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

[PaulB]

For those who have been frustrated by the willful blindness that so many professors have exhibited regarding the job prospects and debt levels of their students, this is an important post. It recognizes that a major part of the solution to the cost problem is that law school faculty will have to be compensated on the same scale as the sociology department, and not be treated like the physicians at the medical school

[Failed Academic Wannabe]

I was on the market a few years ago when the academic hiring market cratered mid-hiring season (I had ten or so AALS interviews, and only one of those schools actually hired someone that year). I knew several VAPs/fellows who also struck out. They all ended up finding something in practice, though it took a while for at least one of them. Some went back to their firms. Some went to new firms (though these tended to be the people who were in government prior to going on the market). Some went to government.

[Dubitante]

To address another aspect of the post, I agree that there has been a heavy move toward a VAP model of hiring, and I think it is probably a mistake. The impetus for this drift in hiring practices seems to be an attraction to the Ph.D. faculty development model of other academic disciplines. But this strikes me as a poor model to emulate. First, Ph.D. programs have nothing to boast about. By and large they seem increasingly to produce narrow, highly specialized people with a good knowledge of how to manipulate certain professional tools but, in my experience, not much of a grasp of the big picture that might give them some insight how to use those tools productively. They come out of their programs with an academic agenda, to be sure, but it seems rarely to be an interesting one. Second, this model is an especially bad idea for law, since it seems to produce people who are largely cut off from the profession itself, and thus are doubly disabled from doing professionally useful scholarly work, to say nothing of the sometimes disabling effects of this kind of training on their ability to teach professional students credibly and effectively. I have nothing against any faculty hiring some people with this kind of background -- diversity in law faculty professional backgrounds is to everyone's advantage -- but I sense an excessive rush to repopulate faculties with individuals cut from this particular cloth.

[Christine Hurt]

I think that the decision to leave a partnership track for any type of non-practicing career is one that should be made only after a serious weighing of the potential downsides and upsides, whether that next step is academia, business, or child-rearing. For the reasons you cite, law firms are sometimes loath to take back associates who have gone in-house. (The joke at one of my old firms was "What do you call someone who comes back to the firm after going in-house? Permanent Associate.) Whether or not your skills had increased or decreased during your time away, you would be seen as not willing to make the sacrifices a partnership-track associate would need to make. I even had a friend who went to the D.A.'s office from a big law firm after two years, and they wouldn't take her back after three years as a prosecutor, when she had actually been trying cases and getting great experience.

That being said, I saw at least three VAPs at Illinois return to sophisticated practices after leaving a VAP after one year. These were highly-regarded attorneys (two associates and one partner), and their discussions with their firms upon leaving were more like "if this doesn't work out, call us." If the person who is leaving was biding their time in practice and wasn't on track anyway, then the decision not to re-hire is too easy for the law firm to make. If structured and used in the right way, a VAP can give some lawyers a chance to see if academia is right for them.

[Suzanna Sherry]

Requiring a VAP or equivalent will also disproportionately hurt female candidates, because -- at least for those who are straight and married, especially if they have kids -- they are probably less able (less willing?) to disrupt their families by relocating to someplace that will mostly likely be only temporary. There are still more men with stay-at-home or otherwise mobile wives than there are women with stay-at-home or otherwise mobile husbands. Ergo, male profs are more likely to be willing and able to risk having to move twice in two or three years.

[Barry]

"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 contradicts what he said earlier (except for the fact that 'find a role *somewhere*' is not much of a statement).

He started out stating the the book of business was 98% of being hired, and added the fact that law firms have access to a very broad and very deep market of people who are *experienced* in whatever sub-specialty is needed.

Those two factors would work hard against almost all law professors (superstars, of course, live in their own world).

[Just saying...]

Law profs are not employable as practitioners??? This is news??

No one ever truly bought the argument that law profs should be paid more because they could make so much more in practice.

Law profs were paid more because law schools could command the tuition that they did from students and pass most of that money on the law profs. Deans saw salaries, stipends, etc. as a way to placate faculties.

At all the law schools in which I worked, professor salaries were 50%+ of the school's annual budget.

Those days are over, kids.

[CleverAnon]

Law professors are useless to Latourette because he has a cookie cutter business model which involves moving pieces around the chess board of a certain set of firms. Talented people with good skills - granted not all law professors ever generated the skills - can get hired in firms or in house and government and elsewhere is the macro environment is strong. Based on the pattern of calls I have gotten from headhunters over the years it depends largely on the robustness of that market. Granted at a certain age point the story changes - the institution has to need/want a leader or someone with the "gravitas" factor.

The law prof salary issue has always been misconstrued in this debate. It is not about the fact that a university might lose you to the private sector but it is about how competitive the university remains to pull people out of the private sector. And the market has spoken on this issue - salaries increase pretty much in proportion to research productivity. If schools pay lower salaries they clearly do not want a certain kind of academic faculty member.

[Just saying...]

CleverAnon: Huh???

[Ray Campbell]

Keeping in mind that his field is big law and a few boutiques that compete with big law, I asked Larry if he was willing to give a read to people, whether heading out of VAPs or considering heading in, as to how marketable they might be in his world. Larry would be delighted to speak in confidence to anyone with questions on their law firm marketability and can be reached at llatourette@laterallink.com

[Barry]

CleverAnon: "The law prof salary issue has always been misconstrued in this debate. It is not about the fact that a university might lose you to the private sector but it is about how competitive the university remains to pull people out of the private sector. And the market has spoken on this issue - salaries increase pretty much in proportion to research productivity. If schools pay lower salaries they clearly do not want a certain kind of academic faculty member."

Two things - first, they don't have to pull so strongly. A candidate for law professor who has three years of practice is in the top (probably) 10-20% for years of practice. I read that half of law professors have no practice experience, and that the other half has a median of less than two years.

Yet at 3 years in, an associate is still a few to several years from making partner, and the odds are strongly against them. At that point, making the jump to academia would be a reasonable move, even if the salaries were much lower.

Second, even frankly lousy law schools have been able to pay what would be rock star salaries (in other fields), because they could charge ridiculous prices, and still fill large lecture halls. Take the Median School of Law (rank, #100). It might charge $30K/year or more, yet the job outcomes are lousy, and the salaries worse. If one took a magic wand and bumped their placement up to 90%, it'd still be a bad bargain.

These schools are going to have to cut their costs by a large amount, and still have far smaller class size (a few are chosing to admit any warm bodies, but that will bite in a few years).

I believe that faculty hiring has already gone to a fraction of what it was back in 2010, and it will stay so. This means that the jobs:candidates ratio has dropped, which means that the typical salaries will fall.

[anon212]

To my understanding, the real reason for higher law school faculty salaries is because if you set the salary at English professor levels, many law professors would spend much more of their time consulting. Those entering academia wouldn't cut ties with the firms they are leaving, but would try to continue in some sort of "of counsel" role. This is the norm in places like Australia where university faculty are unionized, and thus all get paid the same regardless of department (or so it was 20 years ago). There are still some professors who spend a lot of time (more than the ABA allows) consulting, and some new professors who don't break their ties to their old jobs completely. But despite those exceptions, the norm is that law professors are paid to have a full-time job, and to consult only a little if at all. Whether the world is a better place because of this is another question, but I can tell you that if full professors were making 75K instead of 150K, the response wouldn't be to quit and try to get a job as a partner at a law firm, but to try to get paying part-time gigs within the scope of the professors' expertise.

[CleverAnon]

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.

[Jason Yackee]

I think most of these comments miss the most basic reason why law prof salaries are where they are. 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, as academia defines it. If my law school pays its new hires significantly less than other comparable schools, we will lose candidates to those other schools. That is a fact! You can argue about whether we should or should not be competing, but once we decide to compete, the level of salary necessary is more or less out of our hands. The solution to this problem is an illegal one! Coordinate among law schools to reduce competition in the entry and lateral markets.

Schools like Wash U, NYU and so on chose to pay very handsomely to win the inter-law-school competition for faculty, and as a result they now have faculty of a very high quality, by legal academic standards, who are paid very handsomely. Whether those expenses are sustainable in the new environment is in question (I understand that Wash U is particularly over-extended and facing very serious budget issues--they will have to lower faculty salaries, fulfilling Tamanaha's wishes), but those schools chose to compete in the market, and, for a while, they "won" very smart professors, who publish in top journals, and their USN rankings soared. The high salaries were an institutional choice, and not obviously an "irrational" one at the time.

How to adjust in the current environment is of course the main problem. Tenure and civil service protections means you can't shed workforce as easily as you can in the private sector. You can always start offering new hires less money, but no one is hiring, and anyway you still have a large overhang of professors whose salaries were set under different market conditions. But deans still have some covert tools to "encourage" faculty to leave over the short term (and in case of real financial difficulty, most law schools will be able to invoke "financial crisis" as a justification for firing professors or, more likely, reducing salaries across the board), and over the medium term anyway, doesn't it seem like the problem will solve itself? No raises means the real value of salaries deflates; highly paid senior faculty retire (and are not replaced, or are replaced by juniors at new, lower, market rates), and the system stabilizes at a new "market price" for lawyers.

So I think a lot of the hand-wringing about law profs being paid "too much" wrongly implies that its the law prof's "fault", and it exaggerates the difficulties of a market correction to the current situation of "high salaries".

[Nitis]

I dont understand CleverAnon...

[JillyfromPhilly]

I think Jason Yackee's comment misses the reason why law profs salaries are where they are: unlimited student loans made available by the federal government that allow schools to charge tuition that bears no relationship to the value received by students earning a juris doctor degree. Without the exorbitant tuition and the influx of students being led to believe that borrowing tons of money for law school is a terrific idea, schools would not be able to compete for law prof talent by offering ever increasing amounts of money.

Professor Yackee chose Wash U and NYU as examples of law schools that pay their professors well. Wash U is ranked #18 and NYU is ranked #6 according to US News. This is a familiar strategy of law profs when discussing law school issues: choose some elite or semi-elite schools and use those as examples of law schools in general, despite the fact that they are within the top 10% of schools overall. What about the other 90% of law schools? Can some law profs at decent schools like where Professor Yackee is employed discuss why tuition and law prof salaries are what they are at average to poor law schools, given the dramatic drop-off in student outcomes between the elite and the rest?

How about a hypothetical: what would happen at the bottom 90% of law schools if the federal government were to require that law schools place at least 80% of graduates in long term, bar required jobs, funded by an outside employer (not the law school itself), within 9 months of graduation in order to qualify for federal loan money for incoming students?

[anon]

Jilly

Excellent suggestion. This standard would work for me even at the 50% level.

And, make sure that at least 25% of the law school tuition revenue comes from sources other than federal loans.

The profs's salary issue will then take care of itself, and, if applicants get wise to the VAP game, law schools will then need to confront the consequences of the sort of unethical games they have been playing with adjuncts, VAPs, etc. (i.e., pay exorbitant, mainly unjustified salaries to underperforming tenured faculty and stiff all the rest to make up the difference).

[SillyJilly]

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.

[Orin Kerr]

Jilly, I don't see the conflict between what Jason Yackee wrote and what you are saying. Jason is saying that salaries were set in the boom times when schools were flush with cash and were competing to retain faculty talent, and you're saying that schools were flush with cash because of unlimited federal loans. Can't both be correct?

On the other hand, I'm interested in hearing more from Jason about this paragraph:

*******
Deans still have some covert tools to "encourage" faculty to leave over the short term (and in case of real financial difficulty, most law schools will be able to invoke "financial crisis" as a justification for firing professors or, more likely, reducing salaries across the board), and over the medium term anyway, doesn't it seem like the problem will solve itself? No raises means the real value of salaries deflates; highly paid senior faculty retire (and are not replaced, or are replaced by juniors at new, lower, market rates), and the system stabilizes at a new "market price" for lawyers.
********

What are the covert tools you have in mind? Also, while highly-paid senior faculty will retire eventually, that can take decades: That sounds more like a long-term dynamic than a medium-term one.

[anon]

SillyJilly

Excellent! And, as a result of the want of their tuition dollars, shuttered.

This is not a problem, SillyJilly, this is an objective means to discipline law schools that refuse to wake up: reform or go out of business.

As the ABA won't do its job, it is up to the feds to regulate underperforming/unethical law schools out of existence by means of controlling their access to federal student loan money.