Month: January 2013

I’ve now bumped the Law School Hiring thread and the VAPs and Fellowships thread for the final time. In late February or early March, I will open the final hiring thread, in which I will collect information about actual hires and aggregate that information in a spreadsheet. Some positions have already been accepted, of course, but based on previous years, I think it’s best to wait to open the thread until there is a critical mass of hires. If you want to submit hiring information earlier than that, though, feel free to email me at slawsky *at* law *dot* uci *dot* edu.

Posted by Sarah Lawsky on January 31, 2013 at 06:24 PM

[Originally published 11/26/12; final bump, 1/31/13.]

As requested, here is this year’s open thread in which comments can be shared regarding news of interviews for or appointments to VAPs or similar fellowships (for example, the Climenko and Bigelow). (Here is last year’s thread.)

[If someone wants to aggregate this information, email me, slawsky *at* law *dot* uci *dot* edu, and I will set you up with an embedded spreadsheet.]

Posted by Sarah Lawsky on January 31, 2013 at 06:14 PM

Comments

Anon, I’ve seen nothing about the new normal that’s been written. Several people at my school, for example, may never embrace that such a thing exists.

Posted by: VAP | May 20, 2013 7:45:53 PM

Tier 2 VAP, I did just get a rejection letter from UCLA. Anon, my application and the letter just referred to The Clinical Teaching Fellowship.

Posted by: Adjunct | May 17, 2013 9:27:23 PM

I’m sure you’ve all seen the many guides on getting a job in law teaching that are available on law school websites, professors’ blogs, and elsewhere. But most of these rehash the same information, aren’t granular enough, or (most importantly) were written too long ago to help aspiring profs understand the “new normal” in legal academia. What are the most recent, most helpful guides – especially geared toward VAPs – on landing a tenure-track job at a law school?

Posted by: Anon | May 17, 2013 12:05:46 PM

Which UCLA fellowship? I thought there were several.

Posted by: anon | May 16, 2013 11:59:28 PM

Adjunct, I recently followed up with UCLA and got my rejection, which they promised me had been sent out months ago. Apparently ours both got lost.

Posted by: Tier 2 VAP | May 16, 2013 6:52:54 PM

Wake Forest sent me a rejection e-mail quickly. I’ll take it, considering I never heard from UCLA, despite a follow-up.

Posted by: Adjunct | May 16, 2013 5:30:50 PM

Have folks applied to Wake Forest and, if so, did you get confirmation about your materials having been received?

Posted by: anon | May 13, 2013 1:08:22 PM

Only 1 of my three interviews was for a “stopvap.” The other two are for renewable, non-TT jobs. Each of the three is very different. As for rankings, only is the same rankings-wise. Neither of the other two is better ranked than my current institution.

Interviews have all been very variable. The stopvap interview was a telephone interview and that’s it. One was a telephone interview followed by a full-day on campus with a faculty presentation, etc. The other was a questionnaire followed by a half-day on campus interview where I was asked to prepare and teach a lesson to a class.

Posted by: Tier 2 VAP | May 13, 2013 8:17:03 AM

@Vapple: I’m not Tier 2 VAP, but I am in the middle of my second VAP. I pretty much rolled into this job, which isn’t an established program. The school is far behind the school of my first VAP in terms of ranking, but the two jobs are incomparable. My first VAP was one of the well-known ones and really more of a fellowship: light teaching loads and lots of “grooming” for the market. At my current VAP I am treated more like a regular faculty member and teach the same number of doctrinal courses a TT professor would teach. For me, regardless of whether this will lead to a TT position, it is valuable experience that complements my first VAP.

The interviews for my second VAP took a full day and were more like a callback for a TT job. The faculty members didn’t seem suspicious of my failure to have landed a TT job; they all seemed to realize that very strong candidates sometimes strike out and viewed this as an opportunity.

Keep in mind that I interviewed for this position more than a year ago, so I am not sure how relevant my experiences are for candidates who are looking at a second VAP now.

Good luck everyone!

Posted by: VAP4ever | May 13, 2013 12:27:03 AM

@Tier 2 Vap: This is for your second (stopgap) VAP – “stopvap,” I guess? If so, how do the schools where you’re interviewing compare to your current host institution, rankings-wise? And how have the interviews differed from your first round of VAP interviews, since everyone knows that a lot of VAPs are treading water right now?

Posted by: Vapple | May 12, 2013 5:17:44 PM

I’ve had three decision-round interviews in the last 10days and continue to see additional opportunities pop up. Of course, rejections letters continue to trickle in with the new postings. Over at the faculty lounge, Wake Forest just posted about needing a Civ Pro VAP and Ave Maria said that they are looking for someone in commercial law (oddly, though my acknowledgement letter from them said they’d review after classes had begun…).

But if you haven’t already broaden your search, I’d suggest that you start soon.

Posted by: Tier 2 VAP | May 11, 2013 3:56:49 PM

So I guess that’s it, then?

Posted by: Vapple | May 11, 2013 12:22:17 PM

Snail mail ding from Temple’s Freedman Fellowship.

Posted by: candidate | Apr 23, 2013 2:49:34 AM

Dinged by UCLA’s Milken fellowship.

Also, I agree with Vapple. You are much better off than VAPs who want to go back to practice.

Posted by: VAP | Apr 21, 2013 7:07:13 AM

Are you just finishing up your LL.M. now? (And if you finished it last year, what have you been doing in the meantime?) Unless you went back for an LL.M. in Legal Philosophy, or something equally inapplicable to practice, I would think it would be a reasonably easy sell to tell prospective employers you wanted to acquire greater expertise in X area. And even if you did go for an LL.M. in something esoteric, but at a much more prestigious institution than your J.D. school, you should be able to make an argument for wanting to burnish your credentials in order to gain more traction in the job market.

Posted by: Vapple | Apr 20, 2013 6:35:55 PM

Given the results of the VAP-Trap survey, I am ambivalent about my failure to secure a VAP position for the coming year (or two). On the one hand, I feel a bit like I dodged a bullet. On the other, I have already left practice to secure an LL.M. so I am sort of in the same boat as VAPS left out in the cold in terms of returning to practice. What exactly do I tell prospective employers? I applied to every single VAP and fellowship I could find – on TaxProf, those listed here or on The Faculty Lounge, the ones on higheredjobs, and probably several other sources that escape me now. I applied to about 30 programs but failed to secure so much as an interview. Anyone else in this boat? Do you plan on just doing the AALS hiring conference this fall?

Posted by: VAP-to-be | Apr 20, 2013 5:31:24 PM

UCLA legal skills ding, Savannah ding for both legal writing and TT, Charlotte told me that they are holding off hiring until enrollment numbers are firmer, BU ding suggesting that we weren’t a good match in terms of course offerings.

Lots of movement recently from international law schools, business schools and legal writing/clinical positions at US law schools. I’m growing more optimistic again.

Posted by: VAP | Apr 16, 2013 10:44:04 AM

A friend at Columbia reports that they’ve just completed hiring for the associates and academic fellow programs.

Posted by: nylawyer | Apr 12, 2013 5:44:34 PM

The results of the VAP survey are now up at TFL: http://www.thefacultylounge.org/2013/04/vap-trap-the-survey.html

Anyone gotten an interview from Duquesne for either position (LRW or health)?

Posted by: anon | Apr 11, 2013 2:02:17 PM

E-mail rejection from Bigelow.

Posted by: Vapple | Apr 9, 2013 4:00:58 PM

rejection from Temple

Posted by: anon | Apr 8, 2013 6:51:29 PM

got rejection email from northwestern.

Posted by: resignedvap | Apr 4, 2013 3:39:41 PM

For the health law position at Duquesne, the hiring chair selected the top 15 candidates from the applicant pool (which, apparently, was quite large). Those candidates received email this morning from the chair, so if you didn’t get an email, you are not part of the top 15. Of those 15, the full committee will select 3-5 candidates for flyback interviews. The selection will happen next week, with the interviews to follow later in April. Once those interviews conclude, either the job will be filled or the committee will bring in the next batch of 3-5 candidates, and so the cycle will continue until they hire someone or exhaust the pool of candidates they like.

I don’t know the scoop on the LRW position, but maybe someone else can provide info.

Good luck, folks.

Posted by: FYI re Duquesne | Apr 4, 2013 12:41:09 PM

My phone interviews have been just like my in person interviews. Idiosyncratic.

Posted by: VAP | Mar 28, 2013 3:44:23 PM

VAP: I have the same concern. But I haven’t had an in-person VAP interview.

So my question has more to do with what I should expect in a 30-minute interview. I’m assuming it is the obvious things: publications, research agenda, teaching interests. But curious about what others have experienced.

And thanks, 23kd.

Posted by: VAPplicant | Mar 28, 2013 11:37:58 AM

In what ways do you expect it to be different than a non-phone interview? I don’t like them because I feel like I hit it off with individuals, make good eye contact, etc. that gets lost on the phone.

Posted by: VAP | Mar 28, 2013 11:26:25 AM

Know your research agenda backwards and forwards and be prepare to defend it. Other than that, there might be some questions about what you want to teach, how you want to teach (method) etc.

Posted by: 23kd | Mar 27, 2013 5:38:54 PM

Haha. Amazing advice, VAP. Are most VAP phoners like the AALS interviews? What types of questions should I anticipate and what types of questions should I ask?

Posted by: VAPplicant | Mar 27, 2013 5:21:10 PM

Be prepared to ask at least one question.

Posted by: VAP | Mar 27, 2013 4:22:47 PM

First-time phone interview: What to expect?

Posted by: VAPplicant | Mar 27, 2013 12:18:27 PM

BROOKLYN LAW SCHOOL is seeking applicants for two full-time, one-year Visiting Writing Instructor positions for the 2013-14 academic year. Instructors teach the Fundamentals of Law Practice course to first year students in the fall and spring semesters. The course emphasizes experiential learning, and the small class size enables faculty to give students individual attention. In addition to providing a strong foundation in legal writing, analysis and research, the course simulates various aspects of the lawyer’s practice. Students are introduced to the professional and ethical responsibilities of a lawyer, to the lawyer-client relationship, to peer editing, and to transactional negotiation.

Prerequisites: A strong academic record, excellent writing skills, and a minimum of three years of legal experience after graduation.

Interested candidates should email a resume, brief writing sample, and brief cover letter to:

Professor Marilyn Walter Brooklyn Law School [email protected]

Posted by: anon | Mar 26, 2013 3:19:08 PM

Forgot why I’d come; U Kentucky ding came via snail mail. They said they’d hired someone already. U. Illinois sent me an email a few days ago along the same lines.

Posted by: VAP | Mar 26, 2013 12:53:00 PM

Robin – I had understood that some VAPs had not found jobs after 2 years at Brooklyn, and were not invited to remain at Brooklyn. Sorry to report incorrect rumors. You would surely know better than I.

Posted by: VAP | Mar 26, 2013 12:47:03 PM

To clarify something about Brooklyn: we invited each of our current VAPs to stay for an additional year. There was no decision to “retain some (but not other) VAPs.”

Posted by: Robin Effron | Mar 26, 2013 12:32:22 PM

Hofstra and St. John’s are not keeping anyone on. Brooklyn is keeping some. Not clear about the motivation for Brooklyn to retain some (but not other) VAPs.

Posted by: VAP | Mar 26, 2013 8:28:35 AM

@current vap, Thanks for the response. Do we collectively know of any significant number of schools that are keeping their unplaced VAPs on longer than expected out of a sense of obligation?

Posted by: A. Non | Mar 25, 2013 5:36:58 PM

@A. Non, at some schools VAPs teach doctrinal courses, and are extraneous in years when the school has reduced the class size substantially. In addition, if a school had several VAPs and they did poorly on the job market, it may be disinclined to hire 3 more or may feel obligated to keep unsuccessful VAPs for an additional year, meaning no new VAP hiring.

Posted by: current vap | Mar 24, 2013 9:15:24 PM

I can understand schools reducing their tenure-track hires this year, in light of the uncertain future of law schools and the commitment on the part of schools that TT offers have traditionally entailed. But why the seemingly dramatic reduction in VAP hires as well? VAPs are a relatively low-cost, low-commitment option for schools, SOMEONE still has to teach legal research and writing to 1Ls, and mild declines in enrollments wouldn’t seem to support a decision to go from, say, three VAPs to one, or one to none (unless it’s purely a question of money.)

Posted by: A. Non | Mar 24, 2013 7:23:36 PM

ASU is scheduling interviews.

Posted by: Anonandon | Mar 22, 2013 1:52:01 PM

Any word from temple?

Posted by: Anon123 | Mar 22, 2013 9:17:23 AM

Cal Western says they’re not hiring a VAP

Posted by: VAP | Mar 21, 2013 10:22:29 PM

Georgetown O’Neill Health Law Fellowships and GW Freedman Clinical Fellowships have started reaching out for interviews

Posted by: anon | Mar 20, 2013 9:34:13 PM

@ another VAP out in the cold, what happened to the survey?

Posted by: anon | Mar 18, 2013 5:53:13 PM

Illinois said they’d hired. So if you haven’t gotten an offer, you’re probably not going to.

Posted by: Matt | Mar 18, 2013 4:20:56 PM

Ding from cornell, but no mail from illinois.

Posted by: Anon | Mar 18, 2013 2:43:12 PM

same email from Illinois

Posted by: VAP wannabe | Mar 18, 2013 12:42:10 PM

to anon – yes, the Illinois rejection was by email. it said the position has already been filled.

Posted by: anon2 | Mar 18, 2013 10:50:10 AM

Cornell has emailed candidates about interviews.

Posted by: Big Red | Mar 18, 2013 10:15:10 AM

was the illinois rejection by email?

Posted by: anon | Mar 17, 2013 9:14:09 PM

Rejection from Illinois

Posted by: Anon2 | Mar 15, 2013 2:52:38 PM

Do we already know this for sure? What about academic fellowships such as Illinois and temple?

Posted by: Crashmulder | Mar 13, 2013 5:44:37 PM

Based on what information, VAP wannabe?

Posted by: VAPplicant | Mar 13, 2013 1:07:02 PM

Plenty of schools appear to have decided not to hire VAPs, visitors, and other not TT faculty. Does not bode well for next year!

Posted by: VAP wannabe | Mar 13, 2013 10:35:48 AM

ding from NYU

Posted by: Anon | Mar 6, 2013 11:03:22 PM

lawerying ding from NYU

Posted by: VAP wannabe | Mar 6, 2013 10:11:11 PM

Sorry to confuse people. I meant to say I got confirmation a year ago when I applied to the VAP program but didn’t get a final rejection, and I accepted a different VAP job. This year I interviewed with them at AALS for a TT position and I got more closure. I’m not on the VAP market this year, just trying to be helpful.

Posted by: vapstar! | Mar 6, 2013 7:27:23 PM

In response to vapstar’s post on March 5 re: Brooklyn, I just sent my materials to Brooklyn recently and received a very cordial confirmation email informing me that Brooklyn will be considering applicants for the VAP program in the next few weeks. Hence, I don’t think they have come to any decisions yet, and you shouldn’t assume that the school’s silence is a unacknowledged rejection. Have faith. If they interviewed you at AALS, they must really like you, so I’m sure there is hope for you yet.

Posted by: anon | Mar 6, 2013 6:40:36 PM

i wonder if people skipped it because they don’t have closure yet (i.e. had callbacks at places that haven’t rejected them, are next in line for an offer, etc.).

Posted by: vapstar! | Mar 6, 2013 1:28:15 PM

I received 18 responses to the survey. I’ll send the tabulated results to Eric Muller (at TFL) as soon as possible. The link will stay open indefinitely (see below), so if you still want to fill it out, by all means, please do. I’m confident this isn’t a true representation of all of us in the VAP trap, but it will do for now. Interestingly enough, a couple of people skipped the question about whether you got any offers. I’m not sure why you’d skip that one (especially that one), but that’s what happened.

http://www.surveymonkey.com/s/DHDZTNN

Posted by: another VAP out in the cold | Mar 6, 2013 1:24:10 PM

And just received a form email rejection from NYU’s lawyering program.

Posted by: candidate | Mar 6, 2013 12:19:45 PM

»

[Originally published 10/14/12; bumped 11/13/12; final bump, 1/31/13.]

We invite those on the market to leave comments on this thread regarding whether they have received:

(a) a callback from a law school and/or accepted it; or

(b) an offer from a law school and/or accepted it; feel free to also leave details about the offer, including teaching load, research leave, etc. A school listed as “offer accepted” may have made more than one offer and may still have some slots open.

Five miscellaneous things:

1. If you don’t want your contact information displayed, enter [email protected] or something like that as an email address.

2. There is a separate thread, “A Clearinghouse for Questions,” for general questions or comments about the teaching market. Please do not use the thread below for general questions or comments. (Such comments will be deleted, not out of hostility or in a judgy way, just to keep this thread focused.)

3. There’s quite a cache of materials relevant to the law job market under the archive categories Getting a Job on the Law Teaching Market and Entry Level Hiring Report.

4. All information should come in through the comments. Our aggregator will use a spreadsheet to aggregate the information. Only the aggregator will be able to edit the spreadsheet, but when the aggregator edits the spreadsheet, those changes will be reflected in the embedded, downloadable version below. Please be patient with the aggregator, who will try to update this spreadsheet once a day, but may have a job, and perhaps may even be on the market. [As of 1/31/13, this thread is no longer being aggregated.]

5. This year’s first hiring thread is here. Comments on that thread are now closed.

Here is the spreadsheet, which is downloadable.

Good luck!

Update: Here is a link to the last page of comments.

Update: As of 2/27/13, comments on this thread are closed. If you have information about entry level hires, please post that information in the comments to the entry level hiring data collection post.

Posted by Sarah Lawsky on January 31, 2013 at 06:12 PM

Comments

Comments on this thread are now closed. If you have information about entry level hires, please post that information in the comments to the entry level hiring data collection post.

Posted by: Sarah Lawsky | Feb 27, 2013 3:28:58 PM

Delighted to have accepted an offer at Penn.

Posted by: jonah gelbach | Feb 27, 2013 3:20:14 PM

Seems like it might be a good time to start compiling the final list of accepted offers —

Posted by: Anon | Feb 27, 2013 9:35:12 AM

Is the hiring finished? Any outstanding offers left?

Posted by: Finished? | Feb 27, 2013 7:10:31 AM

White Male —

In case you’re too lazy to go back through the thread, the argument goes like this:

White male candidate: It seems like similarly-situated women and minorities are getting a lot more interviews than I am.

Woman or minority candidate: I don’t think that’s true. Look at the professoriate. It’s predominantly white males. How could there be a hiring bias against them?

Another woman or minority candidate: Besides, there may be a little bit of affirmative action getting AALS interviews, but that’s all it gets you. First round interviews. Not callbacks and not jobs.

Another white male: Wait, just because current professors are largely white and male, current hiring preferences can’t be biased against them? That doesn’t make sense. And besides, even if it’s only a preference in getting first round interviews, that’s a huge advantage.

While male professor: The white guys are right. There are totally people at my school who won’t vote for any white male candidates out of principle.

WoMC: Wait, white professor. What candidates did you hire in the past two years. Were they ALL non-white or women?

WMP: Well, ahem, you see, there were some real superstars that we couldn’t pass up on, white male or not. But in general…

AWoMC: Aha! So white males can get jobs at your school, it’s just a lot more competitive!

WMC: Hey, wait! Is that supposed to make me feel good? I have a lot tougher road to hoe than a minority or a woman?

WoMC: Yeah, but you come from a system with a lot of built-in advantages. It’s easier for you to find mentors at schools and firms filled with white male professors and partners. You had an easier time in practice because you weren’t seen as a ticking baby time bomb. Preferencing white or minority candidates just balances the scales a little.

AWMC: But how do you know if your tipping them too much? Should being a woman or a minority be worth one extra publication or three? Does it bridge the difference between Yale and NYU, or Yale and a non-T14 school?

On and on and on…

Posted by: Fellow white male | Feb 26, 2013 1:04:52 PM

Folks – just fill out the survey:

http://www.surveymonkey.com/s/DHDZTNN

Let’s get our stories told based on the facts we can aggregate without revealing anyone’s identity or speculating as to why we didn’t get a job. Let’s just show the “world” our accomplishments and let those stand for themselves.

Posted by: another VAP out in the cold | Feb 26, 2013 12:56:30 PM

Can we please not have that debate again on here?

Posted by: anon | Feb 26, 2013 12:10:00 PM

Any other straight white males feel like they had an extra hard time on the market this year? I know it was a tough year for everyone, but it seems like “diverse” friends with similar resumes had an easier time. Perhaps it was my personality that cost me the jobs, but all of these affirmative action notices at the end of postings make me think I am the only type of candidate that is not wanted.

Posted by: White Male | Feb 26, 2013 7:19:25 AM

Charlotte has actually already done a handful of on-campus interviews, but I understand they are continuing to interview.

Posted by: Anon | Feb 25, 2013 10:36:49 AM

confirmation that Charlotte is starting to conduct screening interviews.

Seattle said they may bring back additional candidates for on-campus interviews, but also may (suggested to be more likely) offer people slots as visitors.

Posted by: VAP wannabe | Feb 25, 2013 9:01:30 AM

If you’re a candidate who didn’t place, please fill out this quick and anonymous survey:

http://www.surveymonkey.com/s/DHDZTNN

Thanks.

Posted by: another VAP out in the cold | Feb 25, 2013 2:10:31 AM

Apologies, but … back to the substantive business at hand?

Does anyone know if the few remaining law schools yet to be obviously done for the year have made any choices yet? Does anyone know of lateral-moves-related Spring hiring? Does anyone know of decisions made re near term hiring freezes? Anyone else have tales from the on-campus pre-professor centers, like the poster a week or so ago? Anyone have contrarian thoughts, that the future is not so bleak as some of the posters have suggested?

Posted by: Anon | Feb 24, 2013 7:17:20 PM

“just don’t lie”, that’s a little bit too much “I can’t say” to take it seriously…

Posted by: Anon | Feb 24, 2013 7:04:08 AM

I found out some information from a completely different source (i.e., not anyone on the faculty at the school) and figured it out. There’s absolutely nothing I can do about it.

anon2 – If you really think so, maybe ask someone you trust who is outside of the school but might know the inside scoop anyway, or perhaps a very trusted member of the faculty, though if you really suspect the dean is lying to you, then perhaps you want to rethink whether you’d want to go to that school at all.

VAP wannabe – I can’t say, sorry.

Posted by: just don’t lie | Feb 23, 2013 4:27:32 PM

What sort of lies are we talking about? They don’t really think that we are very qualified and wish they could hire us?

Posted by: VAP wannabe | Feb 23, 2013 10:54:22 AM

Just don’t lie, how did you catch them in the lie? I think a Dean is probably lying to me, but have no way to find out if he is. This is the worst hiring process of my life. Schools really need to get their act together.

Posted by: anon2 | Feb 23, 2013 10:05:20 AM

It is my understanding that Buffalo is done with its entry-level hiring.

Posted by: anon | Feb 22, 2013 11:08:19 AM

Anyone hear from Buffalo or Fordham?

Posted by: Anon | Feb 22, 2013 7:11:57 AM

Who knows… better to say nothing at all than to fabricate something.

Posted by: just don’t lie | Feb 21, 2013 2:55:00 PM

Why do they lie? Is it to protect their reputations? Or is it to get your to agree to do something after which they take advantage of you? I think the latter is worse.

Posted by: Anon | Feb 21, 2013 2:38:02 PM

I have no positive additions to this thread, so feel free to stop reading this comment now.

I recently found out that an important person in my hiring process straight out lied to me. Really?! And these are the people who are supposed to be teaching and modeling professionalism?! Committee chairs and members, deans, and everyone else out there involved with this process who has the upper hand by definition — we deserve the truth, or at the very least, we deserve to not be told lies. We are professionals too. Treat us as such, with some basic level of respect.

I remember reading an earlier comment that a candidate had been lied to, and a string of comments followed saying that it wasn’t a lie or that maybe there was another explanation. I remember thinking “come on… you’ve got to be making that up. You probably misunderstood.”

Nope. Lying. Flat out lying. I’m confident it’s not the norm, but the fact that it happens at all is horrific. And it does happen. I’m living proof.

By the way, fairly frequently, lying is how law suits start. But you must know this already since, you know, you’re law professors.

To those faculty out there who *aren’t* lying to candidates, you might want to instill some professionalism in your colleagues.

To the other candidate(s) who experienced this, you’re not alone, and I’m sorry I ever doubted you.

[If you’ve read this far, you’re probably wondering about the details of what happened. I can’t disclose. Sorry.]

Posted by: just don’t lie – it’s not that hard | Feb 21, 2013 1:42:43 PM

Anyone hear from Victoria or Calgary?

Posted by: Anon | Feb 21, 2013 5:07:13 AM

anon @ Feb 19: if i may ask, which ones in particular?

Posted by: anon anon | Feb 20, 2013 12:21:27 AM

Anon @ 7:06 – If a school strikes out on landing a lateral in an area that it needs covered, then their main option for filling the gap is to return to the entry level pool and offer one of those candidates a visiting or full-time position. From what I’ve heard, there is at least some hiring of this type each year…but, given market conditions, who knows how much there will be this year.

Posted by: Max Helveston | Feb 19, 2013 11:50:16 AM

seconding statement by anon at Feb 18, 2013 11:08:07 PM….hearing thawing sounds from multiple top-10 schools

Posted by: anon | Feb 19, 2013 11:14:16 AM

Penn State’s b-school has started interviews. UGA’s b-school has finished its three on-campus interviews, but I have not heard whether an offer has been made yet. Any additional information would be appreciated.

Posted by: B-School 2 | Feb 19, 2013 10:09:07 AM

Anoni, Temple has said they’ve begun to review applications, and U. Wisconsin-La Crosse sent a request for more information. No other B-school jobs have given me any sort of update.

Posted by: B-school wannabe | Feb 19, 2013 7:50:40 AM

Thanks, Max. I am guessing that most schools will want to be finished with all hiring by March 15. Does anyone have information about whether schools routinely hire after that date?

Posted by: Anon | Feb 19, 2013 7:06:36 AM

To Anon, Feb 14 at 11:05 (asking about the lateral market):

Unless schools are going to break AALS’s timing rule for lateral/visiting offers, all hiring on that front will be done by March 15.

AALS Statements of Good Practices: Offer of Appointment. To permit a full-time faculty member to give due consideration to an offer and timely notice of resignation or request for leave of absence to his or her law school, a law school should make an offer of an indefinite appointment as a teacher during the following academic year no later than March 1 and of a visiting appointment no later than March 15.

Posted by: Max Helveston | Feb 19, 2013 12:16:25 AM

there seems to be some movement in the top 10-15 law schools now and more expected in the next few weeks.

Posted by: anon | Feb 18, 2013 11:08:07 PM

Belmont is done with hiring.

Posted by: G-Ice | Feb 17, 2013 11:57:29 AM

Heard that Saskatchewan did make an offer, have heard nothing on Calgary’s six spots.

Posted by: Anon | Feb 15, 2013 8:04:49 PM

Savannah has started their first round of interviews, as has Charlotte. Is Belmont hiring? What areas?

Posted by: Anon | Feb 15, 2013 8:47:18 AM

Earlier posts asked about Calgary, Fordham, any news there? Also several less prestigious schools were hiring down South, did anyone ever hear from those? Thinking Belmont and Savannah, are these new schools still adding faculty? Has anyone on this thread made efforts to apply for the various B-School business law spots, how did that market go this year? Must admit, trying to develop a statistical perspective as the news continues to, well, bear watching…

Posted by: Anoni | Feb 15, 2013 5:50:22 AM

Is the lateral market happening now, or is that even later?

Posted by: Anon | Feb 14, 2013 11:05:12 PM

Wow, that killed the thread.

Anyhow, the world continues. There are a variety of law postings from the last couple months. Hope for some goes on …

Posted by: Anon | Feb 14, 2013 7:36:32 PM

Anyone know what the story is with UConn? Which positions are filled?

Posted by: Anon | Feb 14, 2013 6:22:31 AM

Dudes, you killed the thread…

Posted by: Anon | Feb 14, 2013 3:50:26 AM

UCLA is making calls.

Posted by: go bruins! | Feb 13, 2013 6:05:32 PM

@Anonprof, it sounds like that strategy (creating incentives for older faculty members to retire or phase out) is being implemented in a lot of different disciplines–there was a pretty recent NYT piece about it. It sounds like it could lead to drastic measures at your schools, but isn’t necessarily a bad sign everywhere– some places do it so they can hire someone entry-level or just get rid of dead wood.

Posted by: bunhead | Feb 13, 2013 11:06:50 AM

On the question of getting pushed out of a firm (or the perception that you might have been pushed out or would not have made partner had you stayed), I found it very helpful to have a couple of partners ready to field calls from schools. They want you to succeed and have no qualms about raving about your work and intellect, and it puts committee members’ minds at ease. (I had several schools request law firm references, including a top 75 school for a TT job and a top 10 school for a VAP job.)

Posted by: junior minted | Feb 13, 2013 11:04:48 AM

I would probably look at the experience when the candidate would start teaching. Again, different professors have very different views on this. Some professors, especially those who only have one or two years of practice themselves, tend to discount practice experience and even speak up against it. Others, especially those with more than average practice experience, talk about needing to reach the senior associate level, at the very least.

Personally, as someone with five years experience, I think experience can be valuable, but is not necessary to be a good professor. Even my colleagues with 15+ years of experience get “out of touch” after a few years in the academy. More important, in my mind, is keeping a toe in the “real world” so that you stay relevant throughout your career.

Posted by: AnonProf | Feb 13, 2013 10:50:40 AM

@AnonProf — good points, but some of the VAPs/fellows on the market this year have exactly 6-8 years of practice (before becoming a VAP/fellow) and apparently are the few people who are getting TT jobs in this market.

I never really understood why being told one won’t make partner at some big firm (where schmoozing and not intellectual merit really gets you places) is a dealbreaker for academia. It’s not much different from the case of someone spending 6-8 years as an Assistant then Associate Professor at Harvard, then being told he/she won’t make tenure and then landing tenure at another less prestigious but still great school. And actually not making partner shouldn’t even be as big a deal as getting denied tenure at Harvard, since firms have a value system that is much different from academia, while at least at Harvard the standards are those of academia.

Posted by: Aanon | Feb 13, 2013 10:49:58 AM

@AnonProf or others who know–for practitioner candidates, are x years of experience referring to time of AALS interview or start date of teaching position (typically one year later)?

Posted by: anotheranon | Feb 13, 2013 10:16:38 AM

OTMA, it depends on the school, obviously. One fellow faculty member told me that people are looking to hire replicas of themselves, which I think is generally true. More professors at lower tiered schools have more practice experience and those professors tend to value practice experience more.

I could see some of my colleagues disliking only three years. Two years would make some very vocal. But four years wouldn’t bother anyone on my faculty. Getting to six or seven years and you will get people saying that they are too much of a practitioner, even at my low end third tier school. Also, if they are at a big firm some faculty members will assume the candidate received notice that they were not going to make partner and are being pushed out.

Posted by: AnonProf | Feb 13, 2013 9:47:55 AM

I was told that 3 years was an INsufficient amount of practice experience for some lower tiered schools…

Posted by: on the market (again) | Feb 13, 2013 8:17:14 AM

Also, when I was on the market my advisors told me 5 or 6 years in practice was the tipping point, but I think that is changing and that there may not be a “tipping point” at most lower ranked schools.

Posted by: AnonProf | Feb 13, 2013 7:28:06 AM

My school is supposedly incentivizing older faculty members to retire, and we are not going to replace them. If none agree, we hear that things are going to be very difficult, which I take to mean salary/benefit cuts and/or layoffs. Granted my school is a private, third tier school; many schools may be better off. That said, over 50 schools are ranked below us and are likely in a similar or worse situation. My guess is that next year will be worse.

Posted by: AnonProf | Feb 13, 2013 7:25:33 AM

I don’t think there’s a tipping point at 8 vs 10 years out– depends much more on whether/where/what you’re publishing.

Posted by: bunhead | Feb 12, 2013 11:14:34 PM

@anon: I meant number of years out of law school too. People starting out in academia in their 40s and 50s are typically more than 8+ years out of school.

Posted by: kanon | Feb 12, 2013 9:28:50 PM

@kanon: its not age that matters, its number of years out of law school. People who miss out this cycle and the next because of the awful market who are 8+ years out of law school are unlikely to get a look next go round even if times are flush again.

Posted by: anon | Feb 12, 2013 9:20:54 PM

@ Giving up: I hear you and agree on the next two years being really bad to be on the market, based on what I’m hearing from faculty. However, I don’t think age is as much a barrier to starting out in legal academia (as opposed to other academia). There are plenty of examples of people starting in legal academia well into their 30s, 40s or 50s.

Posted by: kanon | Feb 12, 2013 8:50:31 PM

I 100% agree with Giving Up.

Relatedly, early reaction to unsolicited offers of visits (traditional, not VAP programs) is terribly negative. Lots of quick, “sorry, we’re not hiring this year”-type responses. To me, this suggests that next year will be catastrophically worse. If it were just bad, not hiring TT faculty might be enough. If there is no budget for visitors, it suggests (to me) that enrollment is likely to be down so far that they can just make do with TT faculty (or may even be looking to negotiate separation agreements with TT faculty).

In short, absolutely nothing suggests next year will be any better, but there is much to suggest that next year will be much, much worse.

Posted by: on the market (again) | Feb 12, 2013 8:15:57 PM

Oh, and SCOTUSblog just posted an opening for a summer internship with Nina Totenberg.

Posted by: Awesome | Feb 12, 2013 3:19:35 PM

Who are you calling old?!? Me, I guess. Le sigh. Thanks for sharing the view of the repeat players–I think that is very helpful in terms of figuring out what the consensus/mood actually is. There is so much anecdotal confusion out there.

I think this is a time of great opportunity for the entrepreneurial, rogue intellectual. Contact me off-line if you want my resume. Peace.

Posted by: Awesome | Feb 12, 2013 3:18:13 PM

curious2 —

I think someone else said it above, but the general consensus is that the real question is whether next year is just worse, or whether it’s catastrophically worse. No one thinks it will be better, and I haven’t heard anyone even say that it’s going to be about the same. The big problem is that it’s a perfect storm of schools not hiring, lots of holdover candidates unwilling to give up (rationally in many cases, because they don’t have many other options after leaving practice to do a VAP/fellowship), and lots of professors at the shakier schools trying to lateral to safer places.

My alma mater is one of those schools with a pretty formal pre-academic advising program, and what they’re essentially telling us is: (1) don’t go on the market next year unless you are in the second year of a VAP/fellowship and have no other choice; (2) don’t plan on the market improving — at least not appreciably — the following year; and (3) based on the first two, don’t start a VAP/fellowship program next year unless you have a Plan B for if/when you strike out in fall 2014 (e.g., a PhD in a field that’s hiring). They say that the best play now is to do something else for a few years, publish if you can, and then reassess in 2015 or so. And yes, it sucks because some people are old enough that they might miss their window completely — but that’s still better than being unemployed after a VAP/fellowship and a failed attempt on the market.

Posted by: Giving up | Feb 12, 2013 2:28:04 PM

I’ll take “Emphatically, Yes” for $1000, curious2.

Posted by: apocolypse | Feb 12, 2013 2:21:43 PM

what a year indeed! i guess the question is – is it going to get worse before it gets better?

Posted by: curious2 | Feb 12, 2013 2:03:05 PM

That’s a disturbing combination of information–the distribution of the bulletin with what is probably just a bunch of leftover ads from the fall (that’s what they sounded like to me, anyway) and then simultaneous statement of cancelation. What a year.

Posted by: Awesome | Feb 12, 2013 1:11:20 PM

Yikes. That can’t be good. Does it mean that there weren’t enough applicants to warrant it or that there weren’t enough schools still hiring to warrant it?

Posted by: sigh | Feb 12, 2013 1:08:44 PM

»

Well, I said I was going to post an un- or underexplored question about Erie every day for the month, and that is what I did, as andy-kaufmanesque as the results may have been. People sometimes ask me how I can write so much on Erie (I’m at five articles and have a few more in the works). It may be myopia, but to me the topics of my papers are as different from one another as contract and tort. There isn’t really one Erie doctrine—“Erie” is a code word for a huge set of heterogeneous constitutional and subconstitutional problems that arise from the existence of federal courts (especially federal trial courts) within our federal legal system. That, at any rate, is what I’ve tried to show.

As for my final question, it is this: What can other federal legal systems with federal courts tell us about Erie? Australia, for example, has a federal legal system, federal courts, and even diversity jurisdiction. But things, I am told, look very different (and more Swiftian) down under.

(Parallel posted on Michael Green’s Civ Pro Blog.)

Posted by Michael S. Green on January 31, 2013 at 12:02 PM

Many thanks for a really engaging book club to our terrific set of participants: Oren Bracha, John Duffy, Wendy Gordon, Justin Hughes, Jonathan Masur, and of course our author, Robert Merges. Rob had a pretty busy day providing responses to the other participants, and the result is a club that dives deep down into the book. In case you missed some of the posts, or just want a handy guide for future reference, here’s a chronological list:

• Introductory Post
• Gordon: Thoughts on Justifying Intellectual Property
• Masur: The New Institutional Philosophy of Rob Merges
• Merges: Merges on Gordon on Rawls and IP
• Gordon: Replying to Rob Merges, Justifying Intellectual Property
• Bracha: What Good are Midlevel Principles in IP? [Thoughts on Justifying IP]
• Merges: Midlevel Principles: Response to Jonathan Masur
• Merges: Even More on Midlevel Principles in IP Law – Response to Bracha
• Duffy: Merges and Descartes
• Hughes: More on Rawls and Intellectual Property
• Bracha: Still on Midlevel Principles in IP: A Reply to Rob Merges
• Masur: Masur on Merges on Masur on Merges
• Merges: Justifying IP: Putting the Horse Before Descartes (Response to Duffy)

I have a feeling some of these discussions could continue on into the future. If you haven’t gotten the book, you can find it at Amazon, Barnes & Noble, and HUP, or get Chapter 1 at SSRN. .

Posted by Matt Bodie on January 31, 2013 at 11:56 AM

My month long guest blogging stint here is over. Thank you all for your kindnesses and for the opportunity.

Even with 31 days to work with, I never got to blog here on many of the topics on my dream list: Health Care Price Transparency — Transparent to Whom? Scope of Practice Wars Meet the Contraception Wars: Advance Practice Nurses Independently Prescribing Contraceptives in California A Nation of Liars and Cheats: How Our Health Insurance System Both Shows Us Who We Are and Who We Might Be

I will pick up the thread on my own blog, Missouri State of Mind, at: http://marciarille.com/

It is an amazing moment to be a health law scholar, teacher, and student.

Posted by Ann Marie Marciarille on January 31, 2013 at 11:32 AM

My sincere thanks to Dan Markel for the invitation to guest-blog this month. There are many things left I thought I’d have time to discuss, such as the NFL concussion litigation, which I’ve I’ve spoken and written a little about; and the changes to the Hatch Act that will allow many more government and federally-funded employees to run for office. Another time, I suppose.

If you’d like to keep track of what I’m doing, feel free to follow on SSRN, on twitter @derektmuller, Academia.edu, LinkedIn, SelectedWorks… that’s probably enough for now. Thanks again.

Posted by Derek Muller on January 31, 2013 at 10:15 AM

Comments

Thanks for your great posts, Derek. Come back soon!

Posted by: Rick Garnett | Jan 31, 2013 11:52:46 AM

As The New York Times, reports here, Justice Sotomayor is “heartbroken” over the closing of Blessed Sacrament School in the Bronx. The school is, of course, one of nearly 2000 urban-area Catholic schools that have closed in the last decade alone. The Justice said:

“You know how important those eight years were? It’s symbolic of what it means for all our families, like my mother, who were dirt-poor. She watched what happened to my cousins in public school and worried if we went there, we might not get out. So she scrimped and saved. It was a road of opportunity for kids with no other alternative.”

Right on. For more, see N. Garnett & M. Brinig, Catholic Schools and Broken Windows, here. And, happy National School Choice Week!

Posted by Rick Garnett on January 31, 2013 at 10:09 AM

In this, my final response to the many interesting posts in my book, I want to traverse some comments that John Duffy made. To the other authors of posts, especially those who wrote reactions to my responses — we will have to continue offline. I have taken too much space already. And the many readers of Prawfsblawg who care nothing for IP are I am sure tired of all this.

I am going to skip over the blush-inducing praise in John’s post, and get right to his main point. He says:

” [I]f we are frustrated with the complexities of economic theories and are searching for a more solid foundation for justifying the rules of intellectual property, is Kant (or Locke or Rawls or Nozick) really going to help lead us out of the wilderness?”

John says no. He says further that just as Descartes’ doubts drove him to embrace foundations that were thoroughly unhelpful when it came to elucidating actual physical reality, such as planetary motion, so my doubt-induced search for solid foundations will lead nowhere (at best), and maybe to some very bad places (at worst).

This argument may be seen to resolve to a simple point, one often made in legal theory circles: “It takes a theory to beat a theory.” (Lawrence Solum has an excellent entry on this topic in his Legal Theory Lexicon, posted on his Legal Theory Blog some time back.) The idea here is that utilitarian theory is a true theory, because it is capable of proof or refutation and because it guides inquiry in ways that could lead to better predictions about the real world. By this criterion, deontic theories are not real theories because they cannot be either proven or refuted. Einstein’s famous quip comes to mind; after a presentation by another scientist, Einstein supposedly said “Well, he wasn’t right. But what’s worse is, he wasn’t even wrong.”

My response starts with some stark facts. We do not know whether IP law is net social welfare positive. Yet many of us feel strongly that this body of law, this social and legal institution, has a place in a well-functioning society. Now ,we can say the data are not all in yet, but we nevertheless should maintain our IP system on the hope that someday we will have adequate data to justify it. The problem with this approach is, where does that leave us in the interim? We could say that we will adhere to utilitarian theory because it stands the best chance of justifying our field at some future date — when adequate data are in hand. But meanwhile, what is our status? We are adhering, we say, to a theory that may someday prove true. By its own criteria it is not true today, not to the level of certainty we require of it (and that it in some sense requires of itself.) But because it will be “more true” than other theories on that magic day when convincing data finally arrive, we should stick to it.

My approach was to turn this all upside-down, I started with the fact that the data are not adequate at this time. And I admitted that I nevertheless felt strongly that IP makes sense as a field; that it seems warranted and even necessary as a social institition. So it was on account of these facts that I began my search for a better theoretical foundation for IP law.

If you have followed me so far, you will not be surprised when I say that for me, Locke, Kant and Rawls better account for the facts as I find them than other theries — including utilitarianism. Deontic considerations explain, to me at least, why we have an IP system in the absence of convincing empirical evidence regarding net social welfare. Put simply: We have IP, regardless of its (proven) effect on social welfare — so maybe (I said to myself) *it’s not ultimately about social welfare*.

This is the sense in which, to me, deontic theory provides a “better” theory of IP law. It fits the facts in hand today, including the inconvenient fact of the absence of facts. Of course, we may learn in years to come that the utilitarian case can be made convincingly. I explicitly provide for this in JIP, when I say that there is “room at the bottom,” at the foundational level, for different ultimate foundations and even new ultimate foundations. It’s just that for me, given the current data, I cannot today make that case convincingly. And it would be a strange empirically-based theory that asks me to ignore this key piece of factual information in adopting foundations for the field. To those who say deontic theories cannot be either proven or disproven, I offer the aforementioned facts, and say in effect that an amalgam of deontic theory does a better job explaining why we have IP law than other theories. And therefore that it is in this sense “more true” than utilitarian theory. Again, it fits the facts that (1) we do not have adequate data about net social welfare; and (2) we nevertheless feel IP is an important social institution in our society and perhaps any society that claims to believe in individual autonomy, rewards for deserving effort, and basic fairness.

One final point: to connect Kant with Hegel with Marx, as John does, is a legitimate move philosophically. But I have to add that for many interpreters of Marx, he is the ultimate utilitarian. What is materialism, as in Marxist historical materialism, but a system that makes radically egalitarian economic outcomes the paramount concern of the state? The famous suppression of individual differences and individual rights under much of applied Marxist theory represents the full working out of the utilitarian program under which all individuals can be reduced to their economic needs, and all government can be reduced to a mechanistic system for meeting those needs (as equally as possible)? If we are going to worry about where our preferred theories might lead if they get into the wrong hands, I’ll take Locke and Kant and Rawls any day. In at least one form, radical utilitarian-materialism has already caused enough trouble.

This is hardly all there is to say, but it is all I have time to say. So I will keep plodding along, like a steady plow horse, trying not only to sort out the foundational issues, but also to engage in policy discussion and doctrinal analysis. And with this image I close, having once again put the (plow) horse before Descartes in the world of IP theory.

Posted by Rob Merges on January 30, 2013 at 08:50 PM

Comments

Incidentally, are you familiar with what Rawls himself had to say about Marx? He’s far more favorably disposed than the above caricature. See the three lectures on Marx in his Lectures on the History of Political Philosophy (Belknap Press of Harvard University Press, 2007): 319-372.

Posted by: Patrick S. O’Donnell | Jan 30, 2013 10:55:56 PM

Regarding your “final point:”

I don’t know about “many interpreters,” but I do not think it is true that Marx is “the ultimate utilitarian,” or even a utilitarian simpliciter. In support of that belief I quote from one of the better interpreters of (at least some facets of) Marx’s work, Allen Wood, who writes that while “it is true that Marx’s thoughts about morality have more in common with utilitarianism than with any other familiar position in moral philosophy,” “Marx is not a utilitarian.” Why? One reason is that Marx’s conception of the nonmoral good is not hedonic. A second reason is that “Marx appears disinclined to regard the nonmoral good as quantitatively measurable and summable in the ways required by utilitarian theories.” But more vividly, even if less plausibly, Marx often spoke of moral norms as largely determined by correspondence with the prevailing mode of production (one needs to reconcile this with Marx’s characterization of capitalism as a profoundly unjust system and his clear use of explicit [early writings] and implicit moral judgments [later works] not so determined). Moreover, the Marxist conception of the “good life” does not seem amenable to utilitarianism insofar as it grounded in a notion of self-actualization or self-realization (about which see Jon Elster’s writings on Marx, especially his essay, ‘Self-realisation in work and politics: the Marxist conception of the good life’).

R.G. Peffer, yet another interpreter of Marx, likewise endorses the proposition that Marx’s thinking is not fairly described as a “utilitarian:” “Marx implicitly espouses a principle requiring egalitarian (or relatively egalitarian) distribution…of goods [like freedom (as self-determination), self-realization, and community], especially the good of freedom.” The values and principles by which we might understand, say, exploitation and alienation, are not reducible to notions of utility, preference satisfaction, or the satisfaction of desires, indeed, they appear to be ultimately grounded in the idea of “human dignity [or inherent worth] and the good of self-respect.” Although Marx was not a moral philosopher, his moral beliefs at bottom have more of a (mixed?) “deontological” ring than not. Peffer’s book, Marxism, Morality, and Social Justice (Princeton University Press, 1990), is one of the better treatments of this topic (in particular: 80-114) and I highly recommend it (he also discusses, more broadly, consequentialist readings). Wood, Elster, and Peffer may not be representative of the Marxist tradition as such, but they are among the more sophisticated analysts (along with G.A. Cohen) of the Marxian corpus, and whatever the other differences in their expositions of Marx’s ideas, they all agree that Marx is not a utilitarian.

Posted by: Patrick S. O’Donnell | Jan 30, 2013 10:48:29 PM

Arizona Governor Jan Brewer has decided to endorse Medicaid expansion under the Affordable Care Act. Since this decision requires state legislative approval in Arizona, I am still puzzled as to why press coverage implies this is also Arizona’s decision. Her decision was to stake out the governor’s position. What the State of Arizona will do remains to be seen.

Still, it is an amazing thing — a show stopper really — to see the governor of the last state to participate in original Medicaid come out in favor of Medicaid expansion. Governor Jan Brewer — she who bolstered her political reputation by publicly wagging her finger at President Obama on the tarmac — is all in on Medicaid expansion. Whether this marks the triumph of mathematical calculation over ideology will never be known.

The most important constellation of issues surrounding the NFIB v. Sebelius decision, however, is not whether states will ultimately opt-in to the Medicaid expansion. The Medicaid opt-in is, like original Medicaid, not so much the federal government making the states an offer that they cannot refuse as making the states an offer that they desperately want to find a reason to accept. Even Arizona, after all, ultimately opted-in to original Medicaid, in 1982, with the creation of its Arizona Health Care Cost Containment System (“AHCCS”), still advanced as “Arizona’s single state Medicaid agency” under the authority of a negotiated 1115 Medicaid waiver in place to this day.

What I really want to consider is what concessions will states bargaining in the shadow of NFIB v Sebelius be able to exact from the federal government in exchange for participation in the Medicaid expansion? And how big will the federal government allow the states to dream? Arizona’s original AHCCS waiver, for example, was to include all state employees in its program — a daring proposal that has not survived implementation. At least six states have expressed some interest in bartering block-grant authorization of Medicaid for their state’s participation in the Medicaid expansion.

Medicaid is and has always been a heavily negotiated program, particularly as it applies to “optional populations”. Now that individuals at between the federal poverty level and 138% of the federal poverty level are “optional populations”, the negotiations seem likely to increase in intensity. There are currently 426 active Medicaid waivers. This is not uncharted territory. It is merely, for the ACA, an unexpected voyage.

The history of Medicaid reveals the existence of enormous state power to demand unique degrees of buy-in to Medicaid expansion. That is the lesson of the state-by-state brokered buy-in for original Medicaid. That is also the lesson taught by the historic use of the Health and Human Services (“HHS”) Secretary’s Section 1115 waiver authority to allow an extraordinary range of state-level experimentation. Section 1115 strongly suggests that the HHS Secretary may offer states individual bespoke Medicaid programs. But whether states can demand them is a harder question.

Excerpted from “Let Fifty Flowers Bloom: Health Care Federalism After NFIB v. Sebelius” (forthcoming, draft available on SSRN) and a follow up work in progress: “The Medicaid Gamble.”

Posted by Ann Marie Marciarille on January 30, 2013 at 08:26 PM

Comments

Thank you. I have enjoyed your draft book chapter on “Federalism by Waiver After the Health Care Case” posted in SSRN.

Posted by: Ann Marie Marciarille | Jan 31, 2013 11:07:51 AM

Really, really important set of issues. I look forward to seeing the new article!

Posted by: Sam Bagenstos | Jan 30, 2013 8:54:56 PM

I greatly appreciate Rob Merges’ generosity in taking the time to respond to my original post. His response is, characteristically for Rob, incisive and thoughtful. I am not sure, in the end, how much we really disagree. But I will take a shot at briefly disentangling and clarifying a few points with the goal of identifying whether or not disagreement actually exists.

Rob is absolutely correct that there are two separate questions: 1) whether an IP system can be justified at all; and 2) how well a particular system is performing. Rob argues that, with respect to question #1, the IP system cannot be justified on economic (by which we mean utilitarian or welfarist) grounds. Why would this be? One possibility is that utilitarianism or welfarism or consequentialism (which is what we mean when we talk about an “economic” foundation) cannot provide a morally satisfactory basis for intellectual property rights. There is a short section in the book (pages 151-153) that coulud be read as developing this argument, but that section is better understood as a critique of a completely unfettered free market, a point with which few economists would disagree. As a general matter, the book does not appear to be making this point, and indeed it would be a mammoth undertaking to do so (even for Rob Merges and this book) given the extensive arguments that scholars have been making for centuries about welfarism as a moral foundation. Rob will correct me if I am wrong, but I do not understand this to be his main argument.

A second possibility is that economics (read: utilitarianism or welfarism) cannot generate the midlevel principles that operate in intellectual property. But as I pointed out in my previous post, it can generate them — or at least the ones that are really central to the American IP system.

The third possibility, and the one I understand Rob to be advancing, is that the IP system, as it is currently constituted, does not actually promote the utilitarian ends that an economic approach would demand. That is: as an empirical matter, IP doctrines as they operate today do not actually increase social welfare. As Rob wrote in his post:

“The data required by a comprehensive utilitarian perspective are simply not in evidence in this field — at least not yet. Put simply, I do not think we can say with the requisite degree of certainty that IP systems create net positive social welfare.”

That seems exactly right to me, and this is why I believe that Rob and I are actually in violent agreement as to most of the important issues. But this means that economics fails in response to Rob’s question #2 — how well is the system actually performing? — rather than question #1, which is how the IP system can be justified on a theoretical basis. That is why I wrote that economics has failed an empirical test, while Rob’s deontic theory has passed a theoretical test. This touches upon an excellent point made by a commenter to my first post. This is not a reason to abandon deontic theory; rather, the point is simply that when we evaluate different types of theories, we should do on comparable grounds.

Nor do I mean at all to say that Rob’s deontic theory is not correct, or compelling, or even superior to economics. It is certainly the first two and maybe the third as well. It is just that I do not believe a utilitarian economic theory can be ruled out on the theoretical grounds used to evaluate Lockean and Kantian deontic theories. Economics is part of the overlapping consensus as well.

Posted by Jonathan Masur on January 30, 2013 at 05:53 PM

A friend at the AALS writes with the following:

Have you ever considered making a lateral move or had to advise a junior faculty member regarding how best to do so? One possibility you might consider is signing up for or advising your colleague to sign up for the AALS Visiting Faculty Register. This register lists experienced faculty members willing to visit for a semester or a full year in the next academic year. Associate deans and hiring chairs check this resource often to fill their curricular holes, especially at this time of year. Moreover, being on this list may signal to hiring committees your willingness to relocate; however, you should be willing to consider various visiting opportunities should they become available. Notably, many schools like to hire laterals as visitors first to test compatibility. Please note that you must have at least three years of full-time law teaching to register and be a full-time faculty member at an AALS Member or Fee-paid school.

Posted by Administrators on January 30, 2013 at 05:31 PM

Comments

I understand why someone at the AALS would recommend using an AALS registry, but it strikes me as a very odd choice if you are looking to make a lateral move. The purpose of the list is to let Associate Deans know where they can find podium-fill visits. Given how rare it is for podium visits to turn into lateral moves, it’s not clear how putting your name on a list for podium-fill visits is going to get you considered for a lateral position. I suppose it is literally true that “many schools like to hire laterals as visitors first to test compatibility.” But they do that as part of a look-see visit, not a podium-fill visit. It would be a disservice to faculty members if tis list encouraged them to apply for and accept podium-fill visits — often meaning moving themselves and perhaps their families hundreds or thousands of miles away — on an apparent misunderstanding that there is a good chance it will lead to permanent consideration and a possible lateral offer. It’s theoretically possible, but very rare.

As for advice to “Junior,” if you’re interested in a lateral move, I’ve seen two basic strategies for drawing the attention of lateral appointments committees. The first is publish-and-wait: publish a lot, speak at conferences, and otherwise make yourself visible, with the hope that committees see the good work and contact you. The second is to make polite inquiries: contact people you know at particular schools you are interested in (if you know people at those schools) or the chair of the appointments committee (if you don’t) and let them know of your lateral interest. If they’re interested in you, they’ll follow up.

Posted by: Orin Kerr | Jan 31, 2013 2:18:23 AM

I saw this email also posted on The Faculty Lounge. If I were looking to lateral, my concern would be that my current associate dean would see my name, too. Given that issue, what would you then advise a junior faculty member to do?

Posted by: Junior | Jan 30, 2013 6:16:20 PM