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.

Going on the Academic Job Market - Part 2: The Faculty Appointments Register (FAR)

This is the second post in a series that details my experience going on the legal academic job market in Fall 2022 and pieces of advice I've derived from that experience. My first post is here, and went into strategy and considerations underlying the move to an initial teaching position such as a visiting assistant professorship or fellowship. As I mentioned there, this series of posts is aimed at applicants who may not be standard or traditional entry-level academic candidates. My target audience is folks who didn't go to one of the top law schools known for producing academics, those without prestigious clerkships, and those without PhDs or other advanced degrees. Folks like me!

This post focuses on the Faculty Appointments Register or "FAR," including the preparation of the FAR form and supporting documents. As with my last post, I'll describe my own experiences, along with strategies I used and advice I received while getting my materials together. Unlike the last post, there will be points of advice in each subsection relating to each document submitted in the FAR process. I then move on to a section that gives points of general advice derived from these experiences.

One disclaimer before getting into the weeds: my points of advice are based on my own experiences and are derived from advice I received from others throughout the application process. I do not consider myself an expert on the legal academic hiring process, and I do not have any inside information regarding the process. I write based on my experience, advice I've received, and information I've been able to track down in the hope of demystifying certain aspects of the process and sharing my perspective as a non-standard applicant. For those interested in advice from more experienced people and institutions, and updated list of general resources is included at the bottom of the post.

Preparing the FAR Form

Early on in getting my application materials together, I learned about the FAR. You can find basic information on it here, including crucial dates and deadlines if you are planning on submitting your information. In short, in exchange for the $290 registration fee, you fill out a form that includes your name, educational history, selected publications, clerkship experience, teaching/fellowship experience, and teaching interests. This is all transferred to a one-page form, which is then submitted to all law schools that subscribe to the FAR (the vast majority of all law schools). The schools then use these forms to narrow down applicant pools, and often contact applicants who they think meet their hiring needs for initial interviews.

With a process like this, it's therefore important to get that one-page form right, as it may be the primary (or only) document a hiring committee reviews in deciding whether to schedule an initial interview. But it's not the only thing the AALS circulates to participating schools. In addition to the one-page FAR form, your submission will likely also include a resume or curriculum vitae, a research agenda, a DEI statement, and a statement of teaching philosophy. I'll get to these other components of the application in a bit.

On the FAR, much of the information you input is standardized, but there are still a few areas where your discretion is important. One of the most important is your list of five "Preferred Subjects," where you list out in order of preference the subjects you are interested in teaching. There are many unwritten rules of strategy for the preferred subjects section, and I'll share here the ones I was told:

• Consider School Needs: Prioritize high-need topics on your list, such as subjects in the standard 1L courseload. Consistent needs include criminal law, civil procedure, contracts, and torts.
• Constitutional Law?: While I have a fair amount of scholarship on constitutional law and taught multiple constitutional law courses in my time at Idaho, I was told to de-prioritize constitutional law. One person told me that there is always a high supply of people willing to teach constitutional law, and not as high of a supply of constitutional law positions. Another was a bit more frank, staying that if you didn't go to Yale, Harvard, or Stanford, you shouldn't put constitutional law at the top of the list--it's simply to heady of a subject. I'm not sure how correct this advice was, but all offers I eventually received were for criminal law / criminal procedure teaching positions.
• Complementary Subjects: List subjects that complement one another. For instance, if you are interested in teaching criminal law, you should consider listing criminal procedure as well. There's a tradeoff here: you're sacrificing another one of your precious few five spots, rather than diversifying your subjects. But the advice I received suggested this tradeoff is worth it, as it's better to appear more invested in a particular area so as to lend credibility to your list of subjects. And while it may seem good strategy to list a diverse array of topics, doing so carries a risk of appearing unfocused. It is probably better to commit to one or two topic areas with a core list of subjects, rather than throwing everything at the wall.
• Have a Reason: Relatedly, you should list topics only if you can point to something that explains why the subject is on your list. This can include prior practical or teaching experience in the area, research into the subject, or some other explanation for why this subject was important enough to you to make the cut. My list, for example, included "Civil Procedure," alongside the criminal subjects of criminal law, criminal procedure, and evidence, as well as constitutional law. My reason for doing so? I'd been a litigator for over seven years before going on the market, and civil procedure was my life. In crafting your list of preferred subjects, keep school needs and success in mind, but don't let strategy lead you to paint an inauthentic picture of yourself.

Beyond the teaching preferences, you will also be asked to list your "Major Published Writings." The rule I've generally heard for the publications is to lead with the paper that will be your job talk piece, and follow it with a group of papers that are both solid placements and which evidence your interest in the subjects you are seeking to teach. I've heard scattered anecdotes that some hiring committees may give less value to coauthored pieces. If so, this is probably a practice they ought to reconsider, as there's value in coauthoring. Still, it's a good idea to have a job talk piece that is a solo-authored article, and you should probably include at least one other solo piece if you have the option. 

Another piece of advice I received was to include any other pieces you want listed in the "Comments" section of the FAR form, which is a good way of expanding your publication list if that is your strong suit. My publication list was fairly extensive for an entry level hire when I submitted the FAR, and I used the comments section for this purpose.

Finally, you are asked to include references on the FAR form. I received fairly uniform advice that these references should tend toward academic references--which may be a challenge for those who've been in practice for more than a few years. To that end, I reemphasize my earlier advice about maintaining connections with prior law professors, including reaching out to them for feedback on scholarship or early advice before going on the market. If this isn't feasible, this is all the more reason to find a visiting position prior to going on the market, as professors at that school may be willing to serve as references. Two professors at Idaho were willing to sit in on some of my early courses and serve as references as I went on the job market. Not only did they serve as references, they also gave me valuable early feedback on my teaching techniques.

The Job Talk Paper

As part of the application process, you will hopefully receive several callback interviews, in which schools invite you to campus for a daylong series of meetings, interviews, and tours. One of the key components of any callback is the job talk, in which an applicant presents a paper and fields questions and comments from an audience of law professors.

I'll have more to say about the job talk itself in later posts. But at the initial application stage, you are expected to submit what will end up being your job talk paper. This paper should match up with your list of preferred subjects on the FAR form. It should also be a well-polished, substantive article, as it will undergo the most scrutiny and be used to judge your scholarly potential. Additionally, the paper should be one you are comfortable living with for many months as you present it repeatedly.

The job talk paper is often unpublished, although I think it helps to have it accepted for publication by the time you are on the market. I say this because, especially for non-standard applicants, the offer of publication may be an indicator of quality or credibility for the piece. Timing is therefore important--for a paper to be at that key stage of accepted, yet unpublished, it may need to be submitted to the journals in August. This isn't a hard and fast rule: publication can take a while and I've had some articles accepted in the spring that don't get initial revisions back until well into the summer or fall. For those submitting a piece in the spring that they think may be a future job talk paper, you can work with the editors to see if they can delay the publication process to line up with your anticipated job search. 

For these reasons, you should keep in the back of your mind what project (or projects) have the potential of becoming a job talk paper down the road. Given the time it takes to research and write a solid article, the job talk paper may require the most advance planning and preparation of all of your application documents.

My job talk paper was Countermajoritarian Criminal Law, which I wrote in summer 2022 and submitted to journals that August. Of the articles I submitted that summer, this was the one article on criminal law that I'd written. Having listed my top teaching interests as criminal law and criminal procedure, it made sense to present an article that aligned with these subjects. I also chose the article because it veered at points into other areas of law, including constitutional law, state and local law, and analysis of political processes. This, I thought, would attract attention from professors with work outside of the criminal sphere and prompt more questions and comments from a broader audience in the job talk presentation. 

The Research Agenda

I was lucky enough to receive advice in law school that having a scholarly narrative uniting my overall work was a key element to an eventual career in legal academia. For that reason, I'd held off on even the initial step of applying to visiting positions until I was in a spot where I felt that my existing and planned projects told a consistent story. Even so, there were challenges. My scholarship had developed (and continues to develop) along two lines: criminal law and constitutional law. While you might think that I'd try to bridge the gap and write about constitutional criminal procedure, things hadn't (and still haven't) gone in that direction yet. As a result, I ended up drafting a bifurcated research plan--laying out my recent, ongoing, and planned work in criminal law, then doing the same for constitutional law.

Some general tips for the research agenda, based on what I did and the advice I received, include:

• Maintain a Narrative: Your research agenda should demonstrate how your scholarship has built on itself, and will continue to proceed in a certain direction. At the basic level, this means you should present your work chronologically: begin with a recent paper or your job talk piece, and then move into future work. I've found that you can enhance the narrative by also moving from specific to general--begin with concise descriptions of your recent and ongoing projects, and as you move farther into the future, your discussion can turn to more advanced concepts and how the work you've already done will lead into these areas.
• Remember Your Voice: Your agenda should not only demonstrate your scholarly promise, it should also communicate your personality. To the extent possible, keep it clear and approachable, as hiring committees will likely consist of people from different scholarly backgrounds. If you are a nonstandard applicant who's spent more time in practice than in graduate school, clerkships, or fellowships, consider adding a sentence or two indicating what, if any, of your work arose from your practical experiences. 
• Avoid Over-Abstraction: If you begin to discuss concepts that are too general, it will be difficult for those reviewing to see what you're adding to the discussion. Make sure that discussion of broader issues and the literature incorporates or relates back to the specific directions you want to take with your scholarship.

The Teaching Philosophy

It's been a while, but if I recall correctly, the teaching philosophy was not a document that I submitted with the FAR. Still, I think it's worth special attention--especially since there may be others like me out there with little to no recent teaching experience at the time they applied.

While I spent last year visiting at the University of Idaho, classes hadn't begun while I was preparing my application paperwork in July and early August. And even though the FAR did not require it (again, those applying this year should check to make sure of this), many schools to which I was applying directly asked for a teaching philosophy as part of the initial submission. Additionally, several schools that contacted me through the FAR invited me to submit direct applications, rather than requesting an initial interview, and these direct applications often required a teaching philosophy.

As someone who hadn't ever taught a law school class, and whose last classroom teaching experience dated back to early 2014, the teaching philosophy was a bit of a challenge. Those whose experience tends toward practice rather than fellowships and advance degrees may find themselves in a similar spot. I addressed this issue by looking to experiences I'd had in practice that might be transferable to the classroom. As it turned out, I found quite a few examples. Revising work done by a law clerk or a junior associate, getting someone new to a case up to speed on the facts and the parties, and explaining complex legal concepts to clients were all examples I cited of experiences that--while not precisely the same as teaching students--had honed my abilities to distill complex notions and answer questions on the fly.

Another strategy that I found helpful was to include aspirational language in my teaching philosophy. I suspect that nearly all applicants--even if they aren't from the most elite schools--have attended law school themselves, and have likely had a few professors who stood out as great teachers. In my teaching philosophy, I shared examples of some of these professors and how I hoped to incorporate their techniques into my own teaching. Another, constant source of aspirational examples is Michael Hunter Schwartz's, Gerald Hess's, and Sophie Sparrow's book, What the Best Law Teachers Do, which compiles a vast amount of interview, questionnaire, student feedback, and other data to provide a vast set of teaching best practices.

One last point on teaching which will not apply to everyone: I've only been teaching for a year, but I've found that conducting witness depositions and direct examinations involves a wide range of skills that transfer to the question-answer style of law teaching. My class notes tend to reflect the notes I used to prepare for depositions and direct examinations--often a list of questions with expected answers and citations, along with notes on where the line of questioning may diverge depending on the answer. The skill of re-asking a question is also crucial, especially for those students who may not initially have the right answer. Knowing when to let a witness keep talking and when to cut them off translates well to knowing how long a discussion should persist before it stops being fruitful. Backing up and asking incremental, easy questions to lead to a desired answer is a frequent occurrence in witness examinations, and this same skill can be used to lead a student who initially thinks he or she doesn't know the answer to figure things out--which I find to be a particularly rewarding classroom experience.

The Curriculum Vitae

I don't have much to say on this front other than to recount a few points of advice I received that may be helpful. The CV I submitted to law schools differed from the usual version to the extent that I included a brief summary of each article underneath each entry. Doing so made the CV a one-stop document for reviewers, rather than requiring them to track down the article abstracts themselves. 

To make things easier for those in hiring committees interested in tracking down my work, I made each article's citation a hyperlink to a page with the final publication version, or to my SSRN page for those articles that were still forthcoming. It seemed to help, as I received several questions specific to some of my articles in screening interviews.

The DEI Statement

I'm a white heterosexual male, and while I'm the first in my family to go to law school--I'm not the first in my family to go to college. Accordingly, in preparing my Diversity, Equity, and Inclusion statement, I emphasized my educational and practice experience that were relevant to DEI goals. I had the fortune of attending UCLA School of Law--a school with a fantastic Critical Race Theory program, which gave me opportunities of taking classes from professors with CRT expertise and to see how these considerations were connected with other legal doctrines.

Here, as well, practice experience is relevant. As a civil litigator and prosecutor, I had to be attuned to how people along a broad range of races and backgrounds may react to the facts of a case or a particular argument, because those are the people who will be on the jury if a case gets to that stage. An effective lawyer must keep these perspectives in mind from the earliest stages of a dispute in order to predict chances of success, whether a case is worth pursuing in the first place, and how to frame a case to appeal to a broad audience. In my statement, I emphasized this experience, as well as the need to teach students to keep broader questions of credibility in mind rather than simply identifying all the possible arguments (a version of this point appeared in my teaching philosophy as well).

Beyond these examples, I don't have much in the way of advice to give on the DEI statement, as so much of it will be dependent on one's own experiences and background. My hope is that these examples provide suggestions of potential directions applicants may take.

General Advice for the FAR Stage

Contact Your Law School for Advice on the Hiring Process: I didn't include this advice in my last post, but I probably should have. I suspect that many law schools have personnel devoted to advising former students on navigating the job market--even if this resource isn't publicized all that much. For me, a meeting for coffee with a UCLA Law professor shortly before my departure to Idaho resulted in a referral to other UCLA professors who ended up providing me with ongoing advice, feedback on materials, and even a mock job talk as I went through the application process. Anyone considering a career in academia should reach out to their law school--either to a former professor or to the career center--to see what resources are available.

Submit Your Information to the FAR: During the 2022 hiring phase, I heard many anecdotes about applicants who were interviewing with schools outside of the general FAR process. Some of these interviews began far earlier than interviews of FAR candidates, which aren't scheduled until after the first distribution in August. I think similar things were happening in 2021, although I'm less sure about this. Even if this is the case, many schools still rely on the FAR to hire and you should still submit to the FAR. Many of my screening interviews (probably more than half?) were schools to which I had not directly applied--they contacted me after reviewing my FAR to schedule the screening interview. To maximize your chances of an interview, submit to the FAR.

Consider Submitting Outside the FAR: While submitting through the FAR is still, in my view, a necessary part of the hiring process, you should keep an eye out for postings and apply directly to those that are of particular interest. Schools with certain academic strengths or focuses that would benefit your work and to which you could contribute may be worth a direct application. Ditto for schools in regions where you would rather work.

Pay Attention to Deadlines: As noted above, the initial FAR submission deadline is one of the most important dates to keep in mind during the application process. While there are multiple distribution dates, the uniform advice I received was that you need to get into the initial submission if you want to be considered at the vast majority of schools. Beyond this, some schools that solicit direct applications may have dates that are even earlier than the FAR. Some of these schools will note that these early deadlines are only for those who won't submit through the FAR. But others may not be so clear. I was generally told that schools with earlier application deadlines will still consider those who submit through the FAR at a later date, but I still think it wise to meet these earlier deadlines if the school is one that is of particular interest to you.

Keep an Eye Out for Job Postings: Schools often post hiring announcements prior to the FAR deadline. You should follow these announcements so that you can identify potential schools for direct applications. The blog, The Faculty Lounge, is a good place to spot these announcements, and from a quick check, it looks like there's a couple weeks' worth of hiring announcements posted there already.

"Standard Applicants?"

Based on a fruitful Twitter exchange with Richard Heppner after my first post, I want to clarify that my understanding of the qualifications of the typical entry-level applicant is limited to information available to me as an applicant. This information--particularly entry-level hiring lists that Sarah Lawsky compiles--tends to be limited to successful applicants. As a result, when I make inferences over applicant qualifications and the frequency of qualifications, I tend to draw on the pool of applicants who ultimately get positions. To be sure, this is a limited dataset. The AALS, which administers the FAR, forbids the use of applicant information for analysis by recipient schools. 

Still, I still think it's worth noting what qualifications tend to exist among those applicants who ultimately succeed. One may object that many applicants don't hail from top law schools or have advanced degrees, clerkships, and fellowships. But if those applicants uniformly fail to get jobs and, as a result, aren't reflected in the data regarding those who are ultimately hired, it seems that these qualifications tend to be treated as necessary to a certain extent. To that end, perhaps my use of "standard applicant" ought to be "standard successful applicant." I'm still hesitant to make this change absent data to the contrary, especially in the wake of a year where there were far fewer applicants--an environment which some observers suggested a concentration of more highly-qualified applicants compared with years past.

Noteworthy Thoughts on the Academic Job Market

In this section, I flag points that I've seen raised (mainly on Twitter) regarding the academic job market that may be helpful for applicants.

Tiffany Li notes that she served on a hiring committee and that her experience taught her "how much of a job search is really out of your control as a candidate. You could be incredibly qualified, but whether you get hired might depend on factors you have no idea about at all." Considerations include budgets, hiring priorities, "internal politics," and other issues. Still, she urges that this shouldn't dissuade people from applying--rather that people on the market shouldn't take rejection as indicating they are poor candidates.

Orin Kerr also mentions that hiring committees should be more open to non-traditional candidates, a point with which I strongly agree. 

Additional Resources

Here I continue to copy a set of general resources that I think may be helpful to applicants. This list will keep expanding with each post as I receive additional suggestions and become aware of more resources.

Yale Law School 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.

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.

Going on the Academic Job Market - Part 1: The Initial Decision

In early 2022, I left a career in civil litigation in Los Angeles for a temporary faculty position at the University of Idaho College of Law. Starting in law school at UCLA, I had become interested in pursuing a career in legal academia. Using Eugene Volokh's book, Academic Legal Writing, as a guide, I began writing and publishing legal scholarship in UCLA's journals and elsewhere. But when I began practicing, especially when I began practicing in litigation, writing took a distant backseat to my job. I had to learn the ropes of litigation, firm dynamics, billable hours, and a host of other things. I worked in several jobs with less-than-stellar work-life balance dynamics. Only when I made it to my last firm, Glaser Weil, was I able to find a balance that let me get back into writing, and to the realization that an academic career might be possible. After making the move to Idaho, I went on the job market, ultimately ending up at St. Mary's University School of Law, where I will begin teaching in August.

This is meant to be the start of a series of blog posts detailing my experience in going on the legal academic job market--starting with my initial determination to take a visiting teaching position, and moving into the hiring process itself. I plan for these posts to be divided between summarizing my own experience, and laying out pieces of advice that I think might be helpful to those going through the same process. While there's some good advice on the topic out there (some of which I list at the end of this post), a lot of what I've seen and heard tends to be directed to a standard sort of job applicant. 

The Standard Applicant

Don't be fooled by the label, "standard." These applicants are far from uniform, average, or unqualified. Indeed, the "standard" legal academic job applicant is uniformly someone with a collection of top credentials.

The standard applicant is a person who's gone to a top law school. As Brian Leiter writes here, Yale leads law schools in producing law professors, and is followed by Harvard, Stanford, and Chicago, which in turn are followed by NYU, Columbia, Berkeley, Michigan, Virginia, University of Pennsylvania, and Northwestern. 

There is a fair probability that the standard applicant went into a clerkship right out of law school (often appellate, often multiple clerkships). This qualification, however, has declined in recent years, with data compiled by Sarah Lawsky indicating that of successful applicants in the 2022-23 hiring year, 47 percent had clerkships, while 50 percent of applicants hired in 2021-22 had clerkships. In years prior the percentage of successful applicants with clerkships fluctuates between 50 and 60 percent. Accordingly, while clerkships are common, they may not be common enough to count as "standard."

The standard applicant perhaps spent a year or two at a large law firm before transitioning into a prestigious fellowship (often at a top law school, often a multi-year program) designed primarily around providing a place to write, workshop, and publish scholarship, and to perhaps get some initial teaching experience. The standard applicant often has an advanced degree along with a fellowship--often a PhD in a topic relevant to their scholarship. As a result, the standard applicant often enters the job market with a fair amount of scholarship already published, with more on the way. The fellowship and advanced degrees give the applicant a ready-to-go network of academic contacts and recommenders.

These posts may be of help to the standard applicant, but they're not the audience I have in mind. Indeed, I suspect that between their prestigious law schools, fellowships, and advanced degrees, these applicants will have plenty of detailed advice on how to approach the job market--advice likely far more detailed and helpful than anything I can provide.

Instead, these posts are meant to inform (and, I hope, inspire?) the nonstandard applicants--those who may not have gone to a top law schools, those without prestigious clerkships, and those who instead of spending years pursuing advanced degrees chose instead to practice as lawyers.

My Background

This section and the next are a narrative describing my background and experience applying for my first teaching position. If you aren't interested in the background, feel free to skip below to where I've distilled points of advice that I hope are generally applicable to people in similar situations.

I count myself as a nonstandard applicant. I went to UCLA for law school--a great school, but not a typical source of legal academics. My interest in legal academia, which began in law school, was largely spontaneous and originated in a realization that I enjoyed writing legal scholarship. At the time (2011-2014) I was not aware of any presentations or programs geared toward those interested in academia. Instead, I got my initial advice by making appointments with professors during office hours early in the semester, in which I would ask about their own experiences and advice. One of these meetings was with Jennifer Mnookin, then my evidence professor, and eventual dean of UCLA Law and Chancellor of University of Wisconsin-Madison. As it turned out, she was in charge of the hiring committee that year, and provided some excellent insights into applicant trends and success tips. Most notably, she pointed out that the vast majorities of those making it to advanced interview stages had advanced degrees--a quality that she suggested might be a proxy for a body of written work.

With this advice, I dove even deeper into writing. I also worked as a teaching assistant for some undergraduate philosophy courses during my third year, which gave me experience running a classroom, drafting quiz/exam/essay questions, and grading. An advanced degree was out of the question--I had a lot of debt and I hadn't gotten a job during the on campus interviews, so my top concern was simply finding a place to work. I ended up in a one-year fellowship at the Orange County District Attorney's Office, where I spent the bulk of my time trying misdemeanor cases at all stages, including nine jury trials. From there, I transitioned to civil litigation.

While I'd been able to keep up some writing at the DA's office, this ended once I shifted over to civil litigation. Billable hours took some adjustment, and it took me a few years before I became efficient enough to meet my targets without a significant excess of nonbillable hours. I started at a small firm, then moved to a larger firm--but found that the work (insurance defense in personal injury, landlord-tenant, and professional liability cases) to be unsatisfying. 

My last firm, where I worked for about four-and-a-half years, changed all of this. I worked for a variety of partners on a wide range of cases, including high-profile cases in a variety of interesting fields like entertainment law, civil rights litigation, and environmental law. And I became efficient enough to get back into writing, which I turned to in earnest when the pandemic hit. 

Initially, I wrote about what I found interesting or fun, without much regard to a future academic career (which I wasn't really considering when I started writing again in 2019). This led to some oddball scholarship, starting with what is still my favorite article, Shooting Fish. But it also made it far easier to balance writing with work, as the writing was more of a hobby than a second job. And as time went on, I found that one paper led to another and that I had soon built up some consistent work (and had plans for future papers) that told a relatively clear scholarly story. Additionally, through writing and promoting scholarship on Twitter, I began to build contacts with other legal academics, such as Brian Frye who invited me onto his podcast, Ipse Dixit, to discuss the Shooting Fish article.

In late 2021, I began thinking more seriously about taking the leap from practice to academia. I did not consider myself ready to go on the job market. While I had a decent number of publications, many of them had been written several years earlier during and immediately after law school. And, more importantly to me, I did not think I would be a credible applicant without some teaching experience. In early 2022, I began the process of applying to visiting positions around the country.

Applying for the First Teaching Position

In seeking out visiting spots at law schools, I tried looking for positions that billed themselves as fellowships meant to prepare applicants to eventually go on the job market. At the same time, I was informed of some unwritten rules or expectations of certain, prestigious fellowships which, while purportedly open to all, often were quite credential-focused themselves. Getting a prestigious fellowship may be a feasible option for the standard applicant from Yale, Harvard, or Stanford, but those from schools that don't often produce academics would likely have lower chances of admission.

As a result, I cast a wide net in seeking out visiting positions. I'd already been able to produce a fair amount of scholarship while meeting my billable hour requirements, so I figured I'd be able to do the same if my eventual position focused on teaching rather than on developing scholarship. I found that visiting positions were closely tied to school's regular hiring practices, and were often posted in the winter and early spring as applicants were hired (or as positions remained unfilled) and teaching needs became more apparent. I applied as positions were announced--I believe the bulk of my applications went out between February and April.

One disadvantage I had in the application process (for which I was to blame) was a lack of academic references. I graduated from law school in 2014, and didn't get back into writing scholarship until 2019. I didn't begin applying for visiting positions until 2022. In those intervening years, I had not kept up contacts with my former law professors, and I could have communicated more regularly with those in the fields in which I was working. Additionally, I couldn't really ask partners at my firm to be references because they didn't know I was applying for another job. Ultimately, I cobbled together references from a professor I'd begun communicating with who I'd met virtually once I began writing again, a childhood friend who'd gone on to get a PhD in rhetoric and with whom I'd coauthored an article, and a former partner at my firm who'd recently left to a different firm.

One of the schools to which I applied was Idaho. The position was a one-year temporary faculty spot, focused entirely on teaching (with no scholarship requirement or expectation). Still, the teaching subjects were constitutional law and criminal procedure, which aligned perfectly with my research interests. I applied, and ended up getting an interview in early May. 

My biggest concern going into the interview was my lack of teaching experience. For a candidate for a visiting position, I felt that my publications were sufficient, but I'd never taught a law school course. To make up for this, I emphasized what I thought to be transferable experiences, including my prior experience as a teaching assistant, as well as my experiences mentoring more junior associates in my practice.

It seems that I was able to convince my interviewers, as I received an offer shortly thereafter. Suddenly, things were real and I began planning my exit from my firm. I had good relationships with the partners and while they were sad to see me go, they told me that I could always return if academia didn't work out. This ended up helping me out a great deal in the long run by removing a great deal of stress and uncertainty once I finally went on the market. If things didn't work out, I could always return to my previous job.

Considerations Before Making the Leap

Below are some points of advice that I've distilled from my experience of deciding to make the initial leap from practice to a visiting position. These points only address this initial stage (although some may also be relevant to later stages of the process). I'll be providing similar points of advice for the later stages of the application process in later posts. 

• The Type of Fellowship or Visiting Position: Not all temporary academic positions are created equal. Some positions have a primary focus of getting an applicant ready for the job market. These positions will focus on developing and workshopping scholarship by creating time to write and interact with a school's faculty. Frequently, these are multi-year positions, where one develops scholarship in the first year and goes on the market in the second, while maybe teaching a course or two along the way. When I hear "fellowship," this is generally what I think of. On the other hand, there are visiting positions where a school is simply looking to get a teaching spot filled--either a hire fell through or someone left, and they need someone to teach a certain set of courses. These positions won't be built around preparing you for the market, and are often going to be one-year positions. I've found that the description of the visiting position tends to indicate whether it's a fellowship or visiting teaching position: look for language regarding whether scholarship will be supported and workshopped, as well as language indicating that part of the position will involve preparation to go on the teaching market. If you went to a top school or have other solid credentials like a graduate degree or solid clerkship, you should seriously consider applying to the more prestigious fellowships (Bigelow, Climenko, etc.), as you will have a huge advantage when you eventually go on the market through resources and name-recognition. But if you can only get into a visiting teaching position, you can still be well-positioned when you eventually go on the market. At PrawfsBlawg, Jessica Erickson breaks down the different types of visiting position, and provides helpful advice for applicants in determining whether a particular posting falls into each category.
• Take Initiative at a Visiting Teaching Position: While visiting teaching positions may not have the advantages of a full-on fellowship, they are still good opportunities! My position at Idaho was like this, and it still got me in touch with professors who could advise me on the job application process, look over my scholarship, and serve as references. Still, going on the market from one of these teaching-centric positions can be more of a challenge, especially if you're expected to take on a full teaching load and still make time to continue writing and preparing your academic materials. You will need to take initiative to shape the position to be as much like a fellowship as you can by finding time to write, reaching out to professors to ask them to review your scholarship, seeing if they can arrange workshops for you to practice presenting your work, and asking them to watch you teach so they may serve as effective references. If you can put in the work, you can transform a visiting teaching position to carry many of the benefits of a fellowship.
• Credentials: Even at the early stage of finding an initial teaching job, credentials are important. Those who went to lower-ranked schools will likely face an uphill journey for positions. I've heard from some people that not having a clerkship may be a further obstacle, but others more often tell me that a clerkship is not the necessary credential it used to be. Some of the most prestigious fellowships may be effectively out of reach for applicants who graduated from certain schools. Still, there are strategies one may take if they, like me, don't have the standard set of credentials or graduate degrees. Writing and publishing before applying to the initial job signals your interest in academia--even if you're applying for a position where scholarship isn't part of the job. I was able to refer back to my scholarship to demonstrate my interest in academia and enthusiasm for the teaching role. Additionally, casting a wide net--both regionally and with types of visiting positions--increases the chances of landing an initial role, although it may not be an ideal, scholarship-focused fellowship. 
• Teaching Subjects: If you are applying to visiting teaching positions rather than fellowships, focus on positions that align with your scholarly interests. Teaching a subject complements research on a subject--it often forces one to revisit fundamentals, question assumptions, and refresh oneself on the relevant case law and statutes. Even if a position requires you to have a full courseload, aligning those courses with your research will end up enhancing your scholarly output. It will also give you more credibility on the job market, as you'll have something to point to as evidence of why you want to teach a particular type of course.
• Location Flexibility: To take full advantage of the visiting positions that may be available, you should be prepared to move just about anywhere. Instilling this flexibility at this stage will also help when on the market for a permanent position. For the initial teaching job, however, there can be even more flexibility, as you will likely only be in that location for a year or two. It's also worth keeping in mind that a more rural location will likely have cheaper living expenses, which may ease the transition into academia. However--keep in mind that you may need to travel frequently when you're on the job market, so ready access to an airport should be a key consideration as well.
• Costs: If you have the ability to save up before making the leap, I recommend doing so. Visiting position pay isn't very high, and relocation costs are high. In this way, non-standard applicants coming from firm practice have a bit of an advantage, as I was able to save up a decent amount before applying to my visiting position. If you are in a government or public interest position where this may be more of a challenge, this isn't the end of the world. Even at the visiting level, you can still negotiate things like reimbursement for moving expenses. I've found that a gentle inquiry into what may be possible is the best way to get these negotiations going, and I suspect that many schools will be able to offer at least something so they can get necessary teaching positions filled.
• Backup Plan: The job market is an uncertain place, especially for non-standard applicants, and even if you get a visiting position or fellowship, there's no guarantee that you'll end up with a permanent position. Accordingly, develop a backup plan going into the process in case things don't work out. Ask around the school where you're considering visiting to see if visiting faculty tend to be re-hired for second and third years. See if your firm will give you the option of a one-year leave of absence rather than leaving altogether (this was an option that several of the partners floated to me when I left). And consider how you will frame your visiting position if you try to reenter the market--which, on the private side, may be wary of such a departure from practice. For me, the story would have gone: "I decided to take a risk after the pandemic caused me to rethink my life priorities, but decided that academia wasn't for me, and I want to return to litigation where I have all this experience and know I can succeed." At the very least, you should think of a line like this that you'll use should you need to reenter your initial field.
• Understand that People Want to Help: Throughout the application process, I found that many people--even if I hadn't spoken with them for a long time, or if I had only interacted with them a few times--were willing to give their time and advice to support my move to academia. Don't be afraid to ask for help! The vast majority of law professors and others in legal academia will be happy to help you however they can, and will often point you in the direction of resources or people with even more knowledge.

Additional Resources

Here, I'm compiling a list of resources helpful at various stages of the process--not just the initial leap into a first teaching position. I'll likely be copying this section and expanding it as these posts continue.

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).

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.

[EDITED July 17, 2023: I revised the descriptions of "standard" applicants to revise the list of schools that tend to produce legal academics, as well as to add qualifying language to the discussion of whether standard applicants tend to have clerkships]

Original Meaning, Context, and Shifting Reference Points: The Racial Connotations of "Freedmen"

At the Atlantic, Adam Serwer critiques Justice Thomas's analysis of the original meaning of the Fourteenth Amendment's Equal Protection Clause in the Court's Students for Fair Admissions, Inc. v. President and Fellows of Harvard College opinion. Specifically, Serwer takes issue with Thomas's claim that the term "freedmen" was racially neutral. Michael Rappaport, whose work Thomas cites in support of this claim, calls out Serwer, labeling his article as a "screed" rife with mistakes. Rappaport then argues that the term "freedmen" is race-neutral and ought to be read as referring to former slaves rather than Black people.

Below, I set out the arguments, starting with Justice Thomas, moving to Serwer, and concluding with Rappaport. I then demonstrate the flaws in Rappaport's response (and, in turn, Thomas's reasoning)--arguing that his arguments only succeed by sidestepping context necessary to determine original meaning and using shifting definitional reference points to avoid arguments about original meaning.

Setting the Stage

In SFFA v. Harvard, the Court struck down Harvard's and the University of North Carolina's affirmative action programs. In doing so, the Court concluded that the types of programs employed were inconsistent with the Fourteenth Amendment's Equal Protection Clause. While the majority's treatment of the Fourteenth Amendment's history and original meaning was relatively brief, Justice Thomas authored a lengthy concurrence purporting to demonstrate the original meaning of the Equal Protection Clause and why affirmative action programs are inconsistent with the clause.

In doing so, Justice Thomas defends a "colorblind" version of equal protection, drawing repeatedly on Justice Harlan's dissent in Plessy v. Ferguson. Here's one example of how Justice Thomas quotes Harlan:

For Justice Harlan, the Constitution was colorblind and categorically rejected laws designed to protect “a dominant race—a superior class of citizens,” while imposing a “badge of servitude” on others. (p. 17)

For what it's worth, here's how Justice Harlan discussed the Constitution's colorblindness:

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.

To very quickly summarize: the colorblind approach to equal protection is important to Justice Thomas (and the majority) because they read the Equal Protection Clause as a blanket ban on any racial distinctions in law. This applies not only to laws that disadvantage or denigrate people on the basis of race, but also laws that are designed to provide benefits to people on the basis of race. A strict, colorblind reading of the Fourteenth Amendment's guarantee of "the equal protection of the laws," therefore prohibits affirmative action programs, which increase the probability of admission for certain applicants on the basis of race.

In arguing that the Fourteenth Amendment's original meaning supports such a reading, one obstacle Thomas confronts is that of laws providing particular benefits and protections to "freedmen," or former slaves, enacted around the time of the Fourteenth Amendment's enactment and ratification. The argument with which Thomas contends is that laws like the 1865 and 1866 Freedmen's Bureau Acts provided benefits to freedmen, and therefore provided benefits on the basis of race. This undermines an originalist reading that the Fourteenth Amendment was meant to be neutral above all else by demonstrating that the same Congress that voted for the Fourteenth Amendment also enacted laws containing racial classifications.

Thomas rejects this reading of the Freedmen's Bureau Acts:

Importantly, however, the Acts applied to freedmen (and refugees), a formally race-neutral category, not blacks writ large. And, because “not all blacks in the United States were former slaves,” “ ‘freedman’ ” was a decidedly underinclusive proxy for race. M. Rappaport, Originalism and the Colorblind Constitution, 89 Notre Dame L. Rev. 71, 98 (2013) (Rappaport). Moreover, the Freedmen’s Bureau served newly freed slaves alongside white refugees. P. Moreno, Racial Classifications and Reconstruction Legislation, 61 J. So. Hist. 271, 276–277 (1995); R. Barnett & E. Bernick, The Original Meaning of the Fourteenth Amendment 119 (2021). And, advocates of the law explicitly disclaimed any view rooted in modern conceptions of antisubordination. To the contrary, they explicitly clarified that the equality sought by the law was not one in which all men shall be “six feet high”; rather, it strove to ensure that freedmen enjoy “equal rights before the law” such that “each man shall have the right to pursue in his own way life, liberty, and happiness.” Cong. Globe, 39th Cong., 1st Sess., at 322, 342.

In his Atlantic article, Serwer rejects this argument:

“Freedmen” cannot be a “formally race-neutral category,” because American slavery was not a formally race-neutral institution. Moreover, an extensive historical record illuminates the intentions of the lawmakers who passed the Freedmen’s Bureau Acts. They certainly did not see the term freedmen as racially neutral, and they intended the bureau to protect the rights of Black people in the South, whether formerly enslaved or not. We know this because they said so; the insistence to the contrary is the result of conservatives projecting their version of “color blindness” backwards through time.

Serwer goes on to argue that ninety percent of Black people were slaves in 1860, citing an email exchange with historian Eric Foner. He also points to evidence that supporters of the Freedmen's Bureau Acts, those who debated them, and Justice Thomas himself use the terms "freedmen" and "blacks" independently. These arguments align with points made by Justice Sotomayor in her dissent (pp. 6-8) where she also notes that "contemporaries understood that the Freedmen's Bureau Act benefited Black people" and that the same congress that passed the Act also passed the Fourteenth Amendment.

At The Originalism Blog, Mike Rappaport takes issue with Serwer, arguing that Serwer manages to "include both the main mistakes historians make about the Freedmen’s Bureau Acts and some of the principal slanders against modern originalism." Rappaport also chides Serwer for failing to read his law review article, "Originalism and the Colorblind Constitution," which Thomas cites in his concurrence (a citation included in the quoted excerpt of Thomas's concurrence).

Rappaport argues that Serwer fails to defeat the originalist case for a race-neutral reading of the Equal Protection Clause, focusing on evidence regarding the Freedmen's Bureau Acts:

If Serwer wants to prove his point, he needs to claim that freedmen meant blacks rather than former slaves. But that is pretty difficult, given that the term “freedmen” pretty clearly indicates someone who used to be a slave and has now been freed. Serwer quotes a couple of historians to claim otherwise but their arguments miss the point. For example, Serwer quotes an Eric Foner email stating “Ninety percent of Blacks were slaves in 1860, and everyone knew whom the Freedom Bureau Act was meant to assist.” But that is not the question. The question is whether "freedmen" referred to people based on their color or based on circumstances.

Serwer’s principal argument is that all freedmen were black. True enough, but irrelevant. The question is whether "freedmen" was a category that selected people based on race. It does not. Not all blacks were freedmen. Some had been born free. (And there were no whites, who were former slaves, who were not treated as freedmen.) The Act identifies a category based on circumstances, not race. 

Is the Original Meaning of "Freedmen" Race-Neutral?

With this extensive stage-setting finally done, it's worth taking a step back to look at what it is Thomas and Rappaport are trying to prove. Both zero in on the textual meaning of "freedmen" to advance their points. But it's worth keeping in mind that the meaning of "freedmen" is secondary--the ultimate goal here is how the term "freedmen" informs the meaning of "equal protection of the laws" in the Fourteenth Amendment.

How does this argument function? Those like Serwer and Sotomayor contend that if "freedmen" is not racially-neutral, then laws that explicitly benefit freedmen are therefore laws that provide a benefit based on race. The Freedmen's Bureau Act doesn't involve the exact same terminology of "Equal Protection," but the implication is that if it is not racially neutral, then it provides context for understanding the meaning of other language approved of by the same enacting body. In short, a strict, race-neutral reading of equal protection doesn't make sense if enacted by a Congress that also enacted race-based benefit schemes.

Rappaport and Thomas zoom in on terms and technical definitions to advance their race-neutral reading. Rappaport's point in his blog is a good distilled version of the arguments he makes in his article, and Thomas's reasoning is an even briefer version of the points. "Freedmen" isn't a racial term because not all Black people were slaves (Rappaport does acknowledge in his article that 89 percent of Black people at the time of the Civil War were slaves, and that, of the remaining 11 percent, "some, of course, were former slaves") (p. 98 n.108).

Through this exchange, it's important to track what reference points the parties are employing in defining the term, "freedmen." Serwer and Sotomayor appear to be arguing from an original intent (and, potentially, a limited original public meaning) approach. The meaning of "freedmen," at least as understood among those debating and enacting the Fourteenth Amendment and Freedmen's Bureau Acts, was not race-neutral. Accordingly, a law providing benefits based on freedmen status is a race-based classification. Rappaport purports to respond to this argument, but does so by employing a different reference point: the dictionary definition of "freedmen" as "formerly enslaved person"--a definition which, in turn, does not apply to all Black people (as a small percentage of Black people had not been enslaved). Rappaport seizes on this definitional to argue that the term is therefore race-neutral. But this is unconvincing. 

First, this argument requires one to look past the sheer proportion of Black people who fit into the "freedman" category and the fact that all people in the "freedmen" category were Black. All of this provides valuable context for what those using "freedmen" at the time of the enactment of the Freedmen's Bureau Acts and the Fourteenth Amendment meant: that "freedmen" was a racialized term used to refer to Black people. This is the point Serwer makes when he notes that those in the 39th Congress, and Justice Thomas himself, use "freedmen" interchangeably with "Blacks" and "negroes."

And context is important when determining original meaning. After all, this entire debate over the meaning of "freedmen" is taking place because the meaning of the Freedmen's Bureau Acts provides contextual evidence for or against a race-neutral reading of "equal protection" in the Fourteenth Amendment. It therefore seems quite strange to admit contextual evidence like the Freedmen's Bureau Acts to determine the meaning of the Fourteenth Amendment, while overlooking contextual evidence of the racial makeup freedmen and the low percentage of Black non-freedmen when attempting to sort out the original meaning of "freedmen."

Second, by changing his reference point, Rappaport does not engage with what Serwer and Sotomayor are discussing: the original understanding of the "freedmen" by those in Congress (and potentially the public). In the context of this debate, and most originalist analysis, it is this type of definition--not strained dictionary manipulation--that is characteristic of the original meaning that ought to be employed in the final analysis. Serwer and Sotomayor argue on this level. Rappaport (and for the most part Thomas) do not.

As a result, Rappaport's response fails to engage with Serwer's argument, which relies on context and the understanding of those enacting the Freedmen's Bureau Acts and the Fourteenth Amendment--context and understanding that, despite "freedmen's" dictionary definition of "freed slave," imbues the term with racial meaning. Instead, Rappaport's response falls back on dictionary definitions and notions of inclusiveness, technical points that he fails to connect with the understanding of those in Congress or the general public at the time the Fourteenth Amendment was enacted.

Rappaport suggests that Serwer failed to consult his law review article, so let's not make that mistake. In his article, it looks like Rappaport comes closer to addressing Serwer's point:

Second, while as a formal matter freedmen is not a racial term, it obviously has a strong connection and overlap with race. Thus, even if one does not treat the term as racial, one would still want to closely examine whether the term was being secretly used for racial purposes. There is, however, no reason to believe that the term freedmen was being used in this manner. There is an obvious reason why the Congress might have passed these Acts that has nothing to do with the race of the former slaves. These slaves had been oppressed in the most extensive way and had not received a basic education or learned the trade skills necessary to live self-sufficiently. Moreover, not only did they lack human capital, they also had acquired no physical capital in the form of land or money. Thus, it made perfect sense to provide them with education, food, shelter, and land in order to allow people who had been uniquely oppressed to enter society as free individuals. Further, even if one did not believe that these goods and services were needed to allow the former slaves to live self-sufficiently, one might argue that the benefits could be justified as a limited form of compensation for the harms these slaves had suffered.

Here, however, Rappaport still fails to engage with original meaning and context. Rappaport's initial recognition of the "strong connection and overlap with race" that the term "freedmen" quickly devolves into an inquiry over whether the term was being "secretly used for racial purposes." At this point, Rappaport has already left the debate. Assuming secrecy and subterfuge also assumes that the term, "freedmen" wasn't generally understood to have racial connotations--the point that Rappaport is supposed to be disproving. There is no secret, as using the term "freedmen" in a law is evidence enough that one is making a race-based classification.

From here, Rappaport's line of argument continues afield. He argues that there were reasons other than race to use the term "freedman." These former slaves hadn't received a basic education, they lacked human capital, they had no money or shelter. It's because of these conditions of slavery--not race, that they deserve special treatment.

This line of argumentation misses the point for two reasons. First, Rappaport's resort to the reasons for why Congress passed acts targeting freedmen fail to delve into why freedmen were enslaved and therefore lacked land, money, education, and other resources. They were enslaved because of their race. Accordingly, these alternative reasons remain inextricably connected with race. 

Second, as flagged above, the notion that there's a "secret" effort to target race begs the question by assuming that "freedmen" is not a racial term. But as Serwer argues, and as Rappaport appears to acknowledge at the beginning of this paragraph, "freedmen" is a racial term. In context--in a nation where slavery had just ended, where all the slaves were Black, and where the vast majority of Black people were former slaves--the term "freedmen" has racial connotations. The definitional parsing and claims of underinclusiveness do not engage with this contextual point. As with the previous line of argumentation, the resort to underinclusiveness claims is an unexplained and unwarranted abandonment of the relevant context and fails to refer back to original meaning.

The overall goal of this post was to lay out why it is that Rappaport's arguments appear unconvincing. His point may seem off at the outset, but without parsing out the different reference points involved in the debate and Rappaport's shift to dictionary definitions while purporting to describe original understanding, it may not be clear why precisely Rappaport's arguments fail to land.

The Implications of "Refugees"

This post is already too long, so why not make it just a bit longer? Both Thomas and Rappaport (in his article, at least) argue that the Freedmen's Bureau Acts also provided benefits for "refugees"--a term that both Rappaport and Thomas suggest mainly referred to white people. Thomas's argument on this point is short and fails to explain the significance of the point: "Moreover, the Freedmen's Bureau served newly freed slaves alongside white refugees." Rappaport's argument is more detailed:

Third, the bulk of the provisions under the Freedmen's Bureau Acts provided benefits to both freedmen and refugees. The term refugees would normally include whites, and once it is recognized that virtually all southern blacks would be freedmen, refugees becomes a term that would appear to have been intended mainly to cover whites. If one were concerned that the use of freedmen was an attempt to provide benefits on racial grounds, then the inclusion of refugees should help to quiet that concern. One question that one must ask about a category that overlaps with race is whether that nonracial category is being used as a subterfuge to benefit or harm a race. If the Acts merely provided benefits to freedmen, even though non-blacks were similarly in need of the same benefits, then one might be suspicious of the omission. By contrast, if the benefit is extended to non-blacks in a similar position, there is far less concern of it being a secretive attempt to provide racial benefits. I am skeptical that refugees really were similarly situated to former slaves, but if one did think so, this would quiet that concern. Moreover, there is evidence in the legislative history that refugees were added in part because of concerns that the proposed legislation was seen by some as race-based.

While Rappaport's treatment of refugee benefits is longer than Thomas's, it's still unclear how this proves the point that benefits provided to freedmen weren't benefits provided on racial grounds. Rappaport appears to acknowledge that this point has no bearing on the racial connotations of "freedmen," now acknowledging that all freedmen are Black and suggesting that benefit provision to refugees therefore applies mainly to white people. At the same time, Rappaport continues to argue as though providing benefits to Black people is being attempted via subterfuge--a tactic that (as noted above) assumes the conclusion that "freedmen" was originally understood to be race-neutral. The most apparent issue is that even if "refugee" is a race-neutral term, it's unclear how what bearing its neutrality has on the separate term, "freedmen."

It appears that Rappaport is arguing that the Freedmen Bureau's Act, by providing benefits to refugees, balances out the allocation of benefits "to non-blacks in a similar position" and therefore balances out the provision of benefits to white people and Black people. His final sentence supports this reading, where he notes that there's evidence that "refugees were added in part because of concerns that the proposed legislation was seen by some as race-based."

But if this is the point Rappaport is making, it only succeeds if one assumes the opposite of what Rappaport is attempting to prove, that providing benefits to "freedmen" is the provision of benefits on the basis of race. If including refugees as a separate category of beneficiaries is necessary to accomplish racial neutrality, then any benefit specifically provided to freedmen is a benefit provided on the basis of race. Indeed, from a racial classification perspective, this seems to be even more problematic for Rappaport's colorblind vision, as this reading characterizes the Act as counteracting one racial classification with a second, separate racial classification. 

Problems arise further to the extent that benefits were allocated differently between refugees and freedmen. Eric Schnapper details this differentiated treatment, highlighting "four race-conscious provisions" in the Freedmen's Bureau Act of 1866, including a different scope of overall aid to be provided to freedmen as opposed to refugees, a limitation of the use of land and buildings for education to freedmen only, and certain land protections for freedmen only." (p. 772-73). 

Ultimately, this point is secondary, and gets fairly short shrift in Thomas's opinion. But it's worth mentioning to the extent that it further demonstrates Rappaport's shifting and lack of clarity regarding definitional reference points.

There is much more to discuss regarding the Court's opinion, Thomas's concurrence, and even the original meaning of freedmen. But this post is now far longer than reason demands, and I will leave it to the reader to seek out commentary on those other points elsewhere. I'm sure, as the weeks and months go on, much more will be said.