Long Live U.S. News

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

Professional Updates and Recent Scholarship

Blogging has been light over the past year because I've been getting accustomed to a career as a legal academic. A little over a year ago, I began searching for visiting positions at law schools around the country, and ended up with an offer from the University of Idaho College of Law. I've just wrapped up my spring semester of teaching Criminal Procedure (Adjudications) and First Amendment Law. I taught Constitutional Law II in the fall.

I've been used to keeping my professional work and my blogging separate because, up until relatively recently, I've wanted to avoid sharing information about my clients and cases. This desire to keep my professional work and blogging separate also was a large factor in what became my main research focuses: constitutional law and criminal law. For the most part, I did not practice much, if at all, in either area--and to the extent that there was any overlap, I avoided writing on topics that had the potential to veer into what I was doing at my day job.

Now, things will likely change. In the fall, I will be beginning a tenure-track position at St. Mary's University School of Law in San Antonio, Texas. I'll be teaching criminal law, criminal procedure, and some other courses that have yet to be determined (although I have some ideas and preferences that I'll hopefully be able to put into practice in the near future). I've had a fantastic experience at Idaho. The faculty here have been excellent mentors and have given me invaluable advice on teaching and navigating the academic job market. The students have been excellent--their opinions, insights, participation, and preparation have been consistently top-notch, and my departure is bittersweet as I won't have the opportunity to teach the students who will be continuing into their third year in the fall.

Blogging has been light because I've redirected a lot of my writing time to my scholarship. I've written a lot over the past year. I've shared a bit of what I've written, but only a small part of it. As always, my SSRN page is here and is fairly up to date. I've also been blogging less because I've been trying to write more short pieces as op-eds in order to reach a wider audience. As I work toward balancing my time teaching and writing, I'll be trying to blog more in the coming months.

Finally, a summary of my recent scholarly work. I've been pursuing something of a three-track research agenda: (1) constitutional law--particularly constitutional interpretation, originalism, and related issues; (2) criminal law--particularly odd laws and how certain criminal laws fail to achieve certain normative ideals like democratic legitimacy; and (3) odd law--odd or obscure laws that I find interesting and feel compelled to explore.

Recent work in each of these areas includes:

Constitutional Law

Multiple articles on the Court's last term and its turn to history and tradition, including an argument that the Court is turning away from original public meaning originalism, and a critique of the Court's history and tradition approach--specifically as applied in New York State Rifle & Pistol Association, Inc. v. Bruen.

An article on how debates over theories of constitutional interpretation must account for disingenuous and incompetent interpreters. I argue that certain theories may lend themselves to abuse or mistake more than others, and that one cannot simply dodge this issue by claiming that only the interpreter is to blame rather than the theory.

Some essays, including an illustration of problems with originalism in the context of interpreting the original meaning of "Twenty Dollars," an essay (coauthored with Al Hiland) on how the Court's history and tradition approach may be employed to overturn New York Times v. Sullivan, and an essay comparing originalism and common good constitutionalism under a transparency rubric.

Criminal Law

An article on criminal laws that appear to remain on the books despite strong indications that they are contrary to the will of a majority of those subject to the laws. I'll be following this article up soon with an article focusing on crimes appearing in state constitutions.

Odd Law

A deep dive into Idaho's tort of seduction, including the historical origins of the tort, constitutional challenges to the tort in other jurisdictions, and how Idaho's statute-based cause of action for seduction is different from other "heart-balm" actions like alienation of affection and criminal conversation.

There will be much more to come in all of these areas, so stay tuned!

The Flawed Ideal of the Unfazed Lawyer: A Response to Volokh

Yesterday I saw this series of tweets by Matthew Stiegler regarding Professor Eugene Volokh's decision to use the n-word in class, and Volokh's arguments for doing so. Stiegler refers to Volokh's post here where he notes that the dean of UCLA Law School had issued an apology for Volokh's behavior, which states:

Earlier in the year, Professor Eugene Volokh used the "n-word," both in class—in teaching a First Amendment case—and outside of class when recounting the incident to a colleague. As you may know, Professor Volokh has strong views about why he chooses to use incendiary language—even when vile—in his classroom, without euphemism or alteration. While he has the right to make that choice as a matter of academic freedom and First Amendment rights, so long as he is not using this or other words with animus, many of us—myself included—strongly believe that he could achieve his learning goals more effectively and empathetically without repeating the word itself. That is equally true in casual settings outside the classroom. Slurs, even when mentioned for pedagogical purposes, hurt people. The n-word is inextricably associated with anti-Black prejudice, racism and slavery; it is a word that carries with it the weight of our shameful history and the reality of ongoing anti-Black racism. I am deeply sorry for the pain and offense the use of this word has caused, and I very much respect the important work our Black Law Students Association undertook, using speech to counter speech, in the flowchart they distributed around the building.

Volokh's reply?

I want to respond here by explaining why I think I was right, and why I will continue to accurately quote things in class and outside it.

Volokh offers five (5) justifications for his use of the word. Stiegler took particular issue with one of them:

[4.] Moreover, law schools are training people to become lawyers. Lawyers have to deal with facts as they are, regardless of how unpleasant those facts may be. They need to read cases that contain nasty words and describe nastier actions.

. . .

And indeed every day, lawyers of all races, religions, ethnic groups, and sexual orientations handle cases—whether in criminal law, employment law, education law, civil rights law, family law, or elsewhere—in which they hear extremely offensive material. They handle these situations with professionalism, and don't let the casual cruelty, callousness, and hatred that they read or hear about get them down.

. . . 

I do not for a moment think that black lawyers allow themselves to be debilitated by hearing material about racism, gay lawyers about hatred towards gays, Jewish lawyers about anti-Semitism, and so on, whether that material describes violent attacks, contains epithets, or whatever else. I think that, as law students and law professors, we should follow this example.

Volokh's argument relies on an inaccurate view legal practice and the ideal attorney, does not account for the dynamic between professors and students, and fails to acknowledge the impact that his words have on his audience.

In Memoriam: Skye Donald

UCLA School of Law issued this press release earlier today which states in part:

UCLA Law faculty member Skye Donald, widely admired for her excellent teaching and extraordinary student mentorship, succumbed to cancer on Oct. 16. She was 43.

Donald joined UCLA School of Law in 2009, and was diagnosed with a brain tumor the following year. She nonetheless taught the Lawyering Skills course to hundreds of first-year students and assisted in upper-division clinical courses, and became an enormously successful and well- regarded teacher. In recognition of her excellence as an instructor, she was awarded a continuing appointment as a lecturer in law in 2015.

“Even in the midst of her very serious medical issues, Skye was extraordinarily focused on the well-being of those around her,” said UCLA Law Dean Jennifer L. Mnookin. “She worked very hard to understand and connect with her students, and she coupled high expectations with extraordinary empathy. We have lost a wonderful teacher, colleague and friend.”

Skye was my legal writing professor during my first year of law school. As my classmates and I attempted to manage our regular lecture coursework (including learning to glean rules and doctrine from cases and adapting to the Socratic method), we faced increasingly complex writing assignments that forced us to confront and adopt legal writing's terse analysis of facts and case law and the employment of cases as authority in legal arguments. For most of us, lecture courses were akin to learning to read in a different language and our legal writing course felt like learning to write in a different language.

Skye approached the task of teaching classes filled with stressed, confused, and stubborn students with an unceasingly positive demeanor. When finals and deadlines began to loom and tensions were high and tempers short, Skye defused the stormy atmosphere and renewed our confidence. She helped us see that with the right attitude and game plan, we could get through the seemingly endless piles of reading and work with which we were confronted. When I was confused about a grade or comment on an assignment, Skye took the time to talk me through my answer and her evaluation process and provided concrete guidance on how I could improve my work. Her cheerfulness cut through the darkest of days, and lifted the spirits of everybody in her presence.

My law school lecture courses gave me a doctrinal background that I have drawn on as an attorney. But without Skye's teaching, I would never have been able to employ my legal knowledge in motions, briefs, or blog posts. My legal writing abilities and my work as an attorney are both attributable to Skye and I will do my best to continue to employ and develop the skills she taught me. UCLA Law will not be the same without her.

Good Luck on the Bar Exam! (2016 Edition)

During the past week, I noticed that this 2014 post I wrote on bar exam dress codes was getting suspiciously high traffic. I then realized that this is the eve of the Summer 2016 bar exam, and decided to reprise my good luck post from last year. Additionally, those taking the bar exam this week should take comfort in the fact that while there are many, often obscure, rules governing the test, strict dress codes often are not one of them.

Unless, of course, you are taking the bar exam in Virginia. Good luck with that.

And good luck to everybody taking the bar exam this summer! Exams begins tomorrow, and recent law school graduates across the country are likely having trouble sleeping right now. To those graduates, this advice: make sure to eat, watch at least one episode of some show during the evening, keep writing, and DON'T TALK ABOUT THE EXAM with anybody else during the days of the test. Californians, this will be your second-to-last chance to take the three-day bar exam, so take extra pride in knowing that you are some of the last to endure that needless hardship.

Finally, for those who need the extra motivation: know that if you pass the bar exam, one day this could be you.

Queenan on the Coming "National Plague of Dumb Lawyers"

At the Wall Street Journal, Joe Queenan writes this column about how law schools' lowering their admissions standards will lead to a plague of dumb lawyers. Queenan describes the chaos that will result:

Dumb lawyers will lose clients huge amounts of money by confusing “escrow” with a salad. They will forget that they are not supposed to show the court the telltale coal scuttle or the bloodstained handkerchief or the strangled parakeet, and their clients will do hard time as a result. 

Procedurally, dumb lawyers will paralyze an already sclerotic legal system. They will misplace files, spill coffee all over the DNA samples, take the wrong exit on the expressway and end up defending the wrong conscienceless psychopath in the wrong court in the wrong state. They will forget that they are not supposed to call the jury a bunch of pathetic losers with bad perms like the one Melissa McCarthy has in “Spy.”

Terrifying as this prospect sounds, at least it is not a world without lawyers.

Perspectives on a Looming Decline in Bar Exam Passage Rates

As rumblings grow over the possibility of another summer of poor bar exam results, yesterday's New York Times ran this "Room For Debate" feature on declining bar exam passage rates. There were several notable contributions to the discussion regarding the notable fall in pass rates across the country which began in July 2014. 

To sum up each contribution with one (greatly simplified) sentence each: Deborah Merritt argues that the National Conference of Bar Examiners (NCBE) has too much control over access to the practice of law and is overly hasty in blaming law students' credentials for decreased passage rates; Linda Greene writes that law schools have a duty to help students better prepare for the bar exam and should identify and support those students who are most at risk to fail; Jerome Organ argues that law students' declining credentials are to blame for decreased bar passage rates and that this trend will continue; Brooklyn Law School Dean Nicholas Allard argues that the bar exam is outdated and in need of drastic overhaul; and Diane Downs notes that in an era of declining law school applicants, those who choose to attend have made a more deliberate, meaningful decision to become lawyers.

I think that each of the authors raises some good points, although, as I have noted before, I think that Dean Allard's criticism places too much blame for declining pass rates on the NCBE.  As Greene notes, law schools have a duty to better prepare their students for the bar exam. Dean Allard's criticism avoids acknowledging the legal teaching profession's responsibility to adapt to the disturbing trend of poor bar exam performance in a world where, like it or not, the bar exam exists. 

That's not to say that I don't think the bar exam could, and should, change. The exam could certainly be run more efficiently (two days, please), and results should be processed in a timely fashion (compare the date of this post to this post). But as for subject matter and format, it is easy to criticize a written, standardized exam. But I am at a lost when asked to think up any practical alternative. And those who know me know that I'm certainly not a supporter of dropping the test entirely.

As for law students and prospective law students taking all of this in, while proposals for change and criticisms of the exam may circulate, I suspect that the bureaucratic nature of the bar exam will make change a slow and painful process. My best advice for those considering law school now is don't count it out, but do carefully consider the realities of the field before making a hasty decision, and realize that tomorrow's bar exam will probably still look a lot like today's.

For previous posts on falling bar exam pass rates, see here, here, and here.

Concerns Over the California State Bar's Practical Training Proposal

Paul Caron has this post at TaxProf Blog quoting extensively from a (paywalled) article at The National Law Journal. From the quoted portion of the article:

The State Bar of California is pushing forward with a proposal to require candidates for admission to the profession to have completed 15 credit hours of practical training, over objections from deans around the country. 

The idea is to ensure that new lawyers are ready to practice law. But the Association of American Law Schools’ Deans Steering Committee warned the proposed rule would stifle curricular experimentation, limit the flexibility students now enjoy in choosing courses, and create a confusing patchwork of differing state requirements. 

Moreover, the repercussions would be felt well beyond the Golden State, since so may graduates want to practice there, the group said in a written statement.

“The intention comes from a good place, but it would make things difficult for the law schools and the students, operations-wise,” said University of Nebraska College of Law Dean Susan Poser, one of the 15 deans on the steering committee. “We already have an accreditor. It’s the [American Bar Association]. They tell us what we need to teach. To potentially have 50 state bars accrediting us is very complicated.”

The article goes on to note that deans are concerned about students who pursue joint degrees and students who are interested in subjects like tax law which focus more on doctrine than other areas of study.

Beyond these concerns, California's proposal may exacerbate a decline bar exam passage rates. Derek Muller has blogged extensively on the phenomenon of falling bar exam passage rates with examples of such posts here and here. In this December post, Muller highlights the National Counsel of Bar Examiners' (NCBE's) response to declining scores on the Multistate Bar Examination (MBE). The full NCBE report on falling scores is available here.

The NCBE notes that declining scores may be due in part to a rise in experiential learning. From the report:

The rise of experiential learning—a laudable objective—has also ushered in the greater use at some schools of pass/fail grading that may mask the needs of students at risk. Without grades for feedback, students may not realize they are at risk. In addition, the rise of experiential learning may have crowded out time for students to take additional “black-letter” courses that would have strengthened their knowledge of the law and their synthesis of what they learned during the first year

I am of the opinion that experiential learning has value, but it should not take up a substantial amount of students' time in law school. As I have suggested in previous posts, law schools offer the unique opportunity for students to systematically learn the doctrine of particular legal practice areas. While this teaching may veer into overly theoretical realms at times, the knowledge base that students gain allows them to be more thorough and creative when they ultimately apply their knowledge in a practical context.

My opinions on doctrinal learning aside, the NCBE's report suggests that a shift in focus from doctrinal to experiential learning may indeed have a detrimental effect on students' abilities to pass the bar exam. Even if experiential learning teaches valuable skills, these skills are ultimately of little use if students do not become practicing lawyers.

I hope that the California Supreme Court and Legislature consider the problems the California State Bar's practical skills proposal may create. Several levels of review remain before the proposal becomes reality, and these issues will hopefully be noted as the proposal works its way through the process.

"Jennifer Mnookin Named New Dean of UCLA School of Law"

So reads the title of this UCLA press release:

Jennifer Mnookin, a nationally renowned evidence law scholar who has held key administrative positions at the UCLA School of Law, has been appointed the school’s dean, Executive Vice Chancellor and Provost Scott Waugh announced today.

. . . 

Mnookin joined the faculty in 2005, and she served as vice dean for faculty and research from 2007 to 2009 and as vice dean for external appointments and intellectual life from 2012 to 2013. She is founding faculty director of the law school’s Program on Understanding, Science and Evidence. 

“Chancellor Block and I are confident that UCLA Law will reach new heights under Jennifer’s leadership,” Waugh said in an announcement. 

The 2014 recipient of the law school’s Rutter Award for Excellence in Teaching, Mnookin regularly teaches courses on evidence and torts, as well as more specialized classes in areas such as expert and scientific evidence, wrongful convictions, and law and popular culture. 

“It is a tremendous honor to be selected as the next dean of UCLA School of Law,” Mnookin said. “Having served on the UCLA Law faculty for the past decade, I know firsthand what an exceptional institution it is. We have tremendously capable students, an extraordinarily talented and dedicated faculty and staff, and passionate and involved alumni and friends.

Further, concise, coverage is available at the EvidenceProf Blog. The National Law Journal has this report.

I had the privilege of taking Mnookin's course on evidence law about two years ago. Her approach of combining traditional law school reading and the Socratic Method with in-class exercises, media projects, and video clips made it one of the most interesting and engaging courses I took during my time at UCLA.

Mnookin is an excellent choice for dean. Under her guidance UCLA Law's future is extremely bright.

Chemerinsky: California Should Adopt the Uniform Bar Exam

Erwin Chemerinsky, noted constitutional law professor and the dean of UC Irvine School of Law, recently wrote this op-ed in the Los Angeles Times. Chemerinsky argues that California should replace its state-specific bar exam with the Uniform Bar Exam used by fifteen states. He writes:

New York's chief judge, Jonathan Lippman, announced last week that the state would adopt the Uniform Bar Exam, a standard licensing test for lawyers. It's the largest state to take this step, which Lippman said could result in a “domino effect.” I hope so, and I hope California will be the next state to fall. The current system, under which each state sets its own requirements and won't recognize out-of-state credentials, is inefficient, burdensome and, frankly, unjustifiable.

Bar exams were rare until the late 19th century. From the late 1880s to the early 1920s, however, the American Bar Assn. waged a successful campaign for states to require a written exam. Traditionally, each state wrote and administered its own test. The purported rationale was to ensure that those admitted to practice law in a given state were sufficiently familiar with its unique laws. 

But the truth is that basic principles of law do not vary from state to state. And lawyers can learn the quirky specifics as they go. Forcing students to memorize detailed, state-specific rules, most of which they will never need to know and which they will promptly forget, does not ensure competence.

Chemerinsky notes the recent move by New York to adopt the Uniform Bar Examination. The New York Times has further reporting on that story here.

In the past, I have implied that bar exams that are not state-specific may not be ideal. There is a push to do away with bar exams in some states, and some of these arguments rely on bar exams not being specific to each state's law. To the extent that uniform bar exams provide fuel for these arguments, I acknowledge that this is one drawback of adopting uniform bar exams, since I am in favor of maintaining some form of a bar exam (although I would be open to considering a national licensing exam, like the one Chemerinksy hints at near the end of his op-ed).

But beyond the minor concern of the Uniform Bar Exam fueling opposition to bar exams in general, I think that Chemerinsky is correct. A great deal of time that I spent studying for the California bar exam involved learning areas of law that were specific to California. I not only reviewed the law of civil procedure, I also reviewed California civil procedure. I not only studied evidence law, I also studied California evidence law. I did not spend time in law school studying California-specific laws, since I did not know whether I would be staying in California after graduation. But had my plans been more set in stone, I likely would have taken some California-specific classes in order to better prepare my self for the California bar exam.

A Uniform Bar Exam would save students time by allowing them to focus only on an area of law, rather than requiring students to also parse out the differences in California's laws. Moving to the Uniform Bar Exam would also save paper. Approximately 70 pages in my commercial outline book for the bar exam were devoted to California Civil Procedure -- a state-specific subject that had never been tested before (and was not tested the summer I took the bar exam). By switching to the Uniform Bar Exam, law graduates would be able to focus their studies more efficiently and not waste time wading through redundancies and exploring areas that have never been tested. Another possible benefit of switching to the Uniform Bar Exam is that such a switch may cut down on the outrageous amount of time grading the exam takes (note the date of July 31 on this post from the third day of the California Bar Exam, and the date of November 21 on the date of this post when the bar exam results were released).

New York's adoption of the Uniform Bar Exam is noteworthy, and I hope that this development will have a ripple effect that reaches the west coast. Even if the California Bar does not want to adopt the Uniform Bar Exam, I hope that it will at least consider taking California's bar exam in a more uniform direction.

A New Round of Bar Exam Criticism

Law school graduates around the country took the bar exam at the end of February. In the exam's wake, commentators are questioning the necessity of the test. Last summer's bar exam prompted a notable wave of criticism in light of low passage rates and some blunt comments by the president of the National Conference of Bar Examiners. That criticism appears to have continued into the spring.

The New York Times reports:

For decades, law school graduates have endured a stressful rite of passage, spending the first 10 weeks after classes end taking cram courses in the arcane details of the law before sitting down for the grueling, days-long bar exam. Those who do not pass cannot practice law, at least in nearly all the states and the District of Columbia that consider the exam the professional standard. 

But that standard, so long unquestioned, is facing a new round of scrutiny — not just from the test takers but from law school deans and some state legal establishments. Some states, including Arizona, Iowa and New Hampshire, are exploring or have adopted other options, questioning the wisdom of relying on a single written test as the gateway to legal practice. 

The debate over the exam is not new, but it broke out in the open after the results of last summer’s exam were released in the fall, showing that the 51,005 test takers had the poorest results in nearly a decade.

The article explores several innovative approaches to bar exams, such as allowing students to take the bar exam in their final year of law school. Arizona has implemented this approach, which reduces the amount of time that students need to wait before exam results.

The article also notes that several states, including Iowa, have considered adopting Wisconsin's approach and doing away with the bar exam for students who graduate from in-state law schools. I have gone on record arguing that this proposal is misguided.

But I think that approaches like Arizona which could reduce the burden of the bar exam without eliminating it are worthy of exploration. And Derek Muller has this post noting that California's bar examiners are considering reducing the length of the bar exam from three days to two. Muller notes that this would make the exam less grueling, that those taking the exam would not need to spend as much on hotels, and that this change could cut down on the time it takes to grade exams.

I think that reducing California's bar exam to two days is a very good idea. The idea is not a new one, however, and I am worried that any decision or discussion on the issue may end up being delayed in the same way it was two years ago. My hope is that the continuing criticism of bar exams will prompt the Committee of Bar Examiners to give more serious consideration to the proposal.

University of California, Irvine Law School Ranked 30th by US News

So reports this press release from the school:

The University of California, Irvine School of Law has been ranked by U.S. News & World Report No. 30 out of 198 fully accredited law schools in the country. This is the highest debut ranking of any new law school in the history of the U.S. News rankings. Additionally, UCI Law’s Clinical Program ranked No. 11, and UCI Law scored among the top 10 in student diversity, according to the U.S. News Diversity Index.

The press release also notes several statistics that may be under-emphasized in US News rankings, including Irvine's notable scholarly impact (ranked by one study as 7th among US law schools) and its clerkship placement -- ranking at third behind Yale and Stanford.

Other outlets have coverage on the most recent set of US News Rankings. For opinionated commentary, see Above the Law, and for commentators using this news as yet another excuse to say that law schools are in a "death spiral," see the Washington Post.

Amar and Allard on Reevaluating the Bar Exam

At Justia's Verdict, Vikram Amar has this article discussing the decline in performance of the July 2014 bar examinees relative to other years. Amar also addresses the National Conference of Bar Examiners' [NCBE's] response to this performance decline which was laid out in this memo by Erica Moeser, the president of the organization.

I've blogged about this year's decline in performance yesterday. There, I described the unpleasant situation of California bar examinees who have to read about the nationwide drop in bar exam performance before they have even received word of whether they have passed. 

Here is an excerpt from Moeser's memo where she addresses this decline:

Beyond checking and rechecking our equating, we have looked at other indicators to challenge the results. All point to the fact that the group that sat in July 2014 was less able than the group that sat in July 2013. In July 2013 we marked the highest number of [Multistate Bar Exam, or] MBE test-takers. This year the number of MBE test-takers fell by five percent. This was not unanticipated: figures from the American Bar Association indicate that first-year law school enrollment fell 7% between Fall 2010 (the 2013 graduating class) and Fall 2011 (the 2014 class.) We have been expecting a dip in bar examination numbers as declining law school applications and enrollments worked their way to the law school graduation stage, but the question of the performance of the 2014 graduates was of course an unknown.

Amar argues that Moeser's claim that the July 2014 examinees were "less able" than other groups of students who took the exam was likely a mistake of wording and that a mere decline in law school enrollment cannot adequately explain the drop in exam performance. From Amar's article:

For that reason, Ms. Moeser probably erred (putting aside her choice of language) in trying to offer any explanation for the lower performance; her diagnosis of a “less able” group of takers seems to be, at most, a (limited) diagnosis of (partial) exclusion. In other words, what she knows—or should be able to know—is confined to the fact that the MBE test that was given in 2014 was reliable as compared to prior year tests. Even if this year’s test was no different in substance or administration, Ms. Moeser really has no way of accounting for the lower performance. Certainly her vague implication—that a decrease in the volume of law school applications and graduating students explained the lower score—is open to question. Indeed, a seven-percent reduction in the number of starting law students in the fall of 2011 might suggest that law schools shrank in size rather than lowered their admissions standards. And the comparison of seven-percent fewer incoming students and five-percent fewer MBE takers wouldn’t, without more data, say much. So Ms. Moeser should have said no more than that the test has been examined and validated, and that we need to look elsewhere for an explanation. 

In this regard, [Brooklyn Law School] Dean [Nicholas] Allard is correct that the rest of us deserve to know more details about MBE’s “quality control” processes, to use Ms. Moeser’s term. It’s hard to see why more transparency about the internal test-validating data and techniques that the MBE-makers use would not be a good thing.

Amar is referring to this letter by Dean Allard that responded to Moeser's memo. In that letter, Dean Allard pointed out that graduating from an accredited law school takes a great deal of intelligence and work, that it "defies common sense" that students who have completed three years of law school need to spend even more money on a bar exam preparation course, and that "in short, it is not the students, it's the test."

I have some disagreements with some of Amar's and Dean Allard's remarks. Regarding Amar's article, I don't think that it is possible to interpret Moeser's use of the "less able" label to simply denote that students performed poorly on the Multistate Bar Exam. Moeser clearly refers to the "less able" description as an explanation for the poor performance, so it would not make sense to interpret her explanation in this diplomatic way.

But unlike Amar and Dean Allard, I don't find the "less able" description to be necessarily offensive. Faced with a decline in performance of students across the nation, an obvious potential explanation is that those taking the July 2014 bar exam were less prepared for the bar exam than students in other years. This could mean a number of things -- for example: that they were less intelligent, that their law school education was poor preparation, or that they had less time or intellectual energy to devote to preparing to the bar exam (perhaps because they were simultaneously searching for jobs that are increasingly difficult to find).

Take my opinion with a grain of salt, since I am one of these "less able" students, but I think Dean Allard was overly hasty in taking offense. I agree with Amar and Dean Allard that more research into the issue is necessary, and that Moeser may not be able to conclusively claim that the students are the reason for the poor performance on the exam.

But I think that Dean Allard's response opens itself up to criticism -- especially when he points out that students spend thousands of dollars on bar exam prep courses after taking three years of law school courses. This remark highlights a problem with law school, rather than the bar exam: if law school adequately prepared students for the bar exam, then they would not need to take the bar exam prep course. While I have many good things to say about legal education, and while I acknowledge that the situation is indeed a complex one, I think that Dean Allard's response needed to be more measured in order for it to be more credible.

I agree with Amar that more research into the issue is necessary, but I don't think that Moeser was relying solely on the number of students taking the exam in reaching her conclusions. The NCBE tests its MBE questions by including unscored experimental questions on its exams in preparation for following years' exams. I imagine that the questions used on the July 2014 exam were tested and performed comparably to previous years' questions -- which is one reply the NCBE will certainly be able to make to those criticizing its methods.

There is, however, one feature of this year's exam that may count against Moeser's claim that students were the reason for their own poor performance. Moeser mentioned in her memo that civil procedure will be an MBE exam topic starting in February. During my bar exam preparation course, one of the instructors mentioned that the July 2014 MBE may include test questions for civil procedure in light of its inclusion in future exams. While these questions would be unscored, they would be clearly different from other MBE categories. And if students were not adequately warned about the inclusion of civil procedure test questions in a year where civil procedure was not an MBE topic, these test questions could confound students and lead them to waste time and energy on trying to figure out what MBE category the civil procedure questions fit into. I don't know if it is possible to examine how adequately students were prepared for the possibility of the MBE including civil procedure test questions. But if many students were not prepared, this could be one explanation for the July 2014 exam being an outlier.

One might point out that as somebody who took the July 2014 bar exam, I am in a position to potentially confirm whether civil procedure questions were on the MBE. But while you might think that, I couldn't possibly comment due to the dozens of confidentiality agreements I signed before taking that exam. As far as my own experiences with the MBE are concerned, I'm going to remain silent.

In any event, law school enrollment has continued to decline, so the next several years will bring more opportunities to see whether this declining enrollment is indeed the explanation for falling performance on bar exams. More research is necessary, and the data for that research will gradually become available.