Financial Oversight and Management Board for Puerto Rico v. Aurelius, very belatedly

This is the complete opposite of timely, it being older than my newborn child, but I realized I never got around to posting a link to my commentary on Financial Oversight and Management Board for Puerto Rico v. Aurelius, in which the Court upheld the constitutionality of the appointment of the officials in charge of overseeing Puerto Rico’s bankruptcy under PROMESA. My remarks are 10 minutes long and you can listen here.

As you’ll know if you’ve seen any of my previous blog posts on the case, I make three basic points.

First, there is the question of whether territorial officers are officers of the United States. I argue no, for reasons that I wrote about in this article (which Justice Thomas was kind enough to cite in his concurring opinion).

Second, there is the question of whether the officers in question were indeed territorial officers. Everybody on the Court concluded yes, and that seems plausible to me, though I don’t have a firm view.

Third, there is the question of whether there are any other constitutional constraints on the appointment of territorial officers. Justice Sotomayor raised one such argument in her separate opinion, and I have raised a different argument, analogous to a Chadha problem, but neither one was briefed or decided by the Court.

Post-script: I’ve since come across some interesting commentary by Professors Josh Blackman and Seth Barrett Tillman, raising the possibility that the board members are instead “officers under the authority of the United States” and also noting the perhaps-unanticipated consequences the Court’s decision has for impeachment of territorial officers.

Blurbs

I read a recent Facebook conversation among law professors about the following question: what purpose do blurbs serve on academic books? Putting aside endorsements from people who are President/celebrity-level famous, do blurbs ever cause anybody to buy a book?

I was embarrassed to realize when reading the thread that I actually have bought quite a few books because of a blurb. (Indeed, I was extra embarrassed to realize that I bought one just last week because of the blurb, but now I’m too embarrassed to say which one.)

Some of these were in an early stage of my book-buying life, when I was still a student and would see that Professor So-and-So, who I looked up to, had said a book was great. I was naive enough to treat this the same as if Professor So-and-So had personally emailed me and said, “Hey Will, I recommend you buy this book.” I didn’t know that some people are profligate or insincere blurbers and in any event all blurbs need to be decoded.

A little older and wiser, I instead treated blurbs as a signal of modest importance. If there are a bunch of books on a topic and I don’t know much about the authors, I might be more likely to pick up the one with blurbs by people I’ve heard of. Regardless of the content, a blurb says, “this is the book on this subject that was important enough for me to blurb.”

Now I’d say I still look at blurbs, but more to get a gestalt of how the book is presenting itself. Are the blurbs all by academics? All by law professors? All by people on one side of the ideological spectrum? Do they use words like “groundbreaking” or “accessible” or something else? Etc. Probably this approach is still wrong and I’ll grow into something else.

In any event, this made me realize that even I, who have not been asked to blurb very many books, don’t really keep track of which ones I have blurbed or what I said about them. And if I cared enough to blurb the book, you would think that I should care enough to tell you about it. So I will try to use this post to collect a list of my blurbs, and then you could hold me accountable if the books are bad or I mislead you.

“A strong supplement that provides the legal and political context for the most significant Supreme Court cases. It provides important background for all constitutional law students." — Me, on Randy Barnett & Josh Blackman, An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know

“Originalism is one of the most important theories of constitutional interpretation, and yet it is often misunderstood. Ilan Wurman's explanation and defense of originalism is therefore important and timely. It is also sophisticated, accessible, and fun to read. This book should be given to every law student.” — Me, on Ilan Wurman, A Debt Against The Living: An Introduction to Originalism

"Judge Sutton, a leading federal judge who's spent his career championing federalism, is the perfect bearer of this important message: Not all constitutional law comes from the federal Constitution-we must remember state constitutions. This book should change the way constitutional law is taught and litigated." — Me, on Judge Jeffrey Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law

"Confident Pluralism is important both as a theoretical book and as a practical one. Inazu’s unusually thoughtful treatment builds on theories of pluralism to show how contemporary legal doctrine and civic engagement can and should put that pluralism into practice.” — Me, on John Inazu, A Confident Pluralism: Surviving and Thriving Through Deep Difference

If I blurbed your book and have forgotten, please remind me!

Do You Want to Be a Fulltime Legal Writing Professor?

Guest Post by Irene Ten Cate, University of Houston Law Center

Many thanks to Professors Will Baude and Adam Chilton for soliciting legal academia advice for those who are interested in becoming legal research and writing (LRW) professors.  The recent post by Professors Rachel Gurvich and Beth Wilensky is a tremendous resource, and I’m excited to add some thoughts and advice from the perspective of someone who went through the job search process relatively recently.  To begin, I will address some considerations that may help you decide whether teaching LRW is right for you.

The Good

Teaching.  There is nothing like teaching 1L students and working with them in small-group and individual settings is even better.  LRW faculty experience a lot of “light-bulb moments” that are almost as exhilarating for the teacher as for the student.  Also, with multiple assessments in each semester, we get a close-up view as our students transform into early versions of the lawyers they will become.  When grading their final briefs at the end of the spring semester—a task that admittedly can get tedious—there is always a point at which I look up and marvel at how far my 1L students have come since turning in their case briefs during their first week of law school.

One thing that matters greatly to me is that LRW professors help make the playing field more level.  Every law school final is also a test of students’ writing skills.  LRW demystifies what makes for a well-written exam answer and provides ungraded and low-stakes opportunities to make mistakes and learn from them.  While we cannot fully compensate for vast differences in pre-law education, access to financial resources, and connections, students who start out at a comparative disadvantage often make big leaps in LRW that also pay off in other courses.

Another rewarding aspect of teaching LRW is that we get to know our students as persons.  During conferences and office hours, students tell us about their professional dreams and share news about exciting developments, like landing a summer position or advancing in the moot court competition.  But they also open up about disappointing grades, self-doubt, and setbacks in their personal lives.  While there are limits to what LRW professors can do, and boundaries to respect, we can often provide perspective or connect students with resources. 

Professors Gurvich and Wilensky summed it up perfectly: “[I]f your heart is in teaching legal analysis, writing, and research—as ours are—the rewards are immense.”  It is a great joy to be actively involved in a crucial stretch of my students’ journey.

The Subject.  LRW—and the closely related subjects of legal analysis and reasoning—provides an endless supply of issues that go to the core of what law is and how it operates.  As someone with a longstanding interest in philosophy, I have enjoyed brushing up on formal logic and thinking about its relationship to the organizational structures we teach in predictive and persuasive writing (if this sounds interesting, I highly recommend Professor Kristen Tiscione’s article on classical rhetoric and legal reasoning).  But LRW is also a great subject if you want to explore, for example, pedagogy, technical aspects of writing, rhetoric, or law as a social practice.

Your Colleagues.  LRW professors are among the most innovative teachers in the legal academy, and I have never encountered a more generous group of colleagues.  This combination has often energized my teaching.  At times, it has been a lifeline.  From a conference on how to achieve excellence in online teaching to the Legal Writing Institute’s teaching bank to conversations with my immediate colleagues in the hallways, I credit the LRW community with making me a much better teacher.

They’re also a fun and interesting group of people.  Some of the sharpest, funniest handles on Legal Twitter are LRW professors.  LRW professors hail from a wide variety of practice backgrounds, from Big Law to small law to public interest to denaturalizing Nazis.  Several LRW professors have published novels, and one publishes crime mysteries under a pseudonym she refuses to disclose to me.  I’ve encountered a former actor and a serious yogi who maintains a yoga law practice on the side.  One of my colleagues is a self-proclaimed insect nerd who is active in wildscaping and fills her office walls with blown-up pictures of butterflies and the occasional close-up of freaky bug eyes.  Despite being an introvert, I always look forward to legal writing conferences.

Lastly—and I cannot stress this enough—LRW professors produce exciting scholarship.  Every reader of this blog should read Professor Brian Larson’s theory of reasoning by analogy, Professor Teri McMurtry-Chubb’s thought-provoking analysis of how a John Grisham novel provides a roadmap for racial reconciliation (and everything else she has written), and Professor Danielle Tully’s article, hot off the press, about teaching culturally responsive lawyering.  And these are just a few examples out of many.  The Legal Writing Institute and the Association for Legal Writing Directors organize and sponsor several scholarship-related initiatives, including works-in-progress workshops and writing retreats.  I was surprised and very happy to find that the LRW community houses a scholarly culture that is robust as well as supportive. 

Freedom.  This word encapsulates one of the main reasons why so many of us decide to pursue academia.  While teaching LRW is time-intensive, it provides a lot of freedom in terms of what to teach, how to teach, and what to think and write about.  And of course, there are no time entries due at the end of each day.

The Bad

Compensation.  LRW professors typically receive substantially lower salaries than their doctrinal peers.  There has been much progress, and the adjunct stipends that used to be commonplace for LRW faculty have widely been replaced with living wages.  But in many if not most schools, several years into your teaching career your salary will still be lower than that of an entry-level doctrinal professor.

Status.  While entry-level doctrinal jobs are tenure-track, this is not yet the norm for LRW positions.  In fact, the American Bar Association merely requires that law schools provide “legal writing teachers” with job security, rights, and privileges “as necessary” to secure qualified faculty and protect academic freedom.  This situation is also improving, however.  As of last year, more than 40 schools offered a path to tenure for LRW faculty, and in many other schools LRW faculty are eligible for multi-year presumptively renewable contracts.  The wide divergence in job security, protection of academic freedom, and participation in governance is something you will want to pay attention to when you are on the market.  It also explains to a large extent why the US News legal writing rankings (and schools’ ability to attract and retain star LRW professors) do not at all line up with the overall law school rankings.

Workload.  The amount of course preparation work does not decrease substantially once you have taught LRW two or three times.  You will continue to spend massive amounts of time holding student conferences, providing detailed written feedback, and researching and drafting graded and ungraded assignments.  Many schools have reduced the number of students in each LRW section, but that reduction reasonably comes with an expectation of increased individual attention.  In sum, while the hands-on nature of teaching LRW is rewarding, it makes it hard to carve out time for scholarship.  Also, few LRW professors are eligible for sabbaticals.

The Ugly

Despite recent improvements, the differences in status are sometimes reflected in second-class citizen treatment.  A few schools still do not accord LRW faculty the title of professor, instead listing them as “instructors” or “lecturers.”  LRW professors’ offices often are significantly smaller or otherwise less desirable compared to those of doctrinal faculty, even though we share that space with students for hours on end (and yes, students pick up on that status signifier).  LRW professors are often organized in a director-led department, reflecting and projecting the image of LRW faculty as a monolith.  And let’s not skirt around it, some doctrinal professors—including persons who are otherwise deeply committed to egalitarian values—look down on their LRW colleagues.  This can take the form of blunt dismissiveness, indifference, or the unthinking but revealing remarks Professor Nantiya Ruan analyzes in her excellent recent article on status hierarchy and microaggressions in law schools.

Here too, my sense is that we’re on an upward trajectory.  Although it’s too early for complacency, we have come a long way from the “pink ghetto” that was decried in articles published two or three decades ago.  Indeed, our vastly improved station provides cause to reflect on our duty to support other non-doctrinal faculty, especially law librarians and colleagues who focus on academic success and bar preparedness.  I should also add that personal experiences vary dramatically.  In many schools, LRW faculty participate fully in faculty governance and in intellectual pursuits like workshops and works-in-progress sessions.  But if you are sensitive to pecking order issues, unfortunately you will find no shortage of occasions to take offense.

Before moving on, I want to acknowledge the pioneers in our field who have fought so hard for the substantial improvements that have occurred.  They did so without enjoying the protection of tenure, all the while establishing LRW as an academic discipline.  I also want to mention the continuing advocacy of the Legal Writing Institute (including its Professional Status Committee) and the Association of Legal Writing Directors.  All of us LRW professors are tremendously indebted to these individuals and organizations.

What Are Your Alternatives?

Many of the downsides of teaching LRW stem from a direct comparison with tenure-track doctrinal positions at the same institution.  But that may not be the appropriate yardstick.  Instead, your choice may be between LRW and doctrinal positions in schools that are in different geographical locations, or differently ranked, or differently situated in terms of financial stability.  Perhaps LRW is your primary research and teaching interest and you would pick it over a doctrinal position even at the same school.  Or maybe a tenure-track doctrinal position is not in the cards for you for any number of reasons.  I gained a lot of clarity when I accepted that a doctrinal position was off the table and instead considered career paths that were realistic options, mostly in private practice or city or state government.  Teaching LRW always came out on top.  And while the past two years haven’t been without challenges, I’ve become more and more convinced that applying to LRW teaching positions all over the country was the right decision.  Being a legal writing professor is, quite simply, one of the best jobs in the world.

The Footnotes to My Positivist Originalism Op-Ed

I wrote an op-ed for the New York Times discussing how originalism is doing at the Supreme Court these days and whether we should stick to it. It went online on Thursday and should be in the print edition today. Here is the opening:

For decades, originalists — many of them conservatives — have argued that courts should interpret the Constitution and other law in keeping with its original meaning. And their views have gained power. Both of President Trump’s appointments to the Supreme Court — Neil Gorsuch and Brett Kavanaugh — have described themselves as originalists, leading many to hope or fear that they would form a conservative majority with Chief Justice John Roberts, Justice Clarence Thomas and Justice Samuel Alito.

But that same court has just issued a mixed buffet of decisions — with conservatives splitting on cases concerning gay rights, immigration, executive power, Native American tribes — leading many to accuse the justices of political maneuvering or faulty reasoning. Some have also questioned whether originalism, or a related theory called textualism, is outdated.

After the Bostock v. Clayton County decision, which held that discrimination on the basis of sexual orientation is forbidden by the 1964 Civil Rights Act — Senator Josh Hawley, Republican of Missouri, said, “if textualism and originalism give you this decision, if you can invoke textualism and originalism in order to reach such a decision — an outcome that fundamentally changes the scope and meaning and application of statutory law — then textualism and originalism and all of those phrases don’t mean much at all.”

And some conservatives have turned against originalism altogether. Adrian Vermeule of Harvard Law School, to take one especially notable example, has called for conservatives to abandon originalism in favor of a “common good constitutionalism,” where judges and other officials would forthrightly import moral principles into the Constitution.

But today, originalism is the closest thing we have to a publicly shared set of legal principles. And it is not time to abandon it.

And from the end:

Still, as originalism becomes more popular and sometimes delivers liberal outcomes, originalists may fracture among themselves. Some conservatives may turn against it altogether, following the lead of Professor Vermeule. It is reasonable for some conservatives to be tempted by this position. If what matters most to you are the results in specific cases, you may want non-originalist justices.

But one danger of results-oriented judging is that other people, including future conservative judges, may not share your moral convictions. Even politicizing the courts may not produce moral consensus. Originalism is a method of evaluation, not a party platform.

Originalism has had widespread support for a reason. It has the potential to transcend our moral disagreements. And that may be what we need most in the long run.

Of course, this is a newspaper column, and covered a lot of ground, so there are a lot of details that I didn’t get into, some of which have surfaced in various critical emails and tweets. So for those who wish to engage further with the argument:

My basic case for originalism as our “publicly shared set of legal principles” is in my article Originalism Our Law?, as well as the follow-up Grounding Originalism, written with Steve Sachs. This argument also owes a great debt to Steve’s Originalism as a Theory of Legal Change. Taken together, these pieces argue for “original law” originalism — viz., that our law is the founders’ law, as lawfully changed.

The argument that we have defined originalism so capaciously that it lacks any meaning or “bite,” is refuted (I hope) in our quick six page article, Originalism’s Bite.

The argument that originalism is bad history, and/or should be done by historians rather than lawyers, is answered in our Originalism and the Law of the Past.

Finally, my thoughts so far on precedent, which I discuss in the piece as well, are in Constitutional Liquidation and Precedent and Discretion.

How to Become a Legal Writing Professor

Guest Post by Rachel Gurvich, UNC School of Law, and Beth Wilensky, University of Michigan Law School.

A few weeks ago, this blog published a series of posts framed as advice for folks hoping to become law professors. Will and Adam described what aspiring law professors should do during and after law school and offered specific advice about how to develop scholarly ideas.   

But this advice was directed only to a particular kind of law professor, as Will acknowledged in a follow-up post. Will’s colleague at Chicago, Professor Claudia Flores, has since written a post with advice for students interested in eventually obtaining a teaching position in a law school clinic.

We now offer advice for students hoping to teach legal research and writing (LRW). While our advice includes some tips for what to do during law school, the good news is that even if you don’t decide until after law school that you’re interested in making the transition, that won’t be a barrier to entry. And conversely, our during-law-school advice will help you have a great law school experience even if you later decide you don’t want to pursue this path.

Before we get to the advice, however, we should be transparent about what law schools look for when hiring LRW faculty. Both of us have served on hiring committees tasked with such searches, so we’re well positioned to provide some insight. And if you’re interested in reading more about the hiring process itself, we’d refer you to this article by UNC Professor Peter Nemerovski, an empirical study about the qualities law schools are looking for and who they hire, and this essay by BU Professor Cody Jacobs, which describes his recent experience on the market and offers specific advice about how to navigate the hiring process.

Much of the advice that Will and Adam originally offered boils down to convincing law school hiring committees that you will be a great scholar. But when law schools seek to add a new full-time LRW professor, the two most important considerations are (1) practice experience and (2) potential for excellence in teaching. Accordingly, much of our advice will help put you on a path towards making the most of your time in law practice and finding opportunities to become familiar with—and practice—good pedagogy. Here are some suggestions for what you can do both during and after law school.

While in Law School

First, if you’re not at a “T14” law school, don’t panic, and definitely don’t give up before you’ve even begun. Yes, it’s true that, because the legal academy tends to be elitist, having certain names on your diploma can make your path easier, especially if you’re pursuing a job as the kind of professor that Professors Baude and Chilton had in mind. But there is a path to any academic job from schools outside the “T14,” and for LRW positions, it is much less of an uphill climb.  

Relatedly, don’t panic if your grades aren’t what you imagine they should be. Just as grades do not determine whether you will be a good lawyer, they also do not determine whether you will be a good experiential law professor. And professors like the ones writing this post will be willing to mentor and support your academic aspirations regardless of your grades.

Many students who go on to be experiential faculty do an outstanding job in LRW even though their grades in non-experiential classes aren’t as strong. And even students who struggle in LRW can end up being terrific professors. In fact, students who struggle initially, but put in a lot of effort (not just as a 1L, but in law school and practice generally) and who, as a result, develop into outstanding writers are often the people who make the best LRW professors. They can credibly tell students that effort in legal writing pays off, and they often have the best sense of how to help students for whom legal analysis and writing doesn’t come naturally.

To the extent you want to start thinking about setting yourself up for an LRW position while you’re in law school, there some things you might want to do.

First, hone your own skills. These are the skills you will use in practice and the skills you will ultimately teach. Look for summer positions where you’ll have the opportunity to do research, writing, and advocacy, but remember that the transferrable skills you learn in these positions are actually more important than the area of law in which you practice them. Take upper-level writing classes where you write practical legal documents and receive regular feedback on your work. Consider moot court if you’re interested in appellate practice and oral advocacy. Take a clinic where you get to research and write. (We tend to think all law students should take a clinic, regardless of their career aspirations, but that’s a different blog post.) And dive into campus organizations and pro bono opportunities that will let you continue to hone your research, writing, and oral communication skills.

Second, pay attention to the pedagogy of good LRW professors. Effective teaching should be every law professor’s primary objective. Though teaching potential is often given short shrift in hiring on the non-experiential side, it’s an essential consideration in LRW hiring. The good news is that teaching, like nearly any skill, is something that anyone can learn to do well with the right resources, sustained effort, reflection, and a bit of humility.

Experiential pedagogy is based on the core assumptions that (1) legal analysis, legal writing, client representation, and effective advocacy are all skills that can be taught; and (2) the way in which these are taught matters. LRW professors use flipped classrooms, the workshop model, and frequent formative assessments. They are trained to tailor their instruction to the needs of individual learners, teach skills as well as concepts, deliver content and personalized feedback in ways that are thorough and accessible, and cultivate a rigorous but supportive learning environment. LRW professors teach in an intentional, labor-intensive way, with predictable methods that draw from cognitive science and a rich literature of pedagogy and best practices. If you learn these methods, you will be a better teacher.

But these methods aren’t used in all law school classes. And even when they are, sometimes they aren’t transparent to students. As a result, one of the most challenging things for lawyers to do when they try to transition from practice to an LRW faculty position is to wrap their heads around teaching, and all of the ways that teaching is different than supervising junior attorneys while practicing law. So while you are a student, watch what your most effective professors do. Reflect on how you learn best and what your professors have done to foster that learning. Pay attention to specific methods they use and think about why they do (or don’t) enhance your understanding or retention of the material. 

If your school has a program in which upper-level students work with students in 1L LRW classes, that’s a great way to get a window into LRW pedagogy, and you should apply. The title and responsibilities of such teaching fellows will vary from school to school, but regardless, you will almost certainly have a good experience working with 1Ls as they learn legal analysis, research, writing, and citation, and you will enjoy the opportunity to do the next thing on our list. 

Third, get to know your professors, especially LRW faculty. Ask for and listen to their stories about how they ended up in their current positions. (Spoiler alert: these stories will vary widely.) Honestly, it’s hard to think of a career for which getting to know at least some of your professors isn’t valuable. That doesn’t mean you need to get to know all of them, but pick a few who (1) can speak highly of you and your work and (2) who do something you find interesting and want to learn more about. And it’s fine if those are different people.

Fourth, look to expand your network beyond just your law school. One way to do this is by participating in certain national student organizations. But another, sometimes easier, way to do it is by finding an online community—Twitter in particular. (Check out the hashtags #LRWProf and #LRWProfs to find discussions among and relevant to LRW faculty.) Follow and engage with LRW professors, legal writing experts, and practicing attorneys who care deeply about legal writing. If you listen carefully to and then gradually join the conversation, you will have a meaningful network you can tap as a resource, a richer substantive knowledge of legal writing best practices, and a better understanding of the role you’re trying to step into. (This is something you should keep up when you go into practice.)   

Finally, consider pursuing a clerkship, a process that may—or may not!—start during law school. A clerkship is not essential for securing an LRW position, but many LRW professors have clerked. A clerkship is a great way to pack a lot of intense research and writing practice into a short period of time, often with an excellent supervisor. And it will help you explain to students how courts work while giving you a close-up look at effective (and ineffective) oral and written advocacy. It doesn’t matter whether the clerkship is district or appellate, state or federal; all are excellent opportunities for this purpose and more generally.

After Law School

 You’ve graduated and passed the bar. Congratulations! Now what? Practice law! Significant practice experience is the most important qualification you can bring to an LRW teaching position—ideally at least 5 years of practice, though some schools will consider candidates with less. Many kinds of practice experience can make you attractive to hiring committees: private practice (big or small law), government, public interest, criminal, and more. Because the 1L LRW course at most schools skews towards litigation, most LRW professors have practice experience in some sort of litigation. But many schools offer upper-level courses in transactional drafting, so if you are able to gain experience in litigation and transactional work, you might be a particularly attractive candidate on the teaching market.

 How should you use your time in practice to position yourself for a transition to academia? Here are a few steps you can take:

 First, learn what distinguishes effective from ineffective supervisors, and learn how to be an effective one. Develop the ability to give meaningful feedback. As a junior attorney, reflect regularly on what you find helpful when you receive feedback. If your organization hires law student interns, volunteer to supervise them or invite them to work with you. And when you have the opportunity to supervise other attorneys or student interns, take it upon yourself to not just correct their work, but to help them develop into outstanding writers and attorneys.

Next, reach out to local law schools to volunteer your time—as a moot court judge, mock trial coach, mock interviewer, guest speaker in an LRW class, panelist at a career information session, alumni advisor, etc. Try to get to know the professors who teach in these schools’ LRW programs (and the directors of such programs, if they have directors), and express your interest in teaching LRW. That way, you’ll be on their radar when opportunities arise.   

If those nearby law schools offer opportunities to teach as an adjunct, seek them out. Ideally, you’d want to teach an LRW class, but most law schools have moved away from adjunct programs in favor of hiring full-time faculty to teach legal writing. But even schools that have full-time faculty teaching LRW occasionally need a visitor to fill in for a year, which is another good reason to develop relationships with the faculty at nearby law schools. To the extent they exist, adjunct and visiting programs can offer good opportunities to get your feet wet and confirm that you really enjoy teaching. Working as an adjunct also lets you put pedagogy into practice and demonstrates your commitment to teaching. If you aren’t able to teach a legal writing class as an adjunct, seek out opportunities to teach other classes in your area of expertise on an adjunct basis.

If you do get an adjunct or visiting position, make sure you speak with experienced LRW faculty before you start teaching. By the time you have enough practice experience under your belt to be an effective adjunct, you’re often far removed from the law school—and especially the 1L—experience. Professor Sherri Lee Keene of Georgetown wrote a helpful article geared towards practicing attorneys transitioning to teaching 1L LRW; we recommend it.

Immerse yourself in scholarship. LRW faculty have developed a robust pedagogy around what we do in and out of the classroom. Spend time reading scholarship both about what makes for outstanding legal analysis, writing, and research and also about how to teach law students to develop their skills in those areas. Here are some good sources to spend time with:

•  Start with the Monograph Series produced by the Legal Writing Institute. It’s a curated selection of the best articles on a variety of topics: https://www.lwionline.org/publications/monograph-series

• Then, if you want to follow current trends in LRW scholarship, browse these journals:

  • Legal Communication and Rhetoric: JALWD: https://www.alwd.org/aboutlcr

  • Journal of the Legal Writing Institute: http://www.legalwritingjournal.org/

  • The Scribes Journal of Legal Writing: https://www.scribes.org/the-journal-of-legal-writing

• For collections of shorter pieces—particularly for quick teaching ideas and other topics of essay length, we like these:

  • Perspectives: Teaching Legal Research and Writing: https://info.legalsolutions.thomsonreuters.com/signup/newsletters/perspectives/

  • The Second Draft: https://www.lwionline.org/publications/second-draft

If you’re feeling ambitious, and your circumstances permit, you might write something for publication yourself. Very few programs expect LRW candidates to have already published in the field, but some require LRW faculty to produce scholarship to be eligible for retention or promotion. Some law schools support LRW scholarship but don’t require it. Other places do neither. Certainly, if you can write and publish some things that would appeal to an LRW program, that can make you a more attractive candidate. It shows a genuine interest in what we do and initiative in thinking about how we do it.

A few law schools offer fellowship or formal visitor programs to help practitioners transition to the teaching market. These temporary (usually 1-3 year) positions are well established at many law schools for non-experiential and clinical hiring, but are relatively rare in the LRW field. And they usually require the ability to pick up and move for the fellowship, which is often low-paying, before moving again to a permanent position once the fellowship ends. Still, if you can get one, they are a great way to gain a foothold in the market for LRW faculty. Schools that have recently posted LRW fellowship or formal visitor positions include the University of Denver Sturm College of Law, Indiana University’s Robert H. McKinney School of Law, and Elon University School of Law.[1]

Finally, we would be remiss if we didn’t acknowledge that, at most schools, legal writing faculty enjoy lower status and fewer benefits than non-experiential faculty (in terms of things like job security, salary, research money, participation in faculty governance, eligibility for sabbaticals, etc.). But if your heart is in teaching legal analysis, writing, and research—as ours are—the rewards are immense. And as LRW professors who are eager to welcome new faculty to the field, we are happy to help you get started. Email us!

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[1] Don’t be confused by the multitude of opportunities that show up if you Google things like “legal writing fellowship.” Aside from schools that call their 2L and 3L teaching assistants “legal writing fellows,” your search results will mostly include programs like the Climenko fellowship at Harvard and the Bigelow fellowship at the University of Chicago, where fellows engage in scholarship to prepare for the ­non­-experiential teaching market while also teaching legal writing on the side.

How to Become a Clinical Law Professor

Guest Post by Claudia Flores, Director of the International Human Rights Clinic at the University of Chicago Law School.

Clinical law professor is a relatively new position in legal academia. Though clinics have existed in law schools since the 1950s (UChicago’s clinic was established in 1957), clinical legal education really became a component of law school curriculums in the ‘90s. Since then, clinical programs have dramatically expanded from 314 clinics at 119 law schools in 1990, to 1,433 clinics at 187 law schools in 2016-17. Today, the majority of U.S. law schools have clinical programs, with an average of seven clinics in each program.  In 2014, the ABA made experiential education a requirement for all accredited law schools which has institutionalized clinical legal education.

 The “first wave” of clinical faculty were primarily public interest lawyers approached by law schools to establish clinics in their field. Today, clinical faculty are hired and recruited much the same way as “podium” law faculty (for lack of a better distinguishing term) through job and recruitment fairs and national postings.  

 So how do you become a clinical law professor, or at least position yourself for that possibility? This advice is geared towards public interest oriented clinics, which continue to be the majority of clinics in law schools. The short answer is become an experienced lawyer with some recognition and success in your field and a demonstrated talent and interest in teaching. Below is the longer answer, which I’ve broken down into a set of decisions to consider as you advance through law school and your legal career.  

 What to do during law school: 

• Take a clinic in law school (hopefully, this is obvious). There are many reasons to take clinics: improve your lawyering skills in an educational setting; gain exposure to a particular area of law; strengthen your writing and/or oral advocacy skills through the feedback and revision process; learn to be a professional; benefit from faculty mentorship; and have the opportunity to work on cutting edge and, often inspiring, legal work. All that aside, if you think you might want to teach in a clinic someday, you should definitely take one or more clinics. Clinical education employs the experiential learning model – the idea that important learning happens through acquisition of knowledge, application through practice and reflection on that practice. To know what this means and what it does for students, you simply need to take a clinic.  

• Do a public interest internship at least one of your summers in law school.  Many of the top law schools, including ours, provide funding for students who want to work at a public interest organization over the summer. This is an incredibly easy and accessible way to supplement your clinical experience.  Just as important, you will be much better situated to find a sponsoring organization for a post-graduate public interest fellowship (see below). Some students manage to split their summers between a public interest organization and a firm.

• Develop relationships with faculty in your field and areas of interest.  Make the most of the opportunity to develop any and all faculty relationships through clinics, research assistantships and other law school activities. Find mentors who have followed career paths that appeal to you.

• Be active in student organizations working on issues that matter to you: This is important to developing and maintaining your network and demonstrating a commitment and focus to the impact of law on the public interest. Hiring committees for clinical faculty will look for this consistency and depth of experience, even during your time in law school. 

• Develop a student community.  You will work with, hire, be hired by, and refer clients to your law school peers for the rest of your professional life.  Trust me.

 What to do after law school:

• Clerk if you can: A clerkship is not a requirement for a clinical faculty position but it definitely helps, especially if you wish to end up in a litigation-based clinic.   

• Become a good lawyer and gain experience that makes you an even better lawyer. Law schools will look for flagship work and/or a successful practice of some kind. Clinical law professors are hired as experts in areas of practice. No law school is going to hire a director for a public defender clinic if that person hasn’t actually been a public defender.  That said, you may also consider diversifying your skills and areas of expertise to widen the scope of your marketability. There is legal work that takes place at the intersection of clinics commonly found in most law school clinical programs. For example, if you’ve worked representing immigrant farm workers in Fair Labor Standards Act cases, you may be a good fit for an immigration or an employment law clinic.    

• Limit your time in the private sector, unless your private sector employment is relevant to your field of interest for clinical teaching. The reality is that clinical teaching jobs are highly competitive and spending too much time in an unrelated private sector position will weaken your candidacy. Certainly, some private sector lawyers make names for themselves by taking on relevant probono work and so find the transition an easier one. For everyone else, remember you will be in competition with many lawyers who will have spent their careers in the relevant public interest field. If you do spend time in the private sector, remain active in professional organizations and take on related probono cases. 

•  Write in your field. Writing requirements vary by law school and how and whether clinical faculty are tenured under unified or parallel tenure systems. However, most clinical faculty at top law schools publish in their field. If you have written in your field, whether it is for a public, practitioner or academic audience, you will be a more attractive candidate. 

•  Consider applying for post-graduate public interest fellowships: Fellowships like the Skadden Fellowship, the Soros Justice Fellowship or the Equal Justice Works Fellowships, among others, have name recognition and connect you to a community of fellows that will be very helpful in your career generally. These fellows also tend to be highly represented in clinical faculty. Moreover, these fellowships also provide an entry way into a first public interest job, a position that can be difficult to land.  As an alternative, many law schools have their own fellowships for graduates. These are also worth considering.

•  Consider a clinical teaching fellowship. Many top law schools offer clinical teaching fellowships aimed at early career lawyers interested in clinical teaching. UChicago Law has one in the clinic I direct - the International Human Rights Clinic. American University, Georgetown, Harvard, Berkeley, Columbia and NYU also all have clinical teaching fellowships.  Generally, these fellowships require some experience (2-5 years), impressive academic qualifications and a demonstrated interest in teaching in a clinic. Fellows work closely with students, provide support to the director and often supplement student research and writing. Some law schools prefer hiring directly from these fellowships because of the training fellows receive in clinical teaching. Others prefer to hire practitioners from the field. Generally, my opinion is that it is preferable to spend time practicing outside of the academy before transitioning into a clinical faculty position but reasonable minds differ.

•  Stay connected to your clinic and collaborate with clinics. Clinics source cases and projects in different ways but many co-counsel and collaborate with former alumni. Bringing interesting cases to your alma matter clinic or other clinics supports clinical programs and will provide you the opportunity to work with students in that context. 

•  Try to acquire some teaching experience. Hiring committees will often prefer that you are not learning to teach on the job. A great lawyer is not necessarily a great clinical professor. Teach a course in a local law school or CLEs. Not only will you improve your teaching skills but you will be a more attractive candidate.

•  Don’t pursue the career if you want to be “podium” faculty or as a way of moving in that direction. There is certainly some overlap in clinical faculty and “podium” faculty positions, and some crossover between the two faculty populations, but they are not the same jobs. The approach to legal education is complementary but distinct. Moreover, a clinician is a practicing lawyer, a not-insignificant component of the position.  

•  Do pursue the career because you enjoy and are committed to your area of legal practice, would like to contribute to its evolution in an academic setting, and want to train the next generation of lawyers.   

International Law and Support for Women's Rights

A paper I’ve been working on for six years—United Nations Endorsement and Support for Human Rights: An Experiment on Women's Rights in Pakistan—was just published (here’s the un-gated version). Given the huge amount of time that went into getting this work published, I thought I’d write a little about what it’s all about. I hope you’ll indulge me.  

International human rights law is a core area of international law. The most prominent part of this body of law is the major international human rights treaties. But in addition to these treaties, the United Nations also has several different organizations that are supposed to push countries to improve their human rights practices. However, despite the considerable effort that has been spent developing these treaties and organizations, there is still constant debate in international relations and international law circles is whether the international human rights system leads countries to change their policies.

 This is because it’s not clear exactly how commitments to international human rights law could actually translate into countries changing their policies. Why is it unclear? Because countries are unlikely to be punished for failing to change their behavior. It’s not like an army of UN soldiers in blue helmets is going to invade countries that don’t live up to their commitments to respect the freedom of speech, and other countries typically aren’t interested in expending much energy in sanctioning foreign governments for human rights abuses.

 But even though external sanctions are unlikely to drive compliance with human rights law, there are other theories about how the existence of this international regime could still lead to better respect for rights. Perhaps the most prominent theory for how this could happen is through so-called “domestic compliance mechanisms.” The idea here is that countries make commitments to international human rights, but then when a given country doesn’t live up to those commitments, various organizations within the country can point to the non-compliance as a way to make the government change its actions.

 For example, civil society groups might be able to get their government to treat women better by publicly arguing that a given policy is unfair to women; but they might have even more luck if they can also say “and our government has signed a treaty that obligated them under international law to change this policy, and they are violating that treaty.” In other words, the existence of the international commitment provides a powerful argument that can be used by groups interested in improving human rights.

For a variety of reasons, this theory is hard to test empirically. For example, human rights improve gradually over time, those improvements are hard to measure, there isn’t great data on civil society groups efforts, and there isn’t a lot of random variation in those obligations. When I was a law student, I published a paper arguing that one way it might be possible to make at least some progress testing the effectiveness of human rights law is by using experiments. Experiments have their own problems, but, among other things, they solve the problem of lack of random variation in the human rights regime.

In 2014, I made this argument while teaching a short course on international law in Germany at the Max Planck Institute of Economics. A PhD student in psychology from Pakistan named Gulnaz Anjum was in the room. Gulnaz was passionate about finding strategies that could help improve women’s rights in Pakistan, and she wanted to see if the “domestic compliance mechanisms” might help make a difference. We immediately started talking about how we could try to test this.

Gulnaz recruited a Pakistani economist she knew named Zahid Usman, and we set out designing an experiment to conduct in Pakistan on whether hearing about international obligations made more supportive of women’s rights. But there were a lot of obstacles to getting this done. For instance, women’s rights activists in Pakistan were being targeted and killed at the exact time that we were hoping to do our project. So we had to find safe places to have conversations with people about their attitudes towards women without putting our team at risk. There were plenty of other hiccups along the way too (e.g. IRB approvals, getting the funding to Pakistan, etc.). But ultimately, we were able to conduct ~600 interviews with people on their views on women’s rights while experimentally testing this theory (Gulnaz gets all the credit for that part of the project).

The experiment basically asked people if they supported various policies that the UN had identified as steps Pakistan should take to improve women’s’ rights. For example, one of the policies we tested is raising the age at which girls are allowed to get married to 18. The experimental manipulation was telling some people that the source of the policy proposals was from a United Nations report. That simple fact, telling people that the policy proposal came from a report on Pakistan’s international obligations, had a huge impact on support for the policy. On a scale of 1 to 5 (from strongly opposing a policy to strongly supporting it), this intervention increased support by about 0.5 points. Moreover, people that were told about the UN’s position on a given policy were also dramatically more likely to say they were willing to take various steps to help support women’s rights in the future.

It’s been a long road to getting this experiment run and published (Gulnaz went from being a grad student to a professor in Karachi during the time we’ve been working on it). And, of course,  of course, there are a lot of limitations with our experiment and plenty qualifications that should be made about what conclusions can be drawn for our results (but you’ll have to read the actual paper to hear those). And Pakistan is at the bottom of most rankings of women’s’ rights, so there is a lot of work to be done. But hopefully this research helps make some progress understanding the ways that international law can be effect way to advance human rights advocacy.

Immigration and Country-Specific Investments

Adam Cox and Eric Posner have a great theory about when countries are likely to offer potential immigrants more security in their status. It has a lot of moving parts, but here’s the basic idea.

There are some circumstances where people have an easy time moving between countries. For instance, if you were a French citizen working in a cafe in Paris, you might be able to easily move to Brussels and start working in a cafe there. There is freedom of movement within the EU, there probably aren’t too many hurdles to getting hired as a barista, and you’d be fine getting by speaking French (at least if you stay in the capital).

But this kind of easy move is the exception, not the rule, when it comes to international migration. If you were instead an Indian lawyer living in Mumbai, for example, it might be extremely difficult for you to move to Brussels. You’d have to find a way to get a visa, getting licensed to practice law would likely be complicated, and, even though most Indian lawyers speak excellent english, language barriers may still make professional and social interactions difficult. (This last one might just be a me thing — I spent years taking French in high school and college, but I still struggled in professional meetings when I interned at the EU.)

Making that second, more common, kind of international move requires years of planning and considerable expense. If the move falls apart, those years of planning are wasted. You can’t just ask that your time planning a Brussels move be rolled over to a Sydney move, the way you might be able to with a hotel deposit. Or, as Adam and Eric put it, making that kind of move requires making a substantial “country-specific investment.”

Country-specific investments are the efforts that people expend migrating that are wasted if they lose the ability to migrate to, or remain within, a given country. And, like all investments, people don’t want to make risky country-specific investments when there are safer alternatives available. This is especially true of potential migrants that have many good options. If you have a promising career in front of you — as a doctor, scientist, lawyer, academic, computer programmer, musician, business executive, or really any other line of work — why waste years figuring out how to move to a country that’s fickle enough to erode the value of your investment?

I always liked this theory. I talk about it in my immigration law class to explain why we should never make the mistake of thinking that the potential host countries hold all the immigration cards (e.g. “there are a lot of people that want to live in the United States, so why can’t we jerk potential migrants around as much as we feel like?”). As the theory explains, even if your country is a great place to live, many people won’t want to spend years figuring out how to move to a place that will wipe out their investment.

Now, this is the kind of theory that’s tough to test empirically (I could give a bunch of boring reasons about endogeneity, cross-country comparisons, and measurement, but I’ll assume you’ll just trust me on this one). But when I agreed to write a symposium paper on the rights of non-citizens a few years ago, I asked Adam and Eric if they’d like to work with me to try to figure out a way to do it (Adam was over committed at the time, but Eric was characteristically down to start a new project). Eric and I collected data on proxies for country-specific investments and for the protections provided to migrants. We weren’t able to complete nail down all parts of empirical support for the theory, but what we could test was consistent with it: countries that require more country specific investments offer potential migrants more protections.[2]

Why am I bringing up this theory and obscure symposium paper today? Because last night President Trump issued a sweeping executive order that suspended the H-1B, H-2B, J, and L visas programs through at least the end of the year. The people affected by that order made the country-specific investments required to get those visas believing their investments were backed by the full faith and credit of the United States. But this order deeply eroded the value of those investments (and, for some people, totally wiped them out). This move is the immigration equivalent of a country defaulting on a bond. It only takes one reckless politician to decide not to pay their country’s debts because they think some other priority is more important, but a default always has ramifications far into the future as potential investors look for less risky options.

The order yesterday thus not only arbitrarily inflected needless pain on hundreds of thousands of families during a difficult time, it sent the signal to the world’s most talented potential migrants that the United States can’t be trusted to keep our immigration promises. Many Americans may forget about this stupid move in a few news cycles, but for years to come it will make anyone considering moving to the Untied States think twice before making the investment.

—————-

[1] Adam B. Cox & Eric A. Posner, The Second Order Structure of Immigration Law, 59 STAN. L. REV. 809 (2010).

[2] Adam S. Chilton & Eric A. Posner, Country-Specific Investments and the Rights of Non-Citizens, 57 VA. J. INT’L L. 575 (2018).

Fragile Ideas

I’ve written repeatedly about the importance of having ideas, why it’s ok for scholars to have lots of bad ideas, and the need to find ways to filter out your bad ideas before you spend time turning them in to bad papers. But there is an important flip side, which is that scholars — beginning and aspiring scholars especially — need the space to let them work on ideas without getting discouraged or prematurely judged as bad scholars. Indeed, I think this is one of the things most missing from our current law school - fellowship track in legal academia: a place to develop fragile ideas.

This is from a post about start-up culture, but I found it quite relevant to academia:

How do you [generate ideas]?

It’s important to be in the right kind of environment, and around the right kind of people. You want to be around people who have a good feel for the future, will entertain improbable plans, are optimistic, are smart in a creative way, and have a very high idea flux. These sorts of people tend to think without the constraints most people have, not have a lot of filters, and not care too much what other people think. 

The best ideas are fragile; most people don’t even start talking about them at all because they sound silly. Perhaps most of all, you want to be around people who don’t make you feel stupid for mentioning a bad idea, and who certainly never feel stupid for doing so themselves.

Stay away from people who are world-weary and belittle your ambitions. Unfortunately, this is most of the world. But they hold on to the past, and you want to live in the future.

Unfortunately, both our online and academic cultures are increasingly moving away from being spaces for the exploration of fragile ideas — ideas that might turn out to be good and important but also might turn out to be bad or dangerous.

We academics should be brainstorming ways to change that.

LRW/clinics; notes; reform

With the scant time before I turn into a pumpkin on Monday, I’m going to try to add a few final thoughts on this series of legal academia advice. But in the meantime I wanted to respond to a couple of points and queries that have come up.

1. Does this advice ignore legal writing and clinical professor positions? Yes. I don’t feel as qualified to give such advice, though I know and love great people who have these jobs. If you have advice for legal writing or clinical professors you’d like to share, email us.

2. Is it a good idea to read a bunch of student notes to get a sense of what beginning scholarship looks like? No, this is a bad idea. Student notes may or may not be worth writing, but they are a different genre and they can teach you bad habits. Many journals force students to recapitulate existing doctrine and scholarship and spend too little space on their own novel contribution. They often impose artificial constraints on the topic and arguments that are permitted. I’m sure there are exceptional journals and exceptional notes, but surveying notes as a field will teach you bad habits.

   If you want to get a sense of how specifically beginning research should look, focus on reading published articles fellows, law clerks, or untenured professors. You might also see if your school will let law students sit in on job talks, and also ask to see a copy of the job talk papers.

3. Doesn’t the system need to be reformed? Yes, in some respects, though I don’t think everybody will like our reform advice either! For now let me just reiterate that I find it useful to break down discussion of the hiring market into three different questions. What should aspiring professors do, given the world we live in? What should hiring committees and faculties do, given the world we live in? What should all of us participants do to change the world of legal academia?

   The answers to all three of these questions should be different. For instance, I said earlier that aspiring professors should try to go to a school that produces law professors. But in my view hiring committees should ignore this advice — if a candidate has direct evidence of their teaching and scholarly ability, the law school they went to is basically irrelevant.

Ideas

I’m glad we’ve finally made it to the part of our advice where we can talk about the importance of ideas! I wish we’d gotten here sooner. Lots of people didn’t like the previous round of advice, but luckily, as Adam says, once you are out of law school you can stop worrying about it. At this point, you really only have two things to do. Start writing interesting papers, and get a fellowship.

Once upon a time, those two clauses would have been written in the opposite order, because a fellowship gives you time to think and write, and it’s hard to those things while you’re practicing or doing other things to earn a living. In a better world, there would be more ways to incubate ideas for people who would be great academics one day but have never had the time and space to develop their ideas. But in our world, the fellowship market has become more and more competitive, so many fellowships will expect you to have done some writing, and certainly to have done some thinking, before you get the fellowship. This is hard, but increasingly it’s what you have to do.

1. Ideas.

Now it’s totally fine if many of the ideas you have at this stage are bad ideas. Most of my ideas today are still bad ideas! Ask people for help in sorting your good ideas from your bad ones — your former professors, academically-inclined peers, law professors you meet on the street, whatever is available to you. (These previous tips for junior scholars are still relevant at this stage.)

There is lots of advice about there about ideas you ought to focus on if you’re trying to get a job: Pick tax or corporate law, not constitutional law. Write about something topical, but not too trendy. Write something that has immediate policy relevance. Don’t write a paper about Chevron. In my view, all of this advice is overrated, though much of it may be true. You just need to focus on whatever your best idea is.

What makes a paper best? “Best” means a complicated function of (1) novel, (2) interesting, (3) correct, (4) persuasive, and (5) important. Different people disagree about the appropriate weights to place on those five things (and it is often hard to disentangle (1) from (2) and (3) from (4)). But you want to push as far on those frontiers as you can.

2. Getting a Fellowship.

Armed with these ideas, you should apply for a fellowship. These have been well-canvassed on other sites, such as Prawfsblawg. Apply for the ones you can. There are lots of ways to rank the different fellowships, but I think of them as divided into two categories: structured fellowships, like the Bigelow or the Climenko, which are supposed to have things like mentorship, institutional buy-in, a peer cohort, etc., and unstructured fellowships where you basically get a salary and a desk to be alone with your thoughts. Which one is best for you depends a lot on both your personality and the state of your work at this point.

Still the more important point, which some people are still going to hate, is this: If you can’t do a fellowship, and you don’t have a Ph.D., it will be very hard for you to become a law professor. This doesn’t mean you are a bad scholar or that you wouldn’t be a good law professor. Getting a fellowship requires you to demonstrate scholarly aptitude before you’ve been given resources to develop. It often requires you to move, for a salary that’s well below what practicing lawyers or law professors make. Not everybody can do that.

But again, as Adam notes, the law teaching market is very competitive. Even law schools you thought were obscure or are in undesirable locations often can pick between multiple candidates with multiple good publications in any particular area. If you don’t have a fellowship, it will be ultimately be hard to compete.

This is not just a point about credentialism, either. Fellowships give you the time to develop your ideas as well as an academic environment in which to test those ideas and discard the bad ones and refine the good ones. In theory, hiring committees know that somebody who hasn’t done a fellowship might turn out to be a great scholar and teacher. But they are already rejecting fellows with a track record of schoalrship and even teaching for these jobs. So it is very very hard to prove that you are the diamond in the rough.

3. Doing a Fellowship.

Doing a fellowship is more like being in a Ph.D. program than being in law school is. You may have some teaching duties, which you need to do well, but aside from that your main job is writing, and you should write like it’s your job.

Here is a passage about writing a Ph.D. dissertation from Brennan’s book:

If you struggle to finish your dissertation, you probably aren’t going to succeed as a professor. You should consider quitting, or finishing but pursuing a nonacademic career. There’s nothing wrong with that. This job isn’t for everyone, and that’s fine.

I realize that seems harsh. But consider: When you write your dissertation, you aren’t taking classes. You’ll either get to teach your own class. You’ll have almost zero responsibility other than writing your dissertation. That’s your full-time job. If you can’t hack that in a year, then how will you manage to be productive in research when— as an assistant professor—you also have to teach four to eight classes and perform service work, all without anyone mentoring your or holding your hand? In terms of responsibilities, grad school is the easiest time in your career. The years you spend writing your dissertation are the years with the fewest responsibilities. It doesn’t get better.

Now this advice doesn’t translate perfectly to legal academia. Some fellows have more substantial teaching responsibilities than that, and most assistant law professors don’t teach 4-8 classes a year. But the basic point still holds. You should have much bigger chunks of undistracted time to write as a fellow than you will ever have again, or at least for a long time.

At this point you should spend as much time working on your best ideas (see above) as you can. There may well be various forms of credentialism or other bias at work when you go on the job market, but there’s no point in worrying about it at this stage, because you can’t do very much about it. What you can do is present as much of the best work as you can to hiring committees. Once again, at this point you should act as if it’s all about your ideas — having them, writing them, presenting them, sharing them.

What To Do Between Graduating and Going on the Market

Will and I have already covered our tips on what to do if you’re a law school student. Now, what should you do between graduation and going on the entry level market?

The thing that gets most people hired as an entry level law professor is demonstrated ability to do good research. In the last post, I said that the most important way to spend your time in law school is taking five steps that will help you figure out what to research:

So how should you spend your time in law school if you want to be a law professor? Spend it figuring out yours answer to these five questions: (1) what subject do you want to (initially) research; (2) what methods will you use to research it; (3) who are the leading people currently researching that subject; (4) what has been said about the subject; and (5) what’s an important point that hasn’t been made about the subject.

Here’s the good news. It doesn’t matter if you did those things in law school. It’s easier if you get them done sooner, but it’s not too late to start, even if you start years after graduating. Additionally, the other good news is that you only have to add three to that list before you go on the market.

 (6) take the important point you figured out that hasn’t been made about your subject during step 5, and turn it into a published article; (7) repeat steps 5 and 6; and (8) make sure relevant people that research in your area know about your research.

 Anyone can do these steps, and if they do them well, people won’t bother to rely on the signals they had previously used as proxies for research potential.

But here’s the bad news. Even if you do these things, the entry level market is brutal. This year, less than 25% of people that went on the market actually landed an entry level job.[1] And most people don’t go on the market on a whim. Preparing for the market takes a lot of time, actually going on the market is expensive, and if you’re one of the 75% of people that go on the market and strike out, it can still set you back in your non-academic career pursuits. In other words, this is a market with a 25% success rate where the people that dip their toe into it don’t do it lightly. As Brennan put it in his book on succeeding in academia, “Your least qualified competitors will be impressive people with decent credentials.”

So, given how tough the market is, what should you do to prepare for it? The first thing I’ll say is that advice about what would make you a good law professor, and advice about what will make it likely you’ll become a law professor, are often two different things.

Most notably, there is often a debate about how much practice experience is the right amount before going on the market. But people in these debate seem to be talking past each other. People in favor of more practice experience often focus on how having more practice experience prepares people to be good teachers, mentors, advocates, and scholars. But I’m not sure anyone on the other side of debate disagrees with that point. People on the other side of the debate typically just think that practice experience beyond a few years doesn’t do a lot to help you get the job in the first place.    

So given how competitive the market is, it’s best to focus on the things that make it more likely you’ll actually become a law professor. What are those things that increase the probability that you’d get a job in the first place? It’s helpful to follow Brennan’s tip, in the book we are at least pretending to build off, and use backwards induction. The people that are the most successful on the market each year aren’t discovered by hiring committees that are scanning a stack of 500 CVs and just happen to pick one out of the pile randomly. They already have a good reputation with many relevant people in their field as an emerging scholar that has produced good research.  

So how do you get a good reputation as an emerging scholar? It’s not just about going to a good school or doing well there. There are students from top law schools that strike out on the market every year, and students that didn’t go to those schools that succeed. Regardless of what you did in law school, or how you did there, there are concrete things that you can do to build a reputation as an emerging scholar.  Like I said before, there is some randomness in the process, but it’s not a lottery.

There are many different ways people to get there, but all of them involve spending time producing research and engaging with law professors about that research. They also almost all follow one of two paths with the same intermediate stopping point before the market: an academic fellowship.

Path 1: Do a PhD in a Related Field. This is the surest fire way to improve your odds of producing good research, and thus getting a reputation as a good researcher. But it’s the highest opportunity cost too. If you’re going to do a PhD and you’ve already done a law degree, find ways to do it as efficiently as possible. You want to get through the program quickly and back on your way to legal academy. 

Path 2: Practice for a Few Years. A few years of practice experience is helpful, but the tricky thing is finding a way to practice and still have time to do the things that will help you land a fellowship. Given the demands of legal practice, this can be extremely difficult. But a few things you can do to improve your academic prospects while practicing are:

• Land a Clerkship. Clerkships can get students strong recommenders, expose potential professors to a lot of different areas of the law, and in some clerkships, there is time to write (or, at lest, most time than life as a big law associate).

• Work in a specialized Practice Area. If you work in a specialized field – i.e. a patent boutique instead of generalized litigation at a major firm – you’re more likely to interact with people in that specific area, including practitioners with ties to academia. You’re more likely to get research ideas, come across scholarship, etc. It’s best if you focus on fields like corporate law, where there is market demand every year, but specialized focus usually works.

• Continue to Work on Writing Papers. I know this is near impossible to do if you are in practice. But some people take advantage of breaks between clerkships and their jobs, find ways to take some time off, or focus on improving old research projects instead of starting new ones.

• Attend Academic Conferences. Go to conferences like Law and Society, the American Law and Economics Association, or the American Society of International Law. Meet people, and when you do, talk to them about substance.

 Whether you do Path 1 or 2, those paths should lead to the same place.

Do a fellowship. This should be the pre-market goal for almost anyone. The problem is that they are tricky to land because they have become so competitive. You should thus be taking the prior steps I just mentioned to improve your chances of landing a fellowship. Also, if anyone tells you “I became a law professor without doing a fellowship.” Ask them when they graduated law school. Because everyone now either does a fellowship or is a super-star, unicorn. Don’t believe me? Sarah Lawsky’s got the data.

Here is one final piece of advice that’s also cribbing from Brennan’s more general job market advice. The credentials of the people that succeed on the job market are more impressive each year. This isn’t anything to do with any law school specific pathologies. It’s not because law professors like prestige, erecting barriers, or anything else. This is trend exists in every single academic discipline, and it exists in plenty of other fields too.

So don’t just assume that doing what professors that got their jobs years ago did and hope it will work out. Instead, look at the CVs of the people that landed jobs this year. The research records of successful candidates will be better on average next year, and better on average the year after that. You need to plan to make your research record stand out relative to where the market is going to be in the future, not where the market was in the past.

———-

[1] This data is from Sarah Lawsky and available at PrawfsBlawg. Anyone interested in being a law professor should spend a lot of time with Sarah Lawky’s work documenting trends in legal hiring. The information she collects is the most important resource in the profession on what it takes to succeed.

How to Spend Your Time in Law School if You Want to be a Law Professor

Many people come to law school because it opens a lot of doors. Recently graduated from college and can’t decide if you want to work in politics or private equity? Go to law school and figure it out later.

It’s true that a law degree provides a lot of options. But most people take the exact wrong lesson from having those options. They think that having options means that they should avoid closing doors while they figure out what they’d like to do. 

That’s might work okay for making some kinds of career decisions, but it’s a pretty risk averse strategy to adopt if your goal is to land a job with very few openings. A better way to think about options in that case is that a law degree is an insurance policy that mitigates the downside risk of decisions that don’t work out. If you want a legal job that’s hard to get, you should go for broke and assume that having a law degree means that you’ll be able to figure out a back-up plan later if it doesn’t work out.

This brings me to what to do in law school if you want to be a law professor. The sooner in law school that students decide that they’d like to become a law professor, the more likely they are to achieve that goal. Law schools are full of people and resources that can help students become good legal academics. It’s best if the students are able to take advantage of those resources before they graduate.

At this point, I’m sure people are asking: how can anyone know they’d like to be a law professor early in their law school career? Well, everyone that starts an anthropology PhD Program has figured out they want to be a professor before graduate school. So you don’t have to take graduate classes before you can decide to be a professor. And I meet plenty of prospective law students that know they are interested in being a law professor. There are many people that think they are interested in potentially being an academic early in their legal education.

The problem is that those students rarely get good advice. The things most people will tell you to do if you are interested in being a law professor—get good grades, get on law review, clerk for a good judge—are outcomes. Students don’t need to be told that it would be helpful for them to do well at law school if they want elite jobs. That’s obvious. What the need to be told is what to concretely do with their time and how to direct their energy.

Imagine an economics PhD student asking their advisor how to get a good job, and the advisor responding: write a good job market paper. Sure, that’s the most important thing they can do. But telling the student about the targets they should be shooting for isn’t that helpful. The students already knew that they need to write a good paper. The helpful thing is guiding them through the process of writing it.

And in the law school context, exclusively focusing on the targets to shoot for is not only unhelpful, it’s actively harmful. This is because it causes people to delay getting focused on preparing themselves for an academic career. The only advice students hear is that certain targets are helpful to hit, so they hold off deciding if they want to be a law professor until they know if they’ve met those targets. And by doing so, they lose valuable time that they could be spending preparing themselves to be a great scholar. 

So how should you spend your time in law school if you want to be a law professor? Spend it figuring out yours answer to these five questions: (1) what subject do you want to (initially) research; (2) what methods will you use to research it; (3) who are the leading people currently researching that subject; (4) what has been said about the subject; and (5) what’s an important point that hasn’t been made about the subject.

What can you do to figure out the answers to those questions?

• As soon as possible, go ask a professor to recommend a recent law review in a subject you think you might be interested in. Actually read that article, think of some thoughts about the article, go talk to the professor about it, repeat.

• After 1L year, when picking classes, always take at least one class where you are writing a paper instead of a final. Spend your time during the semester on the paper, get feedback, make it better. Your goal shouldn’t be to write a paper that meets the requirements of the class (e.g. a 25 page paper on a topic that’s really well trodden). Your goal should be to use the seminar to write the first draft of a paper that will one day be publishable. You don’t have to actually publish the article — you’ll throw away plenty of drafts. But no one gets good at producing scholarship without practice.

• Take every academic workshop (e.g. public law workshop, law and economics workshop, law and philosophy workshop) that’s offered as a class. If these workshops aren’t offered as a class, figure out a way to get permission to attend anyway. Workshops will expose you to more scholarship and more scholars, and let you see what it takes to give a successful talk.

• Unless there is a clinic in your area of academic interest (e.g. you’re interested in criminal law and your school has a criminal defense clinic), avoid clinics. And even if there is a clinic in your area, still consider avoiding it. Clinics are extremely awesome ways to do interesting legal work and to get very close to clinical faculty, so for most students they are excellent options. But for someone focused on producing research, the opportunity costs are too high. [note: much of the advice on this post doesn’t apply if you want to be a clinical professor, but obviously this one doesn’t apply at all.]

• Work as an RA, but don’t do too much work as an RA. Working as an RA is a great way to get to know professors and get to know their research, but as quickly as possible you should be scheming about how to start your own projects.

• Get to know the youngest professors at your school; they have the freshest advice.

• Attend lunch talks whenever possible. Even if it’s not in your subject area, the more you know about law, the legal system, and legal research, the better.

• Take grad school classes in other departments in the field(s) closest to your research interest. Think legal history is interesting? Go learn what they are teaching aspiring historians.

• Take major black letter law classes in a range of areas. Concerned about the history of originalism? You should still be taking classes like Corporations or Antitrust. You’ll get more ideas, and also importantly, be able to talk intelligently to a wider range of people when you’re actually on the job market.

• Make friends with people that have similar goals. These friends don’t have to be in your law school, or even law students at all. But it’s helpful if you know more aspiring academics. Like I said before, peers give the best advice.

I’m sure there are more, but those are a few of concrete steps that people can take in law school to get to the cutting edge of research in a particular field. Even if you don’t “win” law school (e.g. your grades aren’t great, you’re not on law review, you don’t land a clerkship), you can still break into the legal academy if it’s clear that you know what it takes to be a leading researcher.

What if you’re already past law school and didn’t take these steps? Don’t worry; it’s not too late. We’ll talk tomorrow about what to do after law school. 

What To Do in Law School If You Want to be a Law Professor One Day

Suppose you do want to be a professor. Another chapter in Brennan’s book is devoted to how to succeed in grad school — what you should be doing in grad school to help get a good academic job afterwards. This is one of the places where the structure of legal academia is very different from other fields. In other fields, you go to a graduate Ph.D. program almost exclusively because you want to go into academia afterwards. All of your classmates are there for the same reason, and a good program will be focused on helping you achieve that goal.

By contrast, legal academics start by going to law school. At every law school, most of your classmates are not going to be legal academics. They are going to be lawyers. And law school alone will not be enough to turn you from a person interested in law into a future law professor. Plus, you’ll always have the option of working as a lawyer if academia doesn’t work out. So we should think of your law school choices as opening and closing doors. Here are some choices to keep your door to academia open.

Go to a law school that produces law professors. Most law professors go to a relatively small set of schools. (See here and here.) This might be partly correlation, but it’s at least partly a mix of training and signalling. So if you want to be a law professor, you too should go to one of those law schools. (Others have criticized this fact about legal academia, but again our goal here is advice, not reform.) If you did not get into such a law school, try to transfer to one.

Get good grades. Not all law schools have the same emphasis on grades, but every law school has some way of differentiating among its students. Be one of the better students. By the time you’re applying to be a professor, most schools won’t care so much about your grades, but for now this is helpful. Grades open the doors to clerkships and other more selective legal jobs, which are in turn both good training and good credentials for being a legal academic. They also impress your professors, whose help you’ll want later.

Read widely. Ph.D. programs set a canon of articles in the field you should read. Most law schools don’t. Most classes will focus largely on cases, and even the non-case readings will be idiosyncratic. (There are some exceptions, like Chicago’s class on Canonical Ideas in Legal Thought, but even a single class on the canon can’t actually teach you the canon.)

But if you want to be a law professor, you need to read a lot of articles by law professors. This will help you learn what a successful article sounds like, what ideas have already been covered to death, and what will seen as a real contribution. You can go about this in many ways, systematic or unsystematic, but you need to start reading scholarship even when nobody makes you.

Start writing. Law professors write a lot. But again, law school is not focused on teaching you how to write legal scholarship, so you need to seek it out. Seek out classes where you’ll write a paper, and professors who will give you feedback on it. Take one of your better ideas, and do an independent study with a professor. These papers may or may not be publishable. (I wrote five major papers in law school and four of them have never seen the light of day.) But they are good practice.

Get to know your professors. Getting a job as a law professor requires you to show a bunch of professors that you have good ideas and can produce good scholarship. Who can help you figure out how to appeal to these hypothetical future professors judging you? Your current professors. (Not all of them, of course, some of them are probably clueless; but as a pool, they’re still a really important resource.) If you impress your professors they will also recommend you later, which is helpful, but even putting that aside they can help you learn to do better work.

That said, every year there are law students who wander into the office of a professor they don’t really know and say “I want to be a professor, can you help me?” This is the wrong way to go about it. Professors like to write and talk about ideas. The way to impress a professor is to write and talk about ideas with them. Do a great job in that seminar or independent study. Ask a professor if you can run a few paper ideas by them. In other words, integrate your professors into the process of getting good grades, reading, and writing. You can’t make up for bad work with schmoozing.

If you do these things, then we can talk about the next step . . . .

But Not All Law Professors’ Jobs Are The Same

I agree with lots that Adam has written below, except maybe one thing, which is his claim that the jobs of people that work at different schools aren’t very different. I do think there’s a lot of truth to this. Compared to both lawyers and other academics, the differences are indeed less extreme.

But let’s be candid about the ends of the distribution. There are superstar law professors, usually but not always at the very top schools, whose job is different than most professors. They are so famous (at least in their field) that their work automatically gets attention, giving them access to prominent publishing venues, government officials, etc. You probably follow some of them on Twitter. Some of them use this power wisely, some of them use it to say irresponsibly careless things, but their research choices and public impact look totally different than the rest of us.

The job also varies depending both on how good your students are and on how good their future prospects are. I don’t mean that it’s only fun to teach smart students, or future millionaires. But there are law schools where some faculty worry that their students are effectively being cheated — paying too much money for too little prospects of future employment (and perhaps even too little prospect at bar passage). Indeed, I have had friends who quit their jobs as law professors in part because of this.

Neither of these is the typical case. But at the same time, you shouldn’t decide you want to be a law professor just because your very favorite professor in law school seems to have an awesome job.

Do You Really Want to be a Law Professor?

Brennan’s book on succeeding in academia starts by asking: Do you really even want an academic job? So that’s where we’ll start too.

For most academic disciplines, this question should be answered before the first day of graduate school. This is in part because, in most disciplines, there are huge differences between possible academic jobs (e.g. being an economist can mean being a community college professor teaching introductory micro or being a MIT professor running experiments in Kenya). This is also in part because the school you attend will have a huge impact on what academic jobs you are likely to obtain. Taken together, these simple facts mean that you need to think about if being an academic is right for you before your post-graduate education kicks off.

But unlike getting most PhDs, getting a JD isn’t a waste of time if you don’t end up becoming a professor. Far from it. Law degrees from good schools create many great career options. Working as a law professor is just one of them. So the relevant considerations for the law version of this question—do you even want to be a law professor—are different than they are for other disciplines.

Or put differently, the key decision isn’t whether you should go to law school; it’s whether you should pursue an academic career or another kind of legal career after law school. There are plenty of trade-offs between these options. For instance, if you become a law professor, you have higher job security, but lower geographic mobility. I won’t try to list them all. But here are three that are worth thinking about.

First, being a law professor is a high average, low variance career. Most tenure track law teaching positions are good jobs. You get to teach professional school students, even the entry level classes are pretty interesting, and there is time for research. But the differences across the profession are pretty small, whether you look between schools or over time. For instance, I spent three years as one of the people responsible for helping the Chicago fellows on the market, and during that time, there was maybe a 2x difference in compensation or teaching loads from the best offers to the worst offers the fellows received. Similarly, whether you’re very junior or very senior, the jobs of people that work at a given school aren’t very different.

This is not true of private legal practice. Whatever metric you care about, once you are mid-career, there are order of magnitude differences between lawyers’ jobs. There are lawyers making four figures and lawyers in working in similar areas of law making eight figures, and there are lawyers that never set foot in a court room and lawyers that argue before the Supreme Court every term. Becoming a law professor makes it highly likely that you have a great career, but the cost of that great career is giving up a lot of the variance.

Second, given the low variance over-time, the relative advantages of being a law professor are greatest at the beginning and end of careers. When I first started as a law professor, I couldn’t imagine trading places with my friends that were associates at law firms. They were getting emails with urgent tasks from partners most nights; I was getting more emails from people pretending to be my dean as part of phishing scams than genuine emails from my actual dean asking me to do things.

But over time, that gap has closed. Each year, my friends at firms have more autonomy, get more important responsibilities, and do more interesting work. But if you are passably competent in academia, over time you will accumulate more service responsibilities and time commitments. (It’s true that responsibilities pile up in other lines of work too; but in academia each new responsibility is replacing freedom, not lower level work.)

The benefits of being an academic also seem to be huge in the last decade or so of your career. This is because, as I mentioned before, the trajectory of an academic career is pretty flat; so you’re ahead again when the curve of other careers takes a downturn. 

Third, many legal jobs primarily assess input, but being a law professor means you’re judged exclusively on output. At most firms, some amount of bonuses may be about the quality of your output (e.g. did you get good reviews, did you get a good result for your clients, etc), but the first order determinants of compensation are inputs (e.g. how many hours did you work). This balance may shift over time, and varies some by type of legal career. But at the end of the day, lawyers typically get credit if you’re seen working hard for your clients.

But as a law professor, no one ever cares about your input. It doesn’t matter if you spent five weeks or five years working on an article, it only matters what people think of the final product. The same is true with teaching. There are professors with reputations as being great teachers that are essentially charismatic people that wing it; and professors with reputations as being bad teachers that work tirelessly to prep their classes. Their effort doesn’t matter.

If you’re considering being a law professor, it’s worth asking yourself if you’d thrive in a system where you are evaluated this way. I frequently mention to lawyers that being a professor means that no one cares about your input. The first reaction is always jealousy: “I have to bill my time in six minute increments, but no one cares, or knows, how you spend your time?” My response is to always ask if they’d prefer their bonus to be based on people reading a brief they wrote and deciding if it’s better than a brief written by their peers. People then point out how unfair it would be to not get paid for all the hours you actually work.

Now, I should have probably done this right away, but let me lay my cards on the table. I think being a lawyer is a great job. I’ve talked to plenty of law professors that think actually doing the job they train their students for would be some sort of punishment. I don’t have the data to back this view up, but I always have a hunch that the law professors that look down on practice don’t actually know many lawyers. Or, maybe more realistically, when they interact with the lawyers they do know, they do more talking than listening. Because most lawyers I know—whether they are in big law or working as a public defender—have jobs that seems pretty great. But I do think my job is even better.

Why Good Advice on Legal Academia is Hard to Get

Getting good advice on how to become a law professor is much harder than getting good advice about succeeding in most other academic disciplines. The reason is simple: peers give the best advice. 

When you start graduate school in fields like economics, philosophy, or political science, there are ample opportunities to interact socially with students that are further along in the program. It’s not only easy to get advice from them; it would be impossible not to. Over weak coffee and cheap beer, there are constantly conversations full of tips on how to get ahead.

Want to know what classes are worth taking? What conferences are worth trying to attend? Where to find extra funding? What kind of research projects are hot on the job market? Other students will know, and they’ll be happy to talk about it. And perhaps most importantly, every year, the students that are furthest along in the program will go through the job market, so you can learn from their experiences.

It’s also easier to get good advice from professors. Young professors will socialize with graduate students in a way that I never see happen with law students, and even senior professors are frequently on a first name basis with graduate students in their departments.

But law school just doesn’t work that way. When you’re a 1L, the 3LS will have good advice on how to prepare for finals, bid on classes, succeed on law review write-on competitions, or land a clerkship. They have spent years learning how to game law school, and most are pretty good at it by their last year. That doesn’t mean that academically inclined students won’t offer advice to their peers about how to become a law professor—they just don’t know what they’re talking about.   

This brings me to Brennan’s book, Good Work If You can Get it: How to Succeed in Academia. It’s full of advice that’s likely old news to people with peers and professors that give blunt advice; but it’s still valuable for people that don’t have those networks. And in law, most people don’t have those networks. So I’m hoping these posts can help people trying to figure out if they want to be a law professor, and, if so, how to become one.

So tomorrow we’ll start dishing out our thoughts on succeeding in the legal academy. But throughout, there are two principles from Brenna’s book that will inform my posts.

First, giving advice and debating reforms are different conversations. My experience has been that people often quickly pivot from advice about how to succeed in legal academia to debating how legal academia should be reformed. For instance, my advice to (almost) anyone that wants to be a law professor is that they should do a fellowship. Now, it’s true that the de facto fellowship requirement may systematically disadvantage certain kind of candidates, and maybe we should reform them. But that doesn’t mean a current aspiring law prof shouldn’t be told fellowships are the surest path to success.

Second, the entry level market isn’t a lottery. That doesn’t mean that luck doesn’t play a role. We all know people that we think over or under placed (or that we think are excellent but failed to place entirely). But there are actions that people can take to improve their odds of success on the market. I’m going to focus on the steps people can take to do better; not on pointing out that there is some randomness in the process.

To be clear, I’m on board with reforming the legal academy and making the job market less arbitrary (and I’m collaborating with other profs on several research projects on those topics). But these posts aren’t about what should be changed; they’re about how to succeed in the current system.

Jason Brennan, Good Work If You Can Get It (as applied to the legal academy)

Earlier this month Adam and I both picked up copies of Jason Brennan’s new book, Good Work If You Can Get It: How To Succeed In Academia. This is one of the most candid, unromantic accounts of the job of a professor, how hard it is to get such a job, and what you can do to get such a job if you want one. (The book advertises itself as “candid, pull-no-punches”: “The hard truth is that half [of PhD students] will quit or fail to get their degree, and most graduates will never find a full-time academic job.”)

You can get more flavor from Bryan Caplan’s review:

Brennan calmly and crisply cuts through piles of misconceptions, lame rationalizations, and mountains of Social Desirability Bias to tell would-be professors the cold, hard truth about their would-be occupation.

Good Work could just as easily be called Everything You Ever Wanted to Know About Becoming a Professor… But Were Afraid to Ask..  He describes the main types of academic jobs, including the multitudinous low-status positions that excellent students rarely encounter first hand… but often end up occupying after grad school.  He teaches backwards induction: figure out where you want to end up, then line your ducks up in reverse order to reach your goal.  He urges would-be professors to start publishing ASAP:

As a graduate student, you are training for the Olympics.  You are trying to win a faculty job.  You will be competing against three hundred to one thousand people who are the best in the world at what you study.  Your least qualified competitors will be impressive people with decent credentials.  Your best qualified competitors spend all five (or more) years of graduate school teaching innovative classes, publishing papers in top peer-reviewed journals, networking with people around the world, and amassing a resume on par with or better than the resume of most currently employed assistant professors.  They spend their entire grad school career training to get the job you want.  If you want a job, you must not only be better than they are, but look better on paper.

Don’t like it?  Then maybe academia’s not for you:

Or from this interview with Brennan, including a list of tips like: “Prioritize Writing. Spend less time teaching. Have multiple projects at all times at all different stages. When you have a hammer, find multiple nails. Look for holes in the literature. Write first, read second.” Or “most service work is not worth doing, period, by anyone.”

Anyway, although I have some disagreements with Brennan’s account of academia, I found it a really helpful starting point for anybody thinking about it as a career path. But I also found myself wondering how this advice applies to the legal academy, which has some very important differences from the arts-and-sciences jobs that Brennan writes about:

• Our graduate school program is shorter, focused on being a lawyer rather than a professor, and much more expensive.

• There are a lot fewer law schools than there are colleges, and very few law schools where professors are not expected to do active research and publishing.

• Our publishing system is centered on student-edited law reviews.

And more.

We briefly wondered if we should try to dash off a book of our own, How To Succeed in Legal Academia, but it seemed like the audience for that book would be pretty small. (But, hey, if you are a publisher and disagree, email us!)

So instead, in the next few posts, Adam and I will provide our takes on Brennan’s advice, as applied to the legal academy.

News Stories About Qualified Immunity

I’ve been talking to reporters lately about qualified immunity. Here are a few of the stories:

Thomas Harrison, Courthouse News, New House Bill Would Revoke ‘Qualified Immunity’ For Police (I discuss a more modest good faith defense that I would support)

Madison Pauly, Mother Jones, ‘Qualified Immunity’ Gives Abusive Cops A Free Pass. Will The Supreme Court End It? (I’m quoted on the difference between legislative and judicial change)

Amber McKinney, Bill Donahue, and Alex Lawson, Law360 Podcast, Why Are Cops (Sort Of) Above The Law?, here’s a permalink to the iTunes version. (I spent fifteen minutes talking to them about what’s going on with qualified immunity)

Qualified Immunity: A Primer

In light of the recent attention to police abuses, a lot of people have been asking questions about the doctrine of qualified immunity, which shields most police officers from being sued unless they are “plainly incompetent” or “knowingly violate the law.” There’s much more to say about the doctrine than can be said here, but I wanted to put three quick points here.

Where can I learn about qualified immunity?

I have an article published in 2018, Is Qualified Immunity Unlawful?. Joanna Schwartz at UCLA has done a ton of work on the doctrine, much of which is usefully synthesized in her article The Case Against Qualified Immunity. But if you don’t have time to read a whole article, these FAQs published by the Cato Institute are quite informative and yet easy to follow.

Can the Supreme Court modify the doctrine of qualified immunity?

Yes! The Supreme Court has some pending cert petitions now asking it to revisit the doctrine in various respects, including in Baxter v. Bracey, Zadeh v. Robinson, Corbitt v. Vickers, West v. Winfield, and probably a few others I’m forgetting. It has put these cases on the calendar for many consecutive conferences, and is currently scheduled to consider them again tomorrow. We could find out on Friday whether the Court will hear those cases, but it also may relist them yet again.

Can Congress modify the doctrine of qualified immunity?

Yes! Qualified immunity is an interpretation of the statute codified at 42 U.S.C. 1983, so Congress simply needs to amend the statute. How to amend the statute is slightly tricky, because qualified immunity is not mentioned at all, so it’s not as simple as taking out the qualified immunity clause. There is no qualified immunity clause.

But all Congress would need to do to eliminate the statute is add a sentence to the statute, like so:

This section shall apply to a deprivation of rights, privileges, or immunities secured by the Constitution and laws without regard to whether—

(1) the defendant mistakenly believed that his conduct was lawful; or

(2) the rights, privileges, or immunities were previously recognized or established by judicial decision.

(Of course, along similar lines, you can also imagine how Congress could modify the doctrine without overruling it.)

Now of course there is an irony here, that the Court might think it should wait for Congress to decide what to do, and Congress might think it should wait for the Court to decide what to do, so maybe nobody will do anything. But both routes are possible.