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University of Texas' Emerging Scholars Program part of law school trend
by Erica Winter
Having a two-year (instead of a one-year) program "is critical for us," says program chair and Professor Mitchell Berman. "We want people to be immersed here for a while," says Berman. With a primary goal of allowing the fellows to build up their scholarship, having a two-year program is central to that goal because of the way in which law professors are hired.
Like a casting call for a large Broadway musical, new law professors are hired through a centralized mass-hiring process that starts every August, explains Berman. Interested candidates submit materials to the American Association of Law Schools. A first cut is made, and then candidates flock to Washington, DC, in late October or November for interviews. Then there are "fly-backs," or second interviews, and hiring decisions are made.
If a recent J.D. finds a position as a visiting assistant professor, but it is a one-year gig, then he/she is spending her first semester on the job scrambling to get his/her teaching legs under him/her and applying for permanent jobs at the same time, notes Berman. And even though part of the point of a visiting assistant professorship is to develop written materials expressing the person's advanced legal scholarship, the one-year positions put candidates out on the market before they have had a chance to do any writing. So they do not benefit the candidate's pursuit of scholarly publication.
Aside from temporary positions in teaching legal writing, Texas' ESP may be the only two-year temporary professorship out there right now, says Berman. The program has started off with one fellow, who is now in his second semester. The ESP will start with hiring two fellows per year and possibly expand as the program continues. A 10-member committee reviews applications, including a candidate's work so far, and references. Texas recently made offers to two more fellows to start in the fall. Both Texas alumni and graduates of other schools are encouraged to apply, says Berman.
Recent growth in visiting assistant professor and similar positions stems from a fundamental change in legal academia, says Berman. It is "well nigh impossible" to get a tenure-track teaching job at a law school without having published written scholarship, says Berman; but it did not used to be this way.
A generation ago, getting hired as a law professor was a matter of academic background and success adhering to a pretty basic formula. Attend a top law school (Harvard, Yale); have an excellent academic record, including law review; clerk for a judge for a year after receiving the law degree, preferably for the Supreme Court, but another appellate court would do; apply to teach; and get the job. Law teachers were hired based on "evidence of smarts," says Berman.
Now, standards for hiring law professors are more like those for hiring professors in other academic disciplines. Gradually, more and more academics in history, English, economics, and other areas of study started to get J.D.'s while they were pursuing their Ph.D.'s. These academics would go on the job market, and some would pursue law teaching jobs. With the writing and publishing clout behind them, these Ph.D.'s had a leg up on J.D.'s, who did not have the same kind of paper trail.
Seeking more information and academic work backing up their new professors, law schools started to look for scholarship when they vetted teaching candidates, says Berman. Traditional applicants—those just out of law school or coming out of years of law practice—found themselves at a disadvantage to those with publications to back them up.
Plus, at law schools, as opposed to other areas of study at colleges and universities, Berman says, tenure track leads to tenure in a more direct way. Tenure is more of a sure thing for law professors than for those teaching in other fields, who might get a tenure-track job, but find themselves denied tenure nonetheless. At a law school, says Berman, getting a tenure-track job is very close to just getting tenure itself, so job offers on that tenure track are becoming harder to get at the outset.
All this leads to the visiting assistant professor trend. The school gets a teacher to whom it does not have to offer any permanent guarantees up front, and the teacher gets paid to teach, but also to produce scholarship and pursue publication that could lead to a tenure-track job down the line.
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