February 26, 2013
The VAP Debate
Posted by Christine Hurt

I was catching up on blog reading yesterday and noticed a post by Eric Muller at The Faculty Lounge entitled " Are We Sustaining a VAP Trap?."  Catchy, I thought, but the thought of VAPs as traps didn't quite resonate with me.  Then I looked at the comments.  As of today, there were 141 comments.  Wow!  I had flashbacks to 2005 when we used to blog about anonymous grading and other "hot topix."

The comment thread is full of criticisms of VAP programs from posters who refer to themselves as "sad VAP' and "another VAP out in the cold" and other handles reflecting a disappointing hiring season.  Some analogize to the "law school scam" narrative of law school applicants being duped somehow into borrowing money to finance what is a much riskier venture into the shrinking law job market.  Hmm.  I am always sympathetic to folks on the job market, but here are some points to ponder before we label programs "traps" or "scams."

The hiring market is tough.  Definitely the market for law faculty is shrinking and is probably only in the beginnings of that contraction.  The last few hiring seasons have definitely seemed tougher for candidates from my obviously limited point of view.  I've seen a lot of candidates end up a little lower in the law school chain of being than I would have suspected or even go through the process twice, but the hiring market has never been perfectly efficient.  But, we can determine if schools are hiring fewer candidates.  The AALS keeps statistics on how many candidates are in the FAR register.  (Unfortunately, the last year that is posted on the website is for 2008-09, but any enterprising person could get the number from a colleague on the appointments committee with access to the register.)  Then, one could cross-reference that against the various blog postings with (admittedly incomplete) lists of the lucky hires (earlier ones from Larry Solum and recent ones from Sarah Lawsky).  When I went on the market over a decade ago, the general rule of thumb was that 10% of the FAR candidates landed in a t-track job (a little less than 1000 registrants; a little more than 100 hires).  This may be less now, but we would need to look at the numbers.

Evaluating a VAP program is not tough.  Back in the stone age, there were a handful of formal, yearly "fellowship" programs, mainly at very prestigious law schools, and in many of those, fellows taught legal writing.  Other schools had informal, occasional programs, mostly for their own alumni.  (I am, of course, thinking of the nicknamed "Lawless VAP'" at Illinois, whose nickname referred to my colleague, friend and neighbor, Bob.)  Then, in the past decade, a thousand flowers have bloomed.  Many law schools have VAPs or fellowship programs, and some have multiple ones.  The route to t-track law teaching seemed to not be the "clerkship, fancy law firm, article" track of yore but either the Ph.D. track or the "clerkship, fancy law firm [optional], VAP, multiple articles" track of the future.  So, how is one to choose between so many?  Lots of good tools here.  First, one can look at those Entry Hiring Reports referenced above, which list all the self-reporting new hires and their various VAP/fellowship programs.  And, many VAP programs list their placement records on their websites (e.g., here and here).  If that data is not listed, ask.  These are not hard statistics to find or recount in a telephone conversation.  Placement statistics for a law school's graduating class are fuzzy, hard to find, hard to analyze and easy to fudge.  But, ask me where my law school's VAPs have placed in the past few years, and I will be able to tell you off the top of my head, as would any member of the faculty.  Alos, ask the school you are considering what they would do if a VAP didn't place during his/her second year.  And, ask the school what sorts of efforts they make to mentor and place their VAPs.  Any faculty member who has been associated with appointments knows which VAP programs help their candidates and which basically give VAPs an office.

Lastly to this topic, candidates should choose a VAP program as carefully as they would a graduating institution.  Don't pick one merely because it's where you live, so it doesn't require you to move.  And, don't pick one merely because you think that's where you want to end up teaching.  Sometimes this works for people; sometimes it doesn't.  Some schools have rules or norms against it; some schools may give you misguided optimism.  As Orin Kerr put it in the comments to Eric's post, VAP candidates should be sophisticated consumers, and the information they need is cheap to acquire.

Law schools generally benefit from placing VAPs, not from the VAP labor.  The trap/scam analogy seems to break down over the element of intent.  Yes, law schools generate income by admitting law students.  But, the law schools I'm familiar with get VAPs who teach 2/3 load and no service for about 1/2 pay.  (Get it, VAPs don't pay tuition; they get paid.  And, yes, I do know there are opportunity costs.)  That's not a huge bargain for schools.  Adjuncts are much cheaper if schools just want a cheap labor source, and experienced, practicing adjuncts have other benefits.  But, if a school has a successful program, it will attract bright, energetic faculty who will go on to wave the school's flag for years.

VAPs should keep their options open.  One of the first comments to Eric's post was from Michael Risch, who posited that most VAPs could go back to practice if they did not land a t-track post.  Many commenters cried foul and argued that "failed VAPs" were stigmatized and shut out from future legal employment.  Unfortunately, VAPs who are finishing this year left practice at a bad time and are re-entering at an only slightly-better bad time.  I am aware of three past VAPs at Illinois (two from our informal program and one from our formal program started a few years ago) who returned to their successful practices.  Each case was different, but each one decided that practice was more appealing than teaching.  None went on the market, but I don't think that would have mattered.  I think each of these individuals kept doors open when they entered the VAP program, rather than leaving with the air of an escapee, and kept close contact during their time here.  So, if someone is considering leaving a successful associate position for a VAP, he/she should be nice and even talk to someone about whether returning to that position would be an option.  If someone entered a VAP because their firm was laying off or otherwise failing, then yes, re-entering at a new firm will be a challenge, just as finding new employment from your firm two years ago would have been a challenge.  Finally, some VAPs are coming from clerkships or Ph.D programs and don't have a practice to go back to but merely good relations with summer employers, perhaps.  Then yes, entering the market for the first time will be challenging.  I don't think post-VAP practice opportunities hinge on whether you are a "failed" VAP or not, but what your law firm connections were when you entered the VAP (and whether you kept them).

Eric wonders whether it's ethical to maintain VAP programs.  Orin says yes, as long as schools are honest about the prospects.  I agree.  I don't think programs have to have a 100% success rate in order to be ethically continued.  However, schools don't seem to have an incentive (to me) to continue programs that continue to fail for a number of years.

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