school's placement rates.

" Surely most professors have significant knowledge of legal literatures, which should be a major plus in the practice of law, the ability to do first-rate legal analysis, and the ability to write well."

No, not surely, and likely not even probably.

"Why must someone be hired as a partner (with a book of business) or not at all, merely because the candidate has been out of law school for several to many years? "

Because hiring somebody who doesn't have a book of business means (a) diluting partner profits and (b) taking a large risk that the new hire won't pull their own weight over the next few years.

[anon]

OhsocleverAnon

"if you are over 40 and have never written a serious academic article your chances of getting into a tenure stream position are quite limited except in a clinical setting."

No, if you are over 40 (or 50) your chances of getting into a tenure stream position are not only "quite limited," these chances approach nil.

Again, review the AALS stats and sort by date of graduation from law school. Let's stop soft peddling it. Let's drop the BS; the law academy is one of the most egregious in its blatant and open age discrimination, and everyone who cares to inquire knows about it. Check out the quotes from prominent members of legal academia in the NYT, "What They Don’t Teach Law Students: Lawyering," November 19, 2011. The facts are facts. There is no secret about this.

Further, your comment demonstrates another technique that is considered "ever so clever" (and valid) in the legal academic community: your argument goes something like this:

"I heard ..." "I know an example of ...." "My spouse knew someone who ..." "I'm not an expert, but my colleagues who are inform me that ..." etc.

In other words, bs anecdotal evidence, hearsay and rumors disguised as reasonable argument and fact.

Using the VAP as a ruse is just another disgusting way that legal academia is making its mark in the public consciousness.

[concerned_citizen]

"What are the covert tools you have in mind? "

Orin, I suspect things like low-cost loans (which are in many cases later "forgiven") and the like.

[concerned_citizen]

"but your comment deserves a special prize for hypocrisy and obliviousness."

I don't think these two can peacefully coexists, so I vote the latter.

[anon]

Can one be oblivious to one's own hypocrisy?

Perhaps.

[Orin Kerr]

Concerned_citizen, I think Jason was referring to covert tools used by Deans at the professor's current place of employment, not ways Deans can try to lure laterals to their school.

[MacK]

AnonProf:

You may not be aware of it, but BigLaw (or even mid-law) will rarely hire, unless they have an incredible pedigree like a Supreme Court clerkship or a father that is a S&P 100 CEO, "a newly-minted lawyer" who is over the age of 30 or so. They are considered as unlikely to be willing to put in the hours that a 23-24 year old "newly-mint" would, especially for 10 years. This detail has been blithely ignored by many professors and law schools (especially I suspect yourself) when recruiting from "non-traditional backgrounds" those who can sign the loans to pay the tuition for at least the last 15-20 years. It's not fair, it is probably wrong - but it happens and the law schools are doing it too. Indeed law schools discriminate against lawyers with too many years of practice experience, a fact that defenders of the law school status quo have alluded to, which can be seen as age discrimination (if a extremely perverse form of such discrimination.)

Practicing lawyers have also dealt with the "new mints," so in many instances saying a professor taught them what they know about the legal field they want to enter - well let's say that that is not a positive point in most instances. As for "most professors have significant knowledge of legal literatures, which should be a major plus in the practice of law, the ability to do first-rate legal analysis, and the ability to write well," were you being ironic, facetious or serious? I can't tell...

As for "it's not like one can't start to develop a so-called "book of business" while an associate at a law firm, as associates who become partner often do," you do understand why so many BigLaw associates, 90% plus depart big law within their first 5 years is that they don't develop a book of business and are transparently unlikely to. In fact very very few associates develop a book of business (many partners cannot either.) Very few associates develop a book of business that would justify a partner's pay check in BigLaw, that is the hard reality. I've built a book - it is hard, damn hard.

As I said, I am not sure if your post was a joke, a sort of satire on the by now clichéd oblivious and hypocritical law professor, or a genuine if clueless crie de coeur. Can you elaborate?

[MacK]

Orin:

It is interesting - although the legal concept is not found in all US states, at what point do covert means become "constructive dismissal?"

[Jeff Harrison]

Someone has probably said this already. I tried to read all the comments but may have missed it. Law profs are paid more at the outset because when they enter law teaching they have an option. This is especially true with respect to the closed universe of people eligible to be hired as law profs. Ten years later they still make more than other academics but probably less than others who could have but did not enter law teaching. The higher salaries ten years out cannot be explained by a need to pay them not to return to practice because very few could find anyone to pay them their law professor salary. So, why the higher salary? To me it is payment for being willing to forgo the path that could have lead to much hire salaries. In effect, it is a lifetime payout based on taking the less lucrative path.

[twbb]

"but probably less than others who could have but did not enter law teaching."

Nope; I would suspect that most non-equity-partner lawyers who started out in biglaw ten years ago currently make less than the average law professor. Law professors willfully refuse to discount projected salaries they could have had ten years out by the high percentage they would have washed out of the partner track, like most biglaw associates eventually do.

[anon]

Right. Every law prof sees himself or herself as a "rock star" who was the "best athlete" at the "meat market."

They literally use comic book phrases to describe themselves.

Very special snowflakes, indeed.

[MacK]

twbb:

To be fair, ideas about what BigLaw partners are earning are very much driven by the AmLaw numbers - and I have heard a lot of at least anecdotal evidence that the AmLaw numbers are complete bullshit - up there with USNWR placement statistics for law schools for many of the same reasons. Law firms fear the consequences of not being seen to be as profitable and successful as their peers. The danger is when law firm leaders "drink the KoolAid®" and start making choices to match their supposed peers success by for example offering astonishing guaranteed packages to lateraling partners (cf Dewey).

Of course it does seem from time to time that many law professors believe the impression given by AmLaw, which in a curious way makes them similar to law students lured in by the USNWR data, while faculty pay also seems to be driven by this impression.

Also, in a "get off my law[n]" harumphing mode, I think it would be entertaining and indeed instructive for many who read this forum to have a totally ruthless and sarcastic thread in which everyone piles on to demolish clichéd lawyers (partners, associates, prosecutors and defenders), law professors and indeed judges as portrayed in popular media - TV in particular - going back to LA Law. I think it could in fact be potentially provide educationally useful material.

It reminds me of a rather grizzled Army sergeant who gave my teenage reservist (with my peers) a protracted lecture at a firing range where they had a wide variety of vehicles and materials (assorted wall types up to steel plate) riddled with holes - I'll try to remember how it went (it was 30 years ago):

"now listen, wha' yez see in the movies is complete shite - the detective hidin' behind a car door - most bullets will go right through a car door, walls - plasterboard (drywall) stops almost nuttin, clapboard feck-all" .. and so on showing us examples "Dat stuff on TV gets people kilt..." By the way with respect to the gun instructor killed in Las Vegas when he let an 8-year old fire an Uzi on full auto (see YouTube), he also (long before that blackly funny event) stated two basic rules with respect to submachine guns - "never fire on full auto like in da movies (burshts, burshts)" and "never stand to the left of some eedgit firing on full auto."

He was a man who had seen considerable violence in 20+ years of UN peacekeeping details and secondments to the UN as an observer (which had invalided him to the reserves) and had a bit of a thing about unrealistic media portrayals of violence. Maybe we all need to have a thing about popular media's portrayal of the law.

[Barry]

Ray, you've been invited over for a conversation:

http://outsidethelawschoolscam.blogspot.com/2014/10/vapid-vaps-and-delusions-of-lawprof.html

[twbb]

True, and I tried to qualify it by specifying equity partner but even then I suspect a lot of putative "equity" partners have a minimal share in firm profits. And while I accept that a lot of law professors may be misled by AmLaw, the big difference between them and students misled by USNWR data is they actually benefit from the mismatch, since the law professors who become administrators and make compensation decisions appear to suffer from the same misperception.

In any event, whatever motive in the past there was to pay law professors huge salaries has pretty much evaporated, though doubtless they will protest en masse that out of a vague sense of fairness they should be set for the rest of their lives. I suspect a lot of the current law and economics clique will get a lot less so when it comes to allocative efficiency in regards to their own salaries.