Selective Critiques of Originalism?

At The Originalism Blog, Michael Ramsey has a post on a forthcoming article by Mark Graber on the meaning of "insurrection" as it appears in Section Three of the Fourteenth Amendment. From the abstract, Graber claims to demonstrate "that the constitutional/common law of insurrection was well-established and well-understood in 1866," and that the term had "'a precise and well-understood meaning.'"

Michael Ramsey follows up on Graber's abstract with the following spicy commentary.

Some very confident statements here from a respected legal historian using history to establish a determinate original meaning of constitutional text relevant to a modern controversy.

So will historians and others who think history is too contingent and ambiguous to support the originalism project protest these conclusions?

Hypothesis: the 'history is indeterminate' critique of originalism applies only to originalist arguments that produce conservative results. Originalist arguments that produce left-leaning results are fine. For example, in addition to Trump disqualification: emoluments, presidential immunity, birthright citizenship, presidential war power, and that's just a start. I would like to be proved wrong on this.

I've critiqued the use of history by originalists before. In this article, for example, I argue that legal originalists tend to use history as precedent--bending it to fit the needs of clients, preferred arguments, or the need to reach a conclusion in a dispute. To an extent, the ambiguity of historical evidence poses problems to endeavors to determine original meaning. But I'm more concerned with attempts at doing history in the context of legal disputes, which may lead to selective or opportunistic citations and framing of historical evidence to fit the goals of those presenting the evidence.

Do I have a beef with Graber's claims? I don't pretend to be an originalist or a historian, so I have little to say on the merits of the claim. I do think that as a matter of "original public meaning" originalism, questions remain--as Graber's argument appears to proceed primarily from legal authorities of the time, such as court opinions, legislative history documents, and legal treatises. Whether the evidence demonstrates what a member of the public would have taken Section Three to mean at the time of ratification is, I think, a distinct question that I'm not sure this evidence fully answers--largely because I'm not sure if that question can be answered. 

I don't think this raises any real problems with Graber's arguments. He's explicit about the sources he's using and the types of meaning discussed. It's my understanding that he doesn't claim (here or elsewhere) to be an originalist or to engage in originalism.

To tell the truth, though, I'm not all that invested in diving into the issue. Beyond my lack of expertise, I don't see much of a point in sifting through the historical evidence of what a bunch of long-dead folks thought about Section Three not so much because I don't think nothing's there, but because nothing will come of that work.

When originalism counsels against politically conservative results, today's Court simply avoids the method. Despite a sudden tsunami of scholarship and commentary on the original meaning of Section Three of the Fourteenth Amendment, the Court simply brushed aside a Section Three challenge to Trump's eligibility with structural arguments rather than a consideration of original meaning. This happened later in the same term when the Court decided Trump v. United States, granting Trump broad immunity from criminal prosecution on structural constitutional grounds. With a Court that picks and chooses its methodology in a manner that aligns with the political goals of its conservative supermajority, what is the point of devoting attention (favorable or unfavorable) to "left-leaning originalism" that one knows the Court will simply dodge?

As for where I devote my attention in my own work, I'm most interested in how originalism is employed by legal actors and calling out errors in originalism's execution. As a result, I focus on questions of history and original meaning the Court has purported to resolve. The Court's selective use (and avoidance) of originalist methodology results in a body of law in which its few originalist or traditionalist analyses lead to conservative outcomes. Because my work is drawn from what the Court does, I'm left with little to critique beyond goal-oriented facades of historical analysis in the service of conservative political goals. I'd welcome a change of pace, but I won't be holding my breath.

Originalism, Bullshit, and Overconfidence

A while back, I wrote an article entitled, "Is Originalism Bullshit?" The current version of the piece is available here, and it will eventually be published in the Lewis & Clark Law Review. Those eager for invective and name-calling--please download and cite to the article before reading on.

Is Originalism Bullshit?

Reading past the article's third page reveals that my goal in the piece is to discuss originalism in both practice and theory in the context of theorizing on the nature of bullshit. As it turns out, a fairly robust literature on bullshit exists, and scholars of philosophy, sociology, rhetoric, and law have grappled with defining the term and applying it to discourse in various contexts. Harry Frankfurt's foundational essay, "On Bullshit," is largely credited with getting the ball rolling, and my article applies the lessons learned from interdisciplinary engagement with the concept. My focus is constitutional interpretation, and particularly interpretation that resorts to history to inform claims about constitutional meaning. While the title of the article addresses originalism, I'm similarly concerned with the Court's attention to history and tradition--a traditionalist approach that I've argued elsewhere is distinct from originalist interpretation.

Bullshit--simplified and summarized--is typically defined as statements made without regard to the truth of their content, made in service of some purpose other than communicating the truth to the listener. In the article, I address how bullshit may manifest in legal contexts and suggest that originalist and traditionalist methodologies lend themselves to abuse by bullshitters. Originalism, in its most typical form, urges interpreters to determine the original public meaning of a constitutional provision. This is--at least in theory--a historical inquiry. One must determine what the general public (or a reasonable member of the general public--whoever that is) believed a provision to mean at the time of ratification. This inquiry, originalists acknowledge, may require a variety of methods, including immersion in the source material and attention to a broad array of contemporaneous comparable usages.

Unfortunately, performing a careful, balanced historical investigation is difficult, given the time, ethical, and professional demands attorneys and judges face. Those purporting to engage in historical analysis frequently goof up, infusing their investigation of the past with present-day concepts and assumptions (among other errors). This is unsurprising. Those engaged in originalist inquiries--at least on the ground--tend to be lawyers and judges. They are not trained historians. They are, instead, trained in legal argument and reasoning, and tend to slip into these modes of analysis when purporting to engage in historical investigations. 

Legal academics, as well, frequently lack the training and experience required for rigorous historical investigation (including training to avoid importing their present-day perceptions onto the materials they analyze). Making things more concerning, originalist legal scholars tend to eschew the work of historians--distinguishing the legal questions originalism resolves from the more abstract and unbounded questions that occupy the attention of professional historians. Even those with historical training may face temptation to skew their analysis--conscious or unconscious--as they may have particular cases in mind, or wish to reach conclusions that are sufficiently firm and dramatic to draw the attention of law review editors, judges, and Justices.

All of these motivations, combined with a general lack of historical training (and not infrequent disdain for the historians) are fertile ground for bullshit to thrive. Originalists--particularly practicing originalists--may be educated enough to know the complexity of which they speak, but willing to paper over that complexity in their own claims in order to accomplish their goals. Lawyers need to advocate for their clients. Judges need to reach a decision, rather than wallow in the uncertainty of a potentially contradictory and sparse historical record. The result is a tendency to make uninformed, overstated, and potentially false claims about historical meaning in service of these goals. This, I argue, is bullshit.

Throughout the article I discuss examples of bullshit from the bench. I decline to identify any originalist scholars as bullshitters. Despite the title, I try to keep things a bit classy throughout the piece. I'm not sure if naming names accomplishes that goal.

Robert Natelson

Robert Natelson, depending on which of his many online biographies you read, is "one of America's best-known constitutional scholars," and is "widely acknowledged to be the country’s leading scholar on the Constitution’s amendment procedure and among the leaders on several other topics." "His publications are too numerous to list," (is such a thing possible?) and while he was once a law professor, he is "currently the Senior Fellow in Constitutional Jurisprudence at the Heartland Institute in Arlington Heights, IL, the Independence Institute in Denver, Colorado, and the Montana Policy Institute in Bozeman, Montana."

While his own website includes no CV, it includes the following regarding his expertise and experience:

There are several keys to Professor Natelson’s success as a scholar. Unlike most constitutional writers, he has academic training not merely in law or in history, but in both, as well as in the Latin classics that were the mainstay of Founding-Era education. He works to keep his historical investigations objective. He also has the benefit of lessons and habits learned in the “real world,” since prior to entering academia he practiced law in two states, ran his own businesses, and worked as a journalist and at other jobs.

 Historical expertise and objectivity? You got it. From his Independence Institute bio:

[U]nlike most other constitutional writers, he has academic training in history and in the Greco-Roman classics that were the mainstay of Founding-Era education. Finally, he does not enter a research project to promote some pre-determined conclusion. His agenda is to find and publish the truth.

Natelson's opinions on "the truth" sometimes lead to conflict. In 2022, Natelson took issue with a brief that by Gregory Ablavsky that addressed Natelson's work. Natelson's characterization?

When I finally got a chance to review it, I was stunned. Disagreement is part of the scholarly and legal process. But this was more than disagreement: The section of the brief directed at me had a “shyster” quality that rendered it out of place for a legal scholar and, indeed, for any brief submitted to a federal court.

The brief repeatedly misrepresented my positions—and on one occasion, the position of Justice Thomas. It threw unfair imputations on a careful, objective—and, I believe, accurate—examination of how the Constitution’s ratifiers understood the Indian Commerce Clause. It wrenched quotations out of context to make them appear to say things they did not. And it contradicted statements Ablavsky himself had made in his 2015 article.

Natelson went on to critique various examples of what he claimed were misrepresentations of his work, as well as what he asserted were mistakes in Ablavsky's historical analysis.

Ablavsky, in turn, responded with a lengthy takedown of Natelson's critique and methodology. It's available here. In brief, Ablavsky critiqued Natelson for unwarranted certainty over the intention of certain founders, incorrectly stating that Ablavsky relied on nonexistent sources, and confusing differences of interpretation with factual errors. From Ablavsky:

All of these issues frame a larger disagreement between Mr. Natelson and me. He finds great certainty in his interpretations of the past and of other scholars—so much so that, when I earlier pointed out much of his argument rested on an inaccurate version of a quotation that, when corrected, directly contradicted his original interpretation, he insisted that the corrected quotation still did not trouble his original conclusion. You will find a similar attitude throughout his “cite check”: deep confidence that not only is his interpretation right and mine wrong, but that my view is so egregiously incorrect as to not warrant publication.

Sam Bray and Paul Miller have pointed out missteps in other areas of Natelson's work--the uncritical repetition of which have had ripple effects throughout the academy. Natelson's evidence for his bold conclusions is--as Richard Primus argues--"thin." Yet, as we'll see, Natelson remains quote confident in his abilities.

Natelson and Infinite Regress

Years later, Natelson wrote a series of articles (based on this piece) contending that the Constitution permits states to act independently of the federal government to address the entry of undocumented immigrants due to various provisions detailing what states may due in cases of invasion. In response to this...questionable claim, David Weisberg warned against a "Paradox of Originalism," in which discussion of a historical definition of a term requires inquiries into the historical meaning of the definition and its terms--which continues ad infinitum. 

In response, Andrew Hyman conveyed Natelson's thoughts:

Infinite regress is possible only if the researcher has no substantial background in 18th century discourse and has to rely on a dictionary to look up every word in every definition. However, competent originalist scholars make themselves familiar with 18th century discourse. In my case, for example, I've been immersed for many years in a vast array of official 18th century letters, newspaper reports, essays, legislative records, case reports, handbooks, legal treatises, and other material. I've also read the founding generation's educational canon and a fair amount of contemporaneous literature.

Once you are conversant with 18th century usage, you know which common words have changed meaning and which have not. The word "permission," for example, has not changed meaning. But even before beginning our "state war powers" project, I knew that one of the 18th century definitions of "hostile" was not commonly used today. It was necessary to consult a dictionary only to confirm and document this, because a law review editor wasn't going to just take my word for it.

I don't expect lawyers and judges who interpret the Constitution to make that kind of commitment to learning 18th century English. That's what scholars are for. Scholars should publish to provide accurate guidance. It is regrettable that so many legal writers publish before they have acquired the necessary tools---and not to provide accurate guidance but to influence.

(On a side note, that very last sentence is interesting, in light of Natelson's pride over the Supreme Court's citation of his scholarship, his work on amicus briefs, and his explicitly stated goal in the article at issue of "enabl[ing] the judiciary to change course. Sounds like "influence" to me.)

Where is all of this going, and what does it have to do with originalism and bullshit?

I quoted a small portion of Natelson's response in a portion of my article in which I raised concerns over originalists who disregard the work of historians and the critiques of historians. As noted above, some originalists tend to distinguish their work from that of historians--critiquing historians as addressing fundamentally different issues than those of legal interpretation which concern originalists. Natelson's overconfident rejoinder to Weisberg seemed a fitting example.

Or did it?

Natelson and Hyman Strike Back

Over the weekend, I received an email from Robert Natelson responding to my article on originalism. After a brief word on how the title and tone of the article cheapened the discourse, he took issue with how I'd quoted him in the article. Natelson insisted that he was not rejecting historians' critiques, and noted that he cites "historians of the era copiously" in his work. While I wasn't sure this was particularly responsive (as I was not urging engagement with historians of the era, but, rather, the work of modern historians) I responded with a kind (but ominous) promise to make that portion of the article more precise and thorough.

Two days later, Andrew Hyman wrote a post on The Originalism Blog, essentially repeating Natelson's earlier concerns (though in a more civil tone). From that post:

Natelson’s self-described procedure was applied to “common” words that he had already encountered in writings from the eighteenth century, and if instead obscure words had been involved, which Natelson had not previously encountered, then doubtless he would have consulted the old dictionaries before forming any notions about what he would find in those old dictionaries. In short, I don’t see anything wrong with the way Rob Natelson proceeded in this matter. As a coauthor with Rob, I can attest that we cited many historical critiques, without picking ones supporting our conclusions, and the idea that Rob has no use for such critiques is incorrect.

What might have been an issue to address with a minor revision and a slightly beefier footnote is now out in the open. 

And so...

I appreciate the attention to my work. It's also nice to see that both Natelson and Hyman appear to have made it through 47 pages on why originalism lends itself to bullshitting before finding a flaw. But it doesn't seem right to leave Hyman's characterization of my work as "misleading" floating around without a rejoinder.

To an extent, Natelson and Hyman are right. I don't think that the problems with Natelson's approach to history are precisely the same as those exhibited by originalists who disregard the work of historians as irrelevant to their interpretive inquiry. Natelson's approach is similarly problematic in a somewhat different way.

Natelson, in the excerpt I quote in my article, and as other scholars observe of his work elsewhere, evidences an overconfidence that risks crossing the line into bullshit territory. Ablavsky, Bray, Miller, and Primus (in their pieces linked above) detail examples of how this confidence leads to overambitious conclusions that extend beyond the support of the cited evidence. And in the portion I quote, Natelson expresses a level of confidence in his own abilities such that he need not resort to consulting historical sources to know the answer to a question. Going into the historical weeds and pulling relevant sources is only necessary to appease the editors. But it's ultimately overkill, since Natelson already knows the answer. 

A possible response is that overconfidence in this vein does not lead to bullshitting, but is rather more likely to result in earnest mistakes. One who genuinely believes that they are communicating the truth about original meaning is not a bullshitter, as they care about the truth of their assertion and believe that they are informing the listener of what is true. This may be the case in which the speaker is overconfident. To be sure, the overconfidence is still worthy of criticism--but not on the grounds that it's giving rise to bullshit.

But I don't think this response holds up. To start, I remain skeptical of Natelson's repeated assertions--both in the broader context of the statement I quoted, and in his various biographies--that his primary concern is The Truth. He isn't shy about calling out the distorted perspectives of others--accusing legal academics of being drawn to conclusions by their left-leaning political ideologies. And yet, Natelson has positions with multiple...let's call them, "Think Tanks," which routinely participate in litigation over contentious issues. He isn't shy about his own participation in this litigation, and he flaunts the Court's reliance on his work. Taking on the role of advocate involves the risk that one will interpret ambiguous evidence in a manner conducive to one's goals--including in subtle manners of which one might be unaware. Desiring recognition in the form of judicial citations incentivizes strong conclusions of which Justices might approve--incentives which may be inconsistent with historical evidence that is sparse or contradictory.

To be sure, these concerns are speculative. Perhaps Natelson did indeed immerse himself systematically in the historical evidence (despite lacking any formal training or education in history beyond undergraduate education--at least as far as I can tell), and perhaps the effects of this immersion are so strong that they crowd out the influences of Natelson's current advocacy work and prior political involvement. That voice in the back of his head telling him the true meaning of the Constitution may indeed belong to James Madison, rather than Justice Thomas whispering "I'll cite you!" 

But none of this changes the fact that Natelson has repeatedly been called out on his overconfident approach to interpreting historical evidence--both by legal scholars and trained historians. In the face of these rebukes, Natelson remains steadfast in proclaiming his expertise and knowledge of original meaning, and isn't afraid to lash out at those who dare disagree.

And so in my article he will remain.

Going on the Academic Job Market - Part Four: The Callback Interview and Job Talk

After a longer-than-expected hiatus, I'm finally back with the fourth installment of my advice posts for those going on the legal academic job market. In the meantime, the 2023 hiring season seems to be settling down, with Sarah Lawsky recently posting her always-helpful entry level hiring report for the 2023-24 hiring cycle. It looks like hiring rates were slightly down and applicant numbers up in comparison with the prior hiring cycle. 

Why have I taken so long between my prior posts on the job market and this post on the callback interview and job talk? Part of the explanation consists of the demands of the first year at a new institution (which included two new preps--one of which was a course I created from scratch). I've also tried to remain productive during the academic year, while also jumping into conference participation at what turned out to be a somewhat unsustainable rate. And summer teaching and course preparation have kept the last couple of months busy as well.

But my primary reason for delay was a lack of experience with the callback interview and job talk. When I went on the market, I threw my hat into the ring at the school where I was visiting. This, unfortunately, meant that I couldn't attend any of the candidate interviews of job talks that were going on that year. Additionally, I'd had very little experience attending conferences or workshops, giving me little background on the dynamics and unwritten rules of academic talks. My knowledge of interviews and job talks were therefore limited only to my personal experiences. While that's the theme of these posts, I realized that a year of attending job talks and seeing how candidates were received would help me better-inform readers. To that end, the following discussion takes into account both my own experience on the market, as well as insights from attending other job talks (and numerous conference/workshop presentations) over the past year.

My prior posts have discussed the initial decision to go into legal teaching, putting together one's application documents and FAR form, and the initial screening interview. This post moves beyond the screening interview to the callback interview. In doing so, I also talk more about the job talk paper which applicants are expected to submit and eventually present to those schools that call them back for interviews.

The usual disclaimer from my prior posts applies here: I'm primarily speaking from my limited personal experience going on the market last year, along with anecdotal evidence from others that I picked up along the way. I encourage all readers to reach out to those who have been through the process before, including professors who've recently served on hiring committees, alma maters who are often eager to help graduates out, and other schools' publicly available advice on the application process. Examples of these resources are included at the end of the post.

Callback Interview Basics

The only thing I can say about callback interview scheduling with much certainty is that you receive the invitation after your initial screening interview. From my limited experience, timing on the callback varies widely--I had some very quick requests, and some took a number of weeks. Other schools may do an initial round of callbacks but fail to fill their positions (either because they cannot agree to hire the candidates invited, or because those candidates secure positions elsewhere). This may lead to a further set of callback interviews--meaning that you may receive some callback inquiries months after your initial screener. Occasionally, scheduling conflicts and administrative hoops may lead to similar delays. 

From this, a few lessons. First, if you do a screening interview and don't hear from the school for a while, don't assume that they've ghosted you. Second, if you never end up hearing back, or if you receive a note that the committee will not be moving forward with your application, you should not take this as a reflection on your strength as an applicant. A lot is going on behind the scenes, and the school's decision can result from considerations such as teaching needs, scheduling demands, budgetary or administrative constraints, and other considerations over which you have no control.

Callback interviews often take place over two days. The first day is typically a dinner with several members of the hiring committee which serves as an initial introduction and icebreaker. The second day consists of a series of interviews, introductions, and a paper presentation at the law school. 

Callback interview events often include all or most of the following:

Group Interviews: You spend an hour or so in a conference room or the faculty lounge, where multiple members of the faculty will speak with you. Questions may raise from interview-like questions about your background, scholarship, and teaching interests, to more conversational topics like things to do around the city, background on the teaching and scholarly environment of the school, and other topics.

Student Interviews: Most of my callback interviews involved an interview with several students who would ask about my background, interest in the law school, and teaching strategies. I found that these interviews often focused more around pedagogy and teaching techniques than other interviews.

Dinner/other meals: Most callback interviews involve a dinner with several members of the faculty committee. The atmosphere at these dinners are often more relaxed than interviews throughout the day of the callback itself, but these interactions are often treated as a measure of how easy one is to get along with as well as an opportunity for both you and the committee members to learn more about one another. Several of my interviews involved a breakfast with faculty members as well before the day of interviews began. As with the dinner, these breakfasts tended to be more relaxed and informal.

Meeting the Dean: Most campus visits will include a meeting with the school's dean. From my experience, these tended to be informative discussions, with most deans primarily welcoming questions from the candidate and explaining the school's broader strategies and vision.

The Job Talk: You present an article and field questions from members of the faculty, typically over the course of an hour or so. Here, I'll discuss the talk itself. Elsewhere, I'll provide more detailed thoughts and suggestions on the job talk paper.

Other schools may include other events as part of their callback, but these are the common elements that I experienced when I went on the market.

Callbacks: The Interviews

While the interviews during a campus visit will vary by degree of formality, but keep in mind that they are all interviews. People will remember what you say, whether it's in a group interview, during a job talk, or at a dinner or breakfast. While you should strive to be conversational and approachable, avoid getting TOO comfortable.

Because you will likely have multiple rounds of interviews, the questions you'll be asked will likely run the gamut of subjects. At faculty group interviews, for instance, questions will likely range from specific inquiries about your research agenda and prior writings, to broader questions over why you are interested in academia overall. There will likely be a fair amount of overlap with the subjects covered in screening interviews, but here you will have more of a chance to flesh out your answers and address follow-up questions--which are often absent from the time-limited screening stage. 

This overlap means that you can often prepare for these interviews by using your preparation for the screening interview as the starting point. Look over the questions you were asked at the screener, and think through how you can expand on those answers, as well what follow up questions your interviewers might ask. While I tried to skim over the backgrounds of professors on the hiring committee and others who worked in my areas of interest, I found this sort of preparation work to be extensive and easy to forget. It's impossible to predict who you will speak with at all of your interviews. While there's likely a greater chance that those who teach and research in similar areas will be there, the timing of the interview has just as much of an impact on who will attend.

I generally found callback interviews to be conversational. Frequently, interviews with faculty will be group affairs, and questions may just as well prompt comments from other faculty members. While you want to be sure to answer the questions that are asked, realize that these interviews are also a test of how easy you are to talk to in a group setting, and what you will be like as a colleague. To that end, act as naturally as possible, while remaining professional. 

This may be easier to do if you keep the following in mind: callback interviews are an indicator of serious interest. It isn't cheap to fly someone out to a school, put them up in a hotel, and pay for their dinner. And it certainly isn't easy to align the schedules of the professors, deans, students, and others who will take part in the interview process. 

Callbacks: The Job Talk Paper

The job talk is typically an hour-long process in which you present your job talk paper to members of the school's faculty and field their questions on the paper. Job talks perform a variety of functions. They serve as a window into the candidate's research agenda and scholarship. They indicate whether and how a candidate can distill complex concepts and arguments into something a general audience can understand. They also serve as an indicator of how a candidate may act as a teacher--including how they act in front of a crowd, whether they're clear and understandable, and how responsive they are to audience questions.

What sort of paper is presented at a job talk? While this can (and may) be the subject of its own post, some thoughts may be helpful for now.

To start, some basics. The job talk paper should be in final form. Paper proposals, works-in-progress, and early drafts may be appropriate for certain workshops and conferences, but they do not belong in an entry-level job talk (I specify "entry-level," because I've seen successful talks involving earlier-stage drafts at the lateral stage--but even these involve some level of risk). The paper should be complete and polished. While many at the hiring institution may refrain from reading the whole thing, there will always be a relentless nerd or two on the faculty who will take the trouble of doing so and likely communicate their impressions to their colleagues. Impress these weirdos!

While the paper should be complete, it generally should not have already been published. The job talk is meant to be a workshop in which faculty engage with the paper and provide substantive comments and suggestions on revisions or further potential developments. Coming in with an already published piece upsets these expectations and will likely be poorly received. Ideally, the job talk paper should be accepted with a journal but still in the editing stage. Does the journal placement matter? Word I've heard on the street suggests, unfortunately, that it does. Lots of law faculty talk a big game about how much of a crapshoot the submissions process is and how little they care about law review rankings. But when it comes to the job talk paper, placement will likely matter with at least a portion of the faculty making the determination. If a job talk paper hasn't yet been accepted for publication--it isn't the end of the world. There's a chance that it may not be viewed as seriously as an accepted piece, but I get the impression that applicants are better off presenting an unpublished, unaccepted paper than one that's already been published.

The substance of the paper should reflect your research interests and complement the substance of your research agenda. When I gave my job talk (and when I give most other talks), I spend a few minutes at the outset explaining how the piece fits in with my other work and broader scholarly agenda. As an audience member at job talks, I like seeing similar introductions--and these introductions may be helpful for those audience members who've neglected to look over the applicant's research agenda before the talk.

It may also be strategic to choose a job talk paper that might appeal to as wide an audience as possible. If you write primarily in criminal law, but a paper has potential implications in another field--say constitutional law--it may be worth using this paper and flagging those implications in the talk itself. Doing so can get the attention of more participants and prompt more discussion during the talk itself. The more that attendees at the talk get to hear themselves talk, the better off you will likely be!

More than anything, the job talk paper should be a piece in which you have confidence and which you are willing to work with at length. It's hard to love any paper after presenting it and having it get picked apart a half-dozen times. You can minimize this frustration and make it more likely that you'll communicate your enthusiasm and expertise if your paper is something you are proud of and addresses an issue close to your heart. 

Callbacks: The Job Talk Presentation

As for the presentation itself, it is typically divided into two components: your presentation of the paper, and questions and comments from those in attendance. In my experience, the division between these components is pretty strict and you won't often get questions during the presentation itself, but it sometimes happens. 

The presentation itself shouldn't last more than 30 minutes, and should probably be closer to 20 minutes. This won't seem like a long time for the presenter, but 30 minutes is a long time for an audience member--particularly if the subject matter is in an area beyond their expertise. I made it a habit to ask whoever brought me to the job talk room how much was typical of presentations, and I'd try to tailor my presentation based on what they told me. Even if you're keeping the presentation to a fairly short time frame, you should still give a thorough account of your paper's argument so that attendees who have not read the paper will be aware of what you are arguing.

The Q&A session of the presentation will test your ability to interact professionally with those in attendance and to think on your feet. Attendees will be looking to how presenters handle questions out of left field and whether they can work with pushback in a firm, but non-adversarial manner. Keeping in mind that a job talk serves to evaluate your teaching ability is a good technique for maintaining the appropriate tone of clarity and firmness, while avoiding overly defensive responses. 

While it's important to be deferential and welcome feedback and suggestions, be careful not to be overly enthusiastic or phony. And when a question is truly out of left field, do what you can to engage with it, but have fallback language ready along the lines of, "that's an interesting point that I haven't considered. While my initial thoughts are [give it your best shot], I'd need to look more into the literature on that topic."

Preparing for the Job Talk

If you're in a visiting position or fellowship that gives you opportunities to present or workshop your papers, take these opportunities! These workshops will mirror what you're likely to expect at job talks and will be great preparation. When possible, I find it helpful to ask attendees or organizers to be particularly tough in their questioning and to provide feedback on the overall performance and what might be improved.

While some visiting positions and fellowships go out of their way to give participants the opportunity to present their work, others may not. This is particularly true of visiting teaching positions that focus primarily on filling a teaching post. Those who are going on the market from these positions may need to be a bit more proactive in seeking out preparation opportunities. I've listed possible strategies below, but this is far from an exhaustive list.

• If you are in a visiting position that focuses primarily on teaching, see if the school's research dean / dean of intellectual life / other equivalent position would be willing to let you present at an internal faculty workshop. I've found that these deans can be quite accommodating with setting the workshop earlier in the fall semester if one is preparing to go on the market.
• Speak with colleagues about holding a mock job talk (or several). Even if your school doesn't hold workshops (or cannot schedule them in time), you will likely be able to find at least a few others who are willing to listen to your presentation, act as questioners, and give you candid feedback on your performance. This may be an option for those applying to academia from nonacademic positions as well--while you may need to provide a bit more guidance on what sort of questions or feedback you are looking for, the questions that nonacademic colleagues ask probably won't be far off from questions you'll get from faculty who aren't experts in the field you're presenting on.
• Speak with your alma mater about arranging practice interviews and job talks. For me, this was probably the most helpful step I took in preparing for callback interviews. I got in touch with one of my professors who put me in touch with people at the school who had taken on the role of advising alumni interested in seeking academic positions. This, in turn, led to a practice job talk that was by far the toughest of any of the presentations I gave over the course of the job search. Your school wants to see you succeed, so reach out either to a former professor or the career office to see what resources are available!
• For all of these, don't be afraid to urge those participating in the workshops or practice job talks to take on particular roles that will be more helpful. I found tougher questions to be better preparation. You may also want to ask that participants drill down on certain areas that you think are most vulnerable. Work with others to make your preparation as effective as possible.
• If you are in a fellowship or visiting position with a law school, ask to sit in on job talks that your institution is holding for applicants. This can be a great opportunity to see what works and what doesn't.

As stated above, much of this advice is based on my own experience and what I've been able to pick up from others. Ask around with colleagues and contacts at other institutions to gather a variety of advice! There's a lot to the callback interview, and the more you know and the more tips you get, the better positioned you will be to succeed at this stage.

Resources

https://nrgondwe.com/2023/08/02/the-legal-academic-job-market-5-tips-for-screening-interview-and-job-talk-prep/

How to Give an Academic Talk: https://pne.people.si.umich.edu/PDF/howtotalk.pdf 

This thread from Dan Epps contains some good job talk and callback interview advice.

Long Live U.S. News

Brian Frye has posted a recent essay entitled, "The Gray Lady's Guide to Legal Education." Here's the abstract:

For better or worse, the U.S. News & World Report law school ranking has dominated legal education for decades, by giving prospective law students information about the relative prestige of law schools. But in recent years, it has become largely irrelevant, as prospective law students have begun to look elsewhere when deciding which law school to attend. Apparently, we need a new law school ranking to provide useful information about prestige. This essay provides such a ranking.

Frye briefly summarizes the history of the U.S. News rankings, their trend toward fluctuation, and growing irrelevance. Sophisticated readers will find much to enjoy in this discussion.

Like all good attorneys (and a few law professors), Frye doesn't stop with identifying a problem. He also presents a solution: rank law schools using the "NYT ranking" instead. What does this mean?

The methodology of the NYT ranking is simple, but elegant. I created a list of 196 United States law schools by copying it from the U.S. News & World Report “Best Law Schools” 2024 ranking. I then searched for the official name of each law school in the New York Times archive and recorded how many times the law school had been mentioned by name in the past 12 months. I then ranked all 196 law schools according to the number of times they were mentioned by the New York Times in the last 12 months. The law school with the highest number of mentions was ranked number one, the law schools with no mentions were ranked last, and the rest of the law schools came in between.

Frye goes on to address and dismiss potential objections and concerns with the method--including worries over typos (won't happen / if so, disrespectful), bad publicity (doesn't exist), and regional bias (the NYT is Everyone's Paper). Plus, Frye notes the comparative benefits of the NYT ranking, as it is "much funnier than other law school ranking methodologies." Count me convinced!

But Frye goes even further, comparing his present project to the task of "writ[ing] the New York Times obituary for the U.S. News law school rankings." Frye concludes that U.S. News "must cede the vessel to another"--the New York Times.

Here, I think, Frye goes too far (something he's never done before).

Frye's "Conclusion" section is followed by a further section (which Frye should probably label an "Appendix" if he wants to appeal to the fancier publications), entitled "The New York Times 'Best Law Schools' 2024 Rankings." Here, Frye lays out the New York Times rankings for all to see. 

In doing so, though, Frye reveals that a ranking system is an idea that must ultimately be expressed in some visual form--typically a list. And in laying out the list for readers, one faces the question: how to display those schools that end up tying in the rankings? In the list, one school must still come first, and one must come last. As the overall list corresponds to the ranking system, a physically higher placement among tied entries leads to the appearance of more prestige, even if this prestige is simply illusory. But for readers in a busy world increasingly dominated by images, video, and charts rather than dense text, illusory prestige is the coin of the realm.

As it turns out, ties pervade the NYT rankings. Five schools are tied in 18th place, eight in 24th, 10(?) in 32nd, 17 in 42nd, 44 at 59th, and 94(!) at 103rd. This leaves a lot of schools to list, despite having the same ranking.

And how does the New York Times rankings proceed to list these tied entries? By resorting to the very thing this list was supposed to replace--if not actively destroy: the U.S. News Rankings of each of the tied institutions.

One could have resorted to all manner of alternate ordering mechanisms. Perhaps list tied schools in alphabetical order--resulting in dramatic movement for schools like Ave Maria and Appalachian School of Law. Perhaps use Excel's random-number function to change the ordering each year, giving Microsoft a well-deserved, outsized influence in law schools' prestige appearances. Perhaps one can write the names of law schools onto a set of uniform balls that are deposited in a box and drawn out by lot.

But by listing tied schools in order of their U.S. News rankings, the NYT ranking list perpetuates that which it was meant to replace, as schools with higher U.S. News rankings appear higher--sometimes much higher--on the list than their purportedly equally ranked counterparts. The result is a blow to the appearance of prestige that corresponds to U.S. News rankings, bringing us back to a situation not unlike the status quo. The U.S. News rankings are dead. Long live U.S. News.

To be sure, there are plenty of fixes for those who wish to see U.S. News truly buried. I've listed a few above--though one must not count out the addition of a secondary set of tie-breaking newspaper references to add onto New York Times references. I think the San Antonio Express News is a good choice, as it adds geographic and political diversity to the list.

Law Review Submissions: Editors' Perspectives, Ideal Articles, and the Summer Submission Cycle

It's that time of the year: Scholastica has released their "Advice from Outgoing Law Review Editors" post, featuring thoughts and feedback from law review editors on submission criteria and strategy, as well as the state and future of legal scholarship.

Much earlier in the year, the chief articles editors* of the Harvard Law Review, Yale Law Journal, and Stanford Law review held an online presentation addressing similar points, including issues of article length, timing of submissions, and peer review procedures.

Below are some thoughts and reactions to the post and the presentation--with particular attention to points that I found surprising and illuminating. 

*A note: my notes from the Harvard/Yale/Stanford call (which took place in January 2024) do not include the names or exact titles of the editors who were speaking, although it's my recollection that they were all the chief articles editors (or that equivalent role) at the respective journals. To the extent that I refer to the "editors" at these journals, I'm referring to those participants on the call.

Law Review Submissions: The Basics

Some advice from law review editors on ideal submissions should go without saying. A number of comments in Scholastica's survey of editors reflect the desire that authors substantially research, revise, and footnote their pieces before submitting them.

This appears to be of particular concern for smaller journals with limited editorial staffing. One anonymous editor in the Scholastica survey noted that these journals "giv[e] weight to whether or not the article needs significant or challenging changes before publication outside the normal scope of editing." Another editor notes the importance of proper citation to "help ensure a smooth editing process."

What about article length? Law professors (and others) love to lament the length of law review articles, critiquing their overall length, over-attention to background materials, and extensive footnoting. Nearly two decades ago, a number of high-profile journals issued a joint statement that persists to this day acknowledging concerns over the length of law review articles and suggesting that "[t]he vast majority of law review articles can effectively convey their arguments within the range of 40-70 law review pages." While I agree this is true, I have doubts over law reviews' and authors' efforts to achieve this ideal, as lengthy articles continue to pervade law journals at all levels (though I do think that there's been some improvement over the past few decades).

Unfortunately, the Scholastica survey is relatively quiet on the subject. Last year's survey also didn't have much to contribute on the issue of length, though one anonymous editor predicted that "submissions and published articles will continue to shorten in length." I applaud the optimism!

When asked how long articles should be, the editors at Harvard, Yale, and Stanford gave some numbers--though much remained waffly. Yale's editor said that they look for articles that are around 25,000 words, including footnotes. This is decidedly less helpful than a suggested range for articles, although this same editor noted that they may take "Essays" of around 15,000 words. Stanford's editor suggested a range of 20,000-30,000 words, with a cap of around 30,000 words, although she made room for the possibility of going lower than 20,000. Harvard's editor threw out a 30,000 word figure, though she noted it was not a strict cutoff. Longer lengths would count against the probability of acceptance. Given Harvard's selectivity, one would think that such a negative weight would spell doom for an article. But a quick (admittedly limited) check of the one article in the HLR's most recent issue suggests that the editors are perfectly willing to go well beyond the 30,000 word mark. 

Letterhead Bias and Anonymity

Interestingly, none of the editors Scholastica surveyed mentioned anonymous submission practices. One editor in the 2023 survey did predict that "more law reviews will move towards anonymized submissions."

Concerns over letterhead bias--that is, editors' tendency to more heavily weight submissions from authors employed by, or who have graduated from, elite institutions--do seem to be on at least some editors' minds. One of the recent respondents urged that articles be selected "for their quality rather than based on the perceived prestige of the author." One hopes that editors generally strive for this, but without anonymous submission procedures, this ideal remains largely a matter of hope and faith.

Yale, Harvard, and Stanford incorporate anonymity to at least some degree. All of these journals' initial reviewers read the piece without any information regarding the author. Things get a little fuzzier, however, when it comes to the "peer review" process that these journals employ. Harvard's editor stated that faculty review of submissions is double-blind. Yale's editor stated that while its reviewers remain blind to the author of the piece, their chief articles editor is aware of the author's identity at that stage of review.

I'm on record calling for more anonymity in journals' review process. I think that concerns over circumventing anonymous submissions are overstated, and that more anonymity would go a long way to combat letterhead bias. Several elite journals appear to share this stance, and I hope that more continue to follow suit.

Grabbing Attention

Those who author legal scholarship love to tell their readers how important their articles are. Noah Chauvin details and critiques authors' obsession with telling their readers how their work fills a gap in the literature. Other calling cards for this technique include claims that an area of law is "undertheorized," or that an article is "the first" to ever broach a subject.

While exaggerated claims of novelty are easy to criticize, they exist for a reason. One editor responding to this year's Scholastica survey emphasized authors' need to detail their contribution:

Provide a detailed abstract that includes your thesis and how this paper will add to the literature or field. Often, the value of the article isn’t immediately apparent. If the reviewers aren’t familiar with the field, they might overlook something innovative or conclude that it isn’t novel.

This remark highlights editors' continuing use of the novelty benchmark in assessing the value of scholarship. It also urges authors to continue to place their assertions of gap-filling and trailblazing at the top of their work. 

The Yale/Harvard/Stanford editors didn't have much to say on the subject of novelty, although my notes reflect that Yale's editor indicated that novelty (along with staying power and a secret, third thing that I couldn't write down in time) was one of the primary things they look for in a submission. If you are writing in a novel or creative format, you'd do better to submit this as an essay (although, remember, you'll still have up to 15,000 words to devote to the project!)

Submissions and Expedites

Those who first learn about the law review submission process often come away with the impression that the system is bonkers. And that's because it is. Authors submit articles to the Scholastica website (along with a CV and cover letter), and then submit to dozens of journals all at once. Each submission costs money--an amount that seems to creep up each year. Most (but not all) schools provide unlimited funding to authors, which indirectly incentivizes mass submissions to dozens (if not hundreds) of journals for each piece. Law reviews become inundated with these submissions and Scholastica gets rich.

Journals eventually make offers to publish submissions, which often come with a time limit. The authors then notify all other journals in which they'd rather publish that they've received that offer, and that these other journals have until that other journal's deadline to make their own decisions on whether to publish the piece. This is known as "expediting" an article, and authors use it to "trade-up" their article into as prestigious a placement as possible.

This system isn't without its critics. Anthony Kreis has a succinct takedown of the process, arguing that the expedite process exploits the labor of those in less-prestigious journals who end up serving as an initial round of review for higher-ranked journals. Due to the volume of submissions that journals tend to receive, I suspect that many high-ranking journals effectively require expedite notifications as a prerequisite for initial review. 

The editors at Harvard, Yale, and Stanford had little to say on the subject of expediting. And why would they? They have little to worry about when making offers to authors. When one is at the top of the law review pecking order, where else will an author hope to place upon receiving such an offer?

But other editors don't have it so easy. One editor, responding to Scholastica's survey, took a pretty dismal view of the future of law review submissions:

People have preconceived notions of which journals are prestigious or will provide the best editing.

With the fall of the rankings, I am seeing smaller schools do more to get on the map and be seen as reputable and competitive institutions. But unfortunately, I think the way the submission cycles work, with people “gaming” offers, smaller schools will get left behind. They will spend their time reviewing submissions from authors who submit to every journal available. Or the submissions received will not be high enough quality, which can start a vicious cycle of poor articles year after year, leading to the journal’s demise. The submission cycle favors the traditional, elite, and robust.

Another editor has thoughts on how to improve this state of affairs:

I think legal scholarship would ultimately benefit if a cap were imposed on the number of law reviews to which an author could submit a single article. This would eliminate the gamesmanship that authors sometimes engage in that involves submitting to as many journals as possible and using existing offers in an attempt to procure an offer to publish with a higher-ranked journal. Under a system with a cap, journals would waste far less time reviewing hundreds of articles and be able to more efficiently and thoroughly review articles where the authors are truly interested in publishing with that law review.

Authors face a variety of pressures on where to place. For those hoping to break into a career in academia, publishing in prestigious outlets can make the difference in landing a job. Those lucky enough to get onto the tenure track may then have incentives to published in more highly ranked journals--whether doing so is related to grant/bonus/reward payment schemes, or whether doing so is tied to tenure requirements. These incentive structures play a role in contributing to the phenomena of mass submissions and expediting and shouldn't be left out when one is criticizing these tactics.

Other pressures, though, are more illusory. Ezra Rosser describes "[t]he never-ending pursuit of the gold star," that frequently becomes an obsession for law professors. The "intangible quality of 'being or seeming smart'" motivates law professors to write on ephemeral matters of high theory, and to seek out prestige when publishing. This desire to continue attaining the highest placement possible--even after one has a job, tenure, and all manner of lovely titles, may drive many law professors to continue playing the expedite game long after it is of any true use to their career and prestige. 

To be sure, placement prestige does play a role. Readers may give more weight to articles that place more highly. Placements in high-ranking law reviews may garner more citations. 

But authors shouldn't forget that this pursuit of constant validation impacts law students' lives. Editors who put their time into reviewing a piece, only to have it snapped up by a higher-ranking journal, have sunk their time and energy into a lost cause. This becomes all the more concerning when authors submit to journals without the intention of ever actually publishing--instead hoping to game any acceptances into successful expedites, or to leave the piece unpublished until a later submission cycle. This latter practice, I propose, is something that all authors should take great efforts to avoid.

The Summer Cycle

Sorry--back off my soapbox. Law review submissions revolve around two primary "seasons" or "cycles." There's the spring submission season which starts near the beginning of February, and the summer submission season which starts in August. The general wisdom is that the spring submission cycle is preferable because this is the time of year when editorial boards are beginning to fill their volume. In summer, on the other hand, editors are trying to fill what slots remain--which may mean that there are only a few potential openings for new articles compared with the comparatively unlimited potential of the spring cycle. Because of this, the advice you'll typically hear is to publish in the spring whenever possible, and to avoid the comparatively tough summer cycle.

I've tended to take this advice with a grain of salt, as I've submitted and published most of my work during the summer cycle. I typically do so out of a combination of reasons--summer is when I have the most time to write, a fair amount of what I write on tends to be time-sensitive, and I'd rather move onto new projects than to build up a glut of unsubmitted work. This experience leads me to encourage people not to sleep on the summer submission cycle.

But what I heard earlier this year from the Harvard/Yale/Stanford editors may cause me to rethink my way of doing things.

All of these journals assured the audience that they accept pieces submitted during the summer. Harvard claims to have a year-round submission cycle. And yet the Harvard editor stated that for their last issue, they accepted seven articles in the spring and three in the fall. Yale's editor stated that they always leave the summer open, noting that they accepted two (2) submissions during the prior summer cycle. And Stanford's editor stated that they want authors to have a "substantial opportunity" to publish in the summer, noting that their prior volume consisted of ten pieces submitted in the spring, and four submitted in the summer.

While all of these editors asserted that this information demonstrated the utility of submitting in the summer, my takeaway was that the critics of the summer submission season were right--at least with regard to these journals. Getting placed at journals like these is difficult enough in the aggregate, and doing so in a season where one's prospects are placing only two to four articles for the overall volume leaves one with dismal prospects of success. To be sure, these are only three journals--and their prestige gives them the pick of the submissions universe. But perhaps there is something to waiting till the spring, if possible, to submit pieces to law reviews if this disparity is more widespread.

Artificial Intelligence?!

Here's a note from an anonymous editor in the Scholastica survey that raised at least one professor's concern:

It appears that there have been a lot more theoretical/social science and law crossovers lately. I predict that there will also be a significant increase in AI articles, given the number of symposiums that are talking about AI. I’m sure that selecting articles will no doubt use the same technology that we are discussing in our articles to also assist in choosing articles.

The notable portion of this quotation is the un-bolded text of the last sentence, which suggests that editors who select articles for publication will use AI technology "to also assist in choosing articles." What might this mean? Is it not enough that generative AI is going to end the world--or worse: render attorneys obsolete? Will our technological overlords also begin making the publication decisions that determine the trajectory of my and my colleagues' careers?

I'm not sure I'm all that concerned by the remark as some other authors might be--primarily because I don't think it's a fully enough formed idea to pose a discernable threat (or promise?) of substantial change to the way things work. Perhaps there is something to be said about running preemption checks using technology--and maybe AI will play a role in the process (though I suspect that the technology at issue here would more likely resemble existing search algorithms rather than the language models powering technology like ChatGPT). Indeed, when we start thinking of the varieties of technologies that exist under the "AI" umbrella, one might begin to see just how broad a notion editorial use of AI might be.

Law Review "Policies"

A theme I notice--particularly in thinking over the remarks of the Harvard/Yale/Stanford editors is the distance between written policies and how these policies work out in practice.

The Harvard Law Review, for example, claims to review submissions year-round. Yet the Harvard editor repeatedly made remarks about following submission cycles--at one point noting that they accepted seven submissions in the preceding spring cycle, and three in the summer. To me, this sounds like a journal that--like the others--follows the submission cycles. To be sure, this may result from submission patterns rather than the journal's own review procedures. But if this is the case and Harvard's review practices end up mirroring the summer and spring submission cycles, I wonder how much it means for Harvard to claim to review submissions year round.

There are other examples of discrepancies between policies and practices. Overly long articles are less likely to be accepted--except for the ones that are indeed accepted and published. The journals strive to maintain robust summer submission cycles--sometimes publishing two, even four!, articles submitted in the summer months. We accept "essays" that are around 15,000 words in length (Yale); or we accept essays (well--maybe 1-2 per year) (Harvard).

Perhaps this is an effort to educate authors who lack practice experience to how the theory and letter of the law breaks down in practice. A legal safeguard or requirement that is clear as day in the statute books can be of little use in a crowded courtroom where the judge has their own view of the law and the client lacks the funds to appeal. Law journals' willingness to bend or break their stated rules offer legal academics a taste of this all-too-frequent frustration practitioners face.

Section Three, Originalism, and Interpretive Alternatives

William Baude and Michael Stokes Paulsen have written a recent article, "The Sweep and Force of Section Three," in which they argue that Section Three of the Fourteenth Amendment is a self-executing provision that renders Donald Trump ineligible for the presidency as a result of his role in attempting to overthrow the results of the 2020 election.

The article has been the talk of both legal academia and the wider public in recent weeks, drawing a great deal of attention and drawing support and criticism from various scholars and commentators. While this post adds to the commentary, let me emphasize at the outset that I do not dig into the weeds of the historical claims or evidence that Baude and Paulsen amass. Indeed, this post isn't so much a response to the article, but instead derives primarily from how Baude and Paulsen have described and defended their claims in follow-up discussions (particularly in recent episodes of "Amarica's Constitution," which Baude highlights here), and have only reviewed portions of the article that get into the interpretive issues I focus on here.

This was initially meant to be a response to a brief comment Michael Ramsey's post at The Originalism Blog, which highlighted some recent coverage of Baude and Paulsen's article. Ramsey closes his post with this comment:

There's a lot of originalism in these debates and in commentary on the Section 3 issues generally. It's worth noting that the nonoriginalist alternative is that judges decide whether Trump should be disqualified based on their intuitive assessment of what's best in light of modern needs and circumstances.

This characterization of the options for interpreting Section Three is an oversimplification. And it's an oversimplification worth highlighting because of its frequent occurrence in debates between originalists and nonoriginalists--including in Baude and Paulsen's defense of their claims against certain critiques.

Contrary to Ramsey's claim, there are a number of nonoriginalist means by which one may interpret Section Three before resorting to mere intuitive assessments. A judge might interpret the text by reference to its present meaning and understanding, as well as how it fits in with the structure of the Fourteenth Amendment and the rest of the Constitution, without looking to the historical debates over the Fourteenth Amendment's meaning and place in the Constitution. Alternatively, a judge may look to how Section Three has been interpreted in subsequent cases and rely on meaning developed over time through common law reasoning to determine how that language should be applied in a present case. And while "intuitive assessment" of modern needs suggests little more than going with one's gut, or shooting from the hip based on initial impressions, considerations of modern needs and circumstances--albeit through thorough consideration of consequences and careful reasoning--may also play a role, as those espousing pragmatist theories of interpretation argue at length.

And even the method that Ramsey highlights is one worth noting. As concerning as "intuitive assessment" might sound, considering modern needs and circumstances probably ought to play at least some role in the decisionmaking process--even if those considerations factor in on a level beyond interpretation. Even if there's a strong originalist argument in favor of disqualification, one shouldn't lose sight of the broader context. Indeed, another originalist, Michael McConnell, urges a narrow reading of Section Three out of concern for the consequences of a broad reading:

Putting together my friends' broad definitions of "insurrection" and "engage," and lack of concern about enforcement procedure, I worry that this approach could empower partisans to seek disqualification every time a politician supports or speaks in support of the objectives of a political riot. Imagine how bad actors will use this theory. If that is what Section 3 necessarily means, we have to live with it. But in my opinion, we should seek the narrowest, most precise, least susceptible to abuse, definition that is consistent with history and precedent. In the absence of actual engagement in actual insurrection, judged as such by competent authorities, we should allow the American people to vote for the candidates of their choice.

Baude and Paulsen respond by arguing that this is an inappropriate way to interpret the Constitution (both in the initial link and in this second episode as well). They argue that concerns over misapplication of a particular interpretation do not invalidate the criticized interpretation, and analogize McConnell's concerns over consequences to a judge's first selecting a preferred result and then structuring an interpretive method that ensures the result. Instead, they argue, one should engage in principled interpretation to figure out what the Constitution truly means, and follow that meaning from there, even if it might lead to unexpected or undesirable consequences.

Baude and Paulsen take this position in their article as well. Here's an example of this point from their article, in which they critique Chief Justice (or, in this case, Circuit Justice) Chase's opinion in In re Griffin:

Chase’s construe-to-avoid-the-force-of-constitutional-language-whose-policy-consequences-you-dislike approach to constitutional interpretation is simply wrong. Judges do not get to rewrite constitutional provisions they find objectionable on policy grounds. Relatedly, judges do not get to make up new provisions of law in order to devise policy “solutions” to texts they don’t like. Chase’s opinion imposed, as a solution to textual literalism and its real and imagined policy inconveniences, a different kind of constitutional provision, one more like the Impeachment Clause and the Treason Clause. Put bluntly, Chase made up law that was not there in order to change law that was there but that he did not like. (p. 40)

As Baude and Paulsen advance this argument--both in the excerpt above, and in responding to McConnell's critique--they tend to treat concern over consequences as something distinct from a theory of interpretation. This, at least, is the impression I get when they claim to be following the Constitution's meaning wherever it will lead, rather than letting consequences dictate how the Constitution ought to be given effect. In particular, they argue that originalist interpretation--looking to the original public meaning of the Constitution--is the way to go, and pragmatic considerations are something other than interpretation entirely. Ramsey's characterization of "intuitive assessments" of modern needs suggests this as well--this isn't "interpretation," it's "intuition."

As foreshadowed above, all of builds from the assumption that originalism is the way to interpret the Constitution. If this is the case, than consideration of consequences does indeed seem to go beyond the interpretive process and lead to false conclusions. But as discussed earlier, this is not the case. It isn't originalism or nothing. And it isn't originalism or "intuition." Rather, there are multiple potential approaches to choose from. And, as it turns out, judges often employ multiple approaches, both across cases and within cases, when interpreting the Constitution--a method broadly labeled as "pluralist" interpretation. Baude and Paulsen seem to avoid this underlying debate over methodology, asserting an originalist approach from the outset and proceeding from there. (see, e.g., pp. 8-9). But the possibilities of alternate methodologies should at least qualify assertions that considerations beyond original meaning are "simply wrong."

One might object to my highlighting debate over alternate theories of constitutional interpretation by arguing that the majority of Supreme Court Justices are originalists, and that it therefore makes sense to take as given that the Court will employ an originalist method in interpreting Section Three (should the issue make its way to them). Paulsen, at least, seems to express such a view in his first interview with Amar, going so far as to suggest that the Court may side 9-0 in favor of Trump's in eligibility (with the originalist justices following the article, and the three liberal justices taking an approach more in line with Ramsey's "intuitive assessment" approach). 

I'm not as convinced. The Court's approach to originalism tends to be inconsistent at best, including in recent cases that many commentators mistakenly describe as originalist decisions. I suspect that some of the more conservative justices may be at least tempted to give in to political leanings. I also suspect that these leanings may join in a coalition with institutional concerns that prompt the Court to avoid ruling that Trump is disqualified out of a fear of political backlash. All of this should give pause to assumptions that the Court will embrace interpretive principles above politics.

But say we set aside the meta-theoretical debate and accept an originalist approach to interpretation. Even then, consequences of that method still may play a role in the overall interpretive process. Considerations beyond the text frequently play a role in interpretation when the text to be interpreted is broad, undefined, or otherwise capable of multiple meanings. In choosing how to give effect to that text--say, in selecting one of multiple potential meanings, including original meanings--judges may opt for an interpretation that has better consequences or, if the case involves invalidating a law, leaving the law in place out of deference to the democratic process. 

We can make the description of the process a bit more precise by distinguishing between linguistic meaning and legal meaning. Lawrence Solum does so in distinguishing the initial step of "interpretation" (deriving the linguistic meaning of a provision) from "construction" (giving legal effect to that meaning). Perhaps Baude and Paulsen have a stronger argument that consequences don't play a role in that first step of interpretation. But even then, I'm not sure if this is right, or if it matters. The possibility remains that a theory of interpretation (that does not account for consequences) may lead to multiple meanings, including broader and narrower interpretations in the Section Three context. Sure, we may be able to narrow things down to a smaller range of potential meanings using interpretation. But the entire debate may still center around which of those meanings ought to be accepted by actors tasked with putting interpretation into effect.

And that's the debate that Baude and Paulsen have chosen to enter. For one, their argument quoted above critiques how Chase "construe[d]" Section Three--strongly suggesting they're talking about how the language is constructed. But more fundamentally, they cannot simply dismiss the process in which semantic meaning translates to legal action through government action (whether by state secretaries of states or judges). After all, they've written an article that expresses conclusions regarding what Section Three requires of modern actors, and they therefore must take all considerations into account--both at the initial stage of determining the meaning of words on a page, to the next stage of how those meanings ought to be put into effect by legal actors.

I suspect the response to this is that the original semantic meaning of Section Three is so determinate (or, "thick,") that there's no need for construction. As noted at the outset, I'm not here to argue against Baude and Paulsen on their historical points, and they've done a great deal of legwork to set forth their argument. In making this argument, I assume that Baude and Paulsen have done a thorough job of canvassing the history, amassing the argument, and providing support for their conclusions.

Even so, proving a semantic meaning that is so thick that consequentialist arguments may simply be swept beside is a tall order. Remember, construction may be required where there are multiple potential original meanings. These multiple meanings may result from the inquiry originalism requires, which involves surveying a wide range of detailed, sometimes contradictory historical accounts. It may not be certain what the original meaning was from such an investigation. Alternatively, multiple meanings may be what the interpretive inquiry turns up. A thorough examination of the historical evidence may reveal that, at the time of ratification, people held different beliefs about the meaning of Section Three. 

To be sure, one may decide to go with what appears to be the most common meaning, or to avoid meanings that only seemed to exist in certain camps (say, critics of the Fourteenth Amendment, or only people with certain expertise). But this move of selecting between alternate meanings is itself a form of construction. And the question then becomes: why allow this form of construction, while dismissing alternative forms of construction that take into account the consequences of one interpretation over another?

Baude and Paulsen must address this question as critics continue to raise concerns over the practical implications of their arguments. Thus far, their move seems to be to distinguish their interpretive arguments from consequential considerations--considerations that they claim are irrelevant to the core interpretive inquiry. The discussion above, though, suggests why this may not be the case even if Baude and Paulsen have made a strong originalist showing.

As a final note in this already lengthy post, I do not rule out the possibility of other interpretive methods reaching the same conclusion as Baude and Paulsen. McConnell raises consequentialist concerns in one direction, but the consequences of a minimal reading of Section Three in the face of such flagrant misconduct by Trump may undermine fundamental qualifications for office in the short and long term that may outweigh potential abuse of the provision. And interpretive methods beyond originalism or pragmatism may also get to the same result. I confess that my political preferences align me with Baude and Paulsen's conclusions about disqualification, as I think that Trump's conduct is reprehensible and should dissuade any reasonable voter from supporting him. But it's still worth delving into the assumptions underlying the constitutional interpretation dimension of the debate, even if doing so might cast doubt on conclusions I find agreeable.

Going on the Academic Job Market - Part Three: The Initial Interview

This is the third post in a series describing my experience going on the legal academic job market in 2022 and some pieces of advice I have for new applicants--particularly those like me without a traditional background. My first post discussed the initial leap into a fellowship or visiting position, and my second discussed the Faculty Appointments Register (FAR) process and materials. This post addresses the initial interview phase of the process.

Initial Interviews: The Basics

It's my understanding that back in the day, applicants and law school representatives from around the country would convene in a hotel in Washington DC (which I believe has now been demolished?) for several days. There, they would undergo a hectic series of screening interviews with the hope they'd make a good enough impression to get invited for a callback interview at a later date.

That's not how things work today. Once the FAR materials and direct applications are out, it's up to the schools to reach out and request screening interviews. In my experience, these were all done virtually via Zoom (or maybe Microsoft Teams in one or two cases). I received initial interview invites from a mix of schools to which I'd sent direct applications, and others who'd found my materials in the FAR distribution. Several schools to which I hadn't applied invited me to submit an application, after which they would often extend an interview invite as well. As I mentioned in my last post, the most substantive parts of these application concerned documents like research agendas, teaching philosophies, and DEI statements, most of which ought to be completed before the first FAR distribution.

One benefit of remote initial interviews is the flexible scheduling. For me, I was able to schedule interviews into my day before or after class, and even when I was laid low by COVID-19 in mid-September, I was still able to do interviews from home (although I may not have given my best performance in those instances). Some of these interviews were scheduled on the weekend, which made them even less of a conflict with my classes, meetings, and other work.

But a major downside of remote screening interviews is that they take place over a long time period which, in turn, leads to schools sometimes pursuing drastically different hiring schedules which may complicate the timing of offers and acceptances down the road. I suspect that this was still an issue with the old system, as schools were left to their own devices in scheduling callbacks. But when you're doing a screening interview for one school a day or two after a callback at another school, you know that all semblances of scheduling uniformity have gone out the window. In the end, things still worked out, as I found that all of my offers synched up at around the same time. But keep this in mind as you go through the process and see if you can schedule interviews--especially callback interviews--closer together in light of the scheduling disparities that will arise.

I've also heard a few anecdotes that remote screening interviews have led some schools to hold far more initial interviews than they may have normally done otherwise. The flexible scheduling options, plus the fact that committee members need not all be in the same place, makes it easier for the committee to schedule dozens of screening interviews. This, in turn, gives them more applicants to choose from at the callback stage. Some downsides of this, however, include a potential devaluing of the screening interview itself (due to the sheer volume of interviews a school may hold), as well as a more difficult process for selecting callback applicants. Additionally, a high volume of initial interviews may make the process less predictable for applicants, as there's a lower probability of securing a callback when an applicant is one of forty interviewees rather than one of twenty.

My earliest screening interviews began in early/mid September, and went on through at least late October or early November (I've switched computer systems since moving to a new school, and I don't have my precise calendar records available). I heard anecdotes, however, of screening interviews starting as early as August.

As for the interviews themselves, they tended to last for 20-30 minutes. Those limits were fairly strict, as I was one of numerous candidates being interviewed in succession, and falling behind with one person risked cascading delays for other applicants. The setup of the interviews varied. Most typically, everyone on the Zoom call was in a separate location--often their own office. I liked this format because I could better see who was speaking and note questions and points in case I got invited to a callback and wanted to elaborate on specific discussions from the interview. Sometimes, though, the entire hiring committee would be in a single conference room, which could make it difficult to see who was saying what, particularly with the larger committees.

I dressed in a suit for each of these interviews (although I may have been wearing jeans for some of my weekend / at-home-COVID interviews). While the interviews were on Zoom, I've seen so many instances of fashion flubs during remote court proceedings that I tend to dress up all the way even when the interview is remote. The usual Zoom disclaimers apply: make sure you don't have anything odd in your background, try to look at your camera as much as possible, and remain upbeat and dynamic, since it's easy to lose energy or focus when you aren't in the room with the same person.

Common Questions in Screening Interviews

A hiring committee will likely conduct a large number of screening interviews in the earlier stages of the hiring process. The purpose of these interviews is to get a feel for each candidate, learn more about their motivations, and to parse out questions about their background, scholarship, and experience that may not be immediately discernable from their application materials. Because these interviews are often brief (usually between twenty and thirty minutes), and because committees tend to interview a large number of candidates, questions tend to be standardized. Below, I've listed common questions I got during the screening process, along with suggestions on how to go about answering them.

As a caveat: this is primarily informed by my own experience, and there's a possibility (indeed, a likelihood) that different approaches will work for you. Each applicant's motivations, experiences, and plans are unique. Additionally, there's a possibility that some of my answers were stinkers, and something else about me (my publications, my practical experience, or my haircut) won the day.

Why are you interested in becoming a law professor?

Applicants who've spent the bulk of their legal career on a path to academia will likely have no difficulty answering this question. But those who have spent more time practicing, and for whom a turn to academia represents a noteworthy shift in career, this may be a response where you can stand out. In my interviews, I noted my positive experiences in practice, but emphasized that academia had always been on my mind. Once I found enough balance to begin writing again in earnest, the thrill of delving into deeper puzzles, entering a higher-level scholarly conversation, and exploring areas of law of my choosing was simply too much to ignore. Being a law professor is one of the best jobs in the world, and you just need to translate this sentiment into something that sounds coherent and convincing.

Describe your research agenda.

Developing a solid, focused, and informative response to this question is worthwhile because it is something you can translate into a contextual introduction to a job talk presentation at later stages. In answering this question, I mixed examples of recent or ongoing projects with broader themes, often stating a broad issue I was exploring and backing it up with examples of an article or two I had written or planned to write to get to the heart of the issue. I think it's worth avoiding a laundry list of past and future articles, both because such an approach may cause your answer to become overly long, and because including abstraction suggests and open-endedness to your approach that promises indefinite possibilities.

Describe your approach to teaching.

I mentioned this in prior posts, but questions like these were challenging for me since I'd barely begun teaching classes before my first few screening interviews. I relied on examples from my minimal teaching experience so far, but the balance of my responses often addressed my goals for teaching, skills I planned to develop, and examples of good teaching that I sought to emulate. Again, a book like What the Best Law Teachers Do is quite helpful as it won't only provide endless suggestions to improve your own teaching, but provide you with examples of great teaching that you can seek to emulate and mention when asked.

Why [Our Location]?

This question may come up, especially if the applicant will be needing to make a long-distance move if they take the job. More often than not, the "real" answer is: "Because I'm willing to move wherever I need to go if it means a job," but avoid the temptation to say so! If there's something positive you can say about the location: it brings you closer to family or friends, you used to live there and so it's familiar territory, you currently live there and you've grown to like it--these are good answers. Another way of responding is to compare the new location's advantages to your present location. I ended up with a job in Texas--a state I'd never before visited. But my school is located in San Antonio and, when compared with Boise, Idaho, it's a lot bigger and a lot easier to travel to and from. I emphasized that this appealed to me, and even more so to my spouse, who is a professional cellist and therefore travels quite frequently.

Why [Our School]?

This is more of a catch-all version of some of the preceding questions, so strategies for those answers will come in handy here. If you can tie the school's location into your answer, this may be a good approach. But you should also consider aspects of the school that make it distinctive--preferably with regard to your teaching interests. Highlight the work of faculty in your areas of interest as something that appeals to you. If the law school has departments or has established centers in a particular area that intersects with your scholarship, bring that up. 

Questions to Ask the Interviewers

You may not always get a chance to ask your own questions of the interviewers because of the short time screening interviews take. But in my experience, I was given the opportunity to ask at least one or two questions of the interviewers in my screening interviews. To an extent, make sure you have some decent questions prepared so you aren't caught by surprise. Try to keep them somewhat interesting to avoid appearing uninterested. But also make sure you ask questions that will give you information you need, such as the professional vibe of the faculty, teaching dynamics, and institutional priorities.

The questions I'd ask were sometimes varied. A frequent one for me was to ask of those interviewers who'd previously taught at other schools what made this school stand out to them. This gave me a range of answers which tended to be useful. Answers that delved into specifics gave me more of an impression that the school had a distinct identity and that faculty were more invested and engaged. Answers that were overly generic led me to flag this as something to follow up with should the hiring process continue.

Another question I asked concerned the types of support the school provided to those starting off as teachers and scholars. Schools may have different approaches to supporting their faculty (e.g., differing budgets, varied flexibility for requests beyond what is typically provided, etc.) and the level of detail I'd get in response to these questions gave me insight into how the school prioritized developing faculty scholarship. The same held true for my questions about teaching support. While schools often have systems in place for supporting research and providing grants, some don't have much in the way of supervision or review of classroom teaching. Those that do stood out to me, particularly those with well-developed, detailed plans of observation and feedback designed to help professors become better teachers.

Next Steps?

If you have the chance, see if you can ask the interviewers for any details they can give you about their timeline. Some hiring committees will have little in the way of details, as the process may sometimes involve interim deliberations and decisions which may lead to an unpredictable schedule. But others will have fairly fixed timelines and may be able to tell you when to expect notification about a callback.

As for the callback interview, that will be the subject of the next post. But know for now that timing on callback notifications can vary widely depending on internal scheduling and applicant availability. I received notification of some callbacks shortly after my screening interview--I think the earliest notification came within a week. Most were within a few weeks. On the other end, I received an inquiry if I was still interested in pursuing a callback interview a couple months after my screening interview, at which point I'd already accepted an offer from a separate school.

Don't expect that you'll hear from every school with which you interview. Several notified me once their process had closed. But many simply never got back to me one way or the other. This is, I suspect, a likely result of schools holding numerous screening interviews now that the process is remote. To those reading who happen to be on hiring committees, an email to all applicants once the process has closed would be appreciated.

General Resources

If you are looking for the book-length version of the advice in theses posts, Yale Law School has an extensive guide for graduates seeking to enter the job market. For the person at the early stages of the process, page 91 of the guide is the beginning of a list of fellowships.

For those in a hurry, Yale Law School also provides pointers for those preparing job talk papers, CVs, scholarly agendas, and references--advice backed by the knowledge of some of the most effective job applicants in the biz--and therefore well worth reading to expand on my suggestions above.

Paul Caron publishes a yearly list of visiting assistant professorship and fellowship programs at law schools. I suspect that because many of these are ongoing programs rather than ad-hoc postings to fill teaching slots, they will likely provide more extensive opportunities for mentorship.

At PrawfsBlawg, Jessica Erickson has a helpful post breaking down the different types of fellowship and visiting assistant professorships. My first post in this series went into some detail regarding the different types of fellowships and the mentorship and support one might expect at each one. Erickson's post goes into far more detail and includes advice for applicants in how they might determine how a job posting fits into each fellowship category. PrawfsBlawg also has a category of blog post devoted to visiting positions and fellowships, including interviews with those in charge of some of these programs, which may be worth scrolling through.

While it's a bit of an older resource, Eric Goldman has this post on advice for those entering the teaching market. Even though he wrote it in 2005, much of the advice remains timeless, including his recommendation to practice a job talk before "friendly law professors" before doing it live, asking multiple professors for advice throughout the process, and noting the role luck plays in landing a job.

Sarah Lawsky's compilations of entry-level hiring information and hiring plans and committees are invaluable to those entering the job market. Her data relies on her own investigation and self-reporting and, while therefore incomplete, captures a lot of information regarding the layout of the job market and available positions. Follow her on Twitter, or look for her posts on Prawfsblawg to stay up to date.

Orin Kerr's podcast/video series, The Legal Academy, is a collection of interviews with various legal scholars with a consistent focus on the nature of legal academia and strategies for those seeking to enter academia. I especially recommend his interviews with Emma Kaufman and Sarah Lawsky.

The AALS--especially their information regarding the Faculty Appointments Register (FAR), which you will need to fill out if you are seriously considering going on the market. This is a centralized set of one-page summaries of applicants that gets sent out to all member schools. By registering and inputting your information, your information will be included in this distribution. I'll go into more detail on the process in a dedicated post, but make sure to register before the first distribution deadline (this year: August 11, 2023).

Brian Leiter provides great advice for people on the market in various places. At his Law School Reports Blog, his string of "Advice for Academic Job Seekers" posts are worth checking out--particularly his early 2023 post on considering and negotiating tenure-track job offers. At his Leiter Reports blog, he provides detailed advice for those considering joint JD/PhD programs--specifically for those interested in pursuing a PhD in philosophy.

I'm happy to chat with anyone interested in entering legal academia--especially those who may not be typical candidates. You can find my contact information on my faculty page.