Originalism, Bullshit, and Overconfidence

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

Is Originalism Bullshit?

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

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

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

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

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

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

Robert Natelson

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

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

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

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

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

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

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

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

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

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

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

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

Natelson and Infinite Regress

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

In response, Andrew Hyman conveyed Natelson's thoughts:

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

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

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

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

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

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

Or did it?

Natelson and Hyman Strike Back

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

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

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

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

And so...

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

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

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

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

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

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

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

And so in my article he will remain.

Going on the Academic Job Market - Part 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]

Historical Analysis and Doing Your Own Research

Gregory Ablavsky authored a critical review of Akhil Amar's book, The Words That Made Us. Ablavsky's review was recently published in the Michigan Law Review. Here's the abstract:

This essay reviews Akhil Amar's recent constitutional history of the early United States, The Words That Made Us. In this volume, Amar seeks to offer a "fresh story of America" that provides a "usable past." I argue that the book fails on both fronts. On the contrary, much of what Amar peddles is very old, ignoring generations’ worth of scholarship while parroting a centuries-old nationalist constitutional hagiography. In particular, he believes that constitutional history must be, at core, a referendum on the handful of powerful men dubbed the Founders. His effort to defend them and the Constitution from critics paints him into difficult corners, including endorsing some dubious exculpatory narratives around the exclusion of women, Black people, and Native nations in early America.

One way forward toward a more inclusive, more usable constitutional history, I argue, is in the concept of a "constitutional conversation" that Amar uses to frame his book. In Amar's hands, this conversation becomes a narrow reconstruction of debates among what he calls the "Big Six" Founders. But for a generation, historians and scholars, including many in law schools, have offered a broader vision of the constitutional conversation highlighting how non-elite people, including subordinated groups, accessed and shaped constitutional law. But the work of synthesizing these accounts in a broader constitutional history has only just begun. This work, I argue, will offer both a fuller account of the constitutional conversation and a more usable past for a nation increasingly recognizing that it has always been a diverse and fractious place.

At his Legal Theory Blog, Lawrence Solum has a brief response to Ablavsky's review that includes a lengthy quote from a primary source Ablavsky cites, and the following note:

This is just one passage from a rich and interesting pamphlet, link above in the abstract.

The review itself is worth reading, but the tone is sharp and the substantive analysis of the actual content of the voices that Amar does not take into account is frequently thin. So, read Warren herself. Then track down and some of the other primary sources.

Amar will surely write another book about this period. Wouldn't it be lovely if he were to take up the challenge and write about "The Words That Could Have Made Us?"

Solum is an originalist who argues (like most academic originalists) that the Constitution should be interpreted based on the original public meaning of the text, as understood when the provision at issue was enacted. Solum is also one of the few originalists who've taken implementing originalism seriously, and has written extensively on how interpreters may attempt to derive original meaning. 

Many originalists, however, are more cursory in how judges and attorneys can take on the difficult task of uncovering the meaning of constitutional text written hundreds of years ago, and how the general public (or a reasonable, well-educated reader--there are variations) may have understood the constitution's text. For them (and, even for Solum), the job of uncovering original meaning falls to academics, and courts may then rely on their work.

Take Solum, who does extensive work to set forth a method of "triangulating" results reached through analysis of founding-era documents, historical immersion, and corpus linguistics. And yet, this method is ultimately one for the scholars rather than the practitioners. He acknowledges that in-depth historical immersion is beyond the capacity of judges, attorneys, and clerks, leading him to write:

[I]t seems likely that implementation of the Method of Triangulation will involve the production of originalist scholarship in the academy with consumption of that scholarship by the courts. (p. 1681)

Similarly, in their book, Originalism and the Good Constitution, John McGinnis and Michael Rappaport write that in an ideal originalist world, scholars will take the lead in determining original meaning:

[I]n a world dominated by originalism, academics would work to create the knowledge that would improve the performance of originalist judges and reinforce their inclination to be consistently originalist. (p. 198)

Randy Barnett, another originalist, argues in his book, Restoring the Lost Constitution: The Presumption of Liberty, that the original public meaning of quite a few terms have been discerned through recent legal scholarship. As it turns out, much of that scholarship was written by Barnett himself!

(This last book, unfortunately, is out of my reach as it's buried in a box in advance of a cross-country move. But the pages I'm referencing are 116-117 (of the 2014 revised edition), and I strongly suspect that the footnotes to Barnett's own work reference his writing on the Necessary and Proper Clause and the Commerce Clause).

What does this diversion have to do with the Ablavsky review and Solum's response? According to Solum, readers ought to dig into the primary sources themselves, as Ablavsky's "substantive analysis" of those sources is "thin." To be sure, Solum notes that the review is worth reading. But urging readers to dig into the sources--to "do their own research," as it were--suggests that something is lacking.

If such a label of primary source thinness holds against a twenty-page book review, does the same standard apply to judicial opinions? And, if so, what does this say to originalists' claims that judges can rely on legal scholarship that parses out the original meaning of constitutional provisions? Those books and articles aren't primary sources themselves. So should judges, like the readers of Ablavsky's book review, do their own research into the primary sources as well? Or are we to expect a lower standard of investigatory rigor from judges (whose decisions affect not only the parties before them, but all others affected by the constitutional provision at issue) than from legal academics?

All of this illustrates the bind that would-be originalist judges are in when attempting to determine original public meaning. These judges don't have as much time as legal scholars--they have non-constitutional cases to resolve, and dockets to clear. Resources before them are thin: the parties' briefs will be far from unbiased, and the same will likely be true of many amicus briefs, many of which are ultimately drafted by attorneys seeking to tailor their historical arguments and evidence to the interests of the clients they represent. And yet, if we take these circumstances into account and give judges the go-ahead to rely on secondary sources (many of which are authored by legal scholars rather than historians and edited by non-expert law students), we expect a lower level of historical rigor from the courts that end up making the law. It seems strange to expect less of those whose determinations end up making the difference.

As Ablavsky's review demonstrates, even experienced, prestigious legal scholars may overlook large swathes of relevant historical evidence when writing about the Constitution. This risk is amplified for judges--whose primary resources for determining meaning are the goal-oriented submissions of interested parties. I argue (along with Al Hiland) at length elsewhere that this poses serious problems for originalist theory. Amar's book, Ablavsky's review and Solum's response are further illustrations of this issue.

Appointing Expert Historians in Second Amendment Cases

Second Amendment law is in a strange place right now. The Supreme Court's ruling this past summer in New York State Rifle & Pistol Association, Inc. v. Bruen struck down New York's licensing scheme for the concealed carry of firearms. More dramatically, though, the opinion rejected a consensus approach that lower courts had adopted to test the constitutionality of firearms restrictions. Rather than subject these laws to varying degrees of scrutiny (determining the government interest at issue and whether the law was sufficiently tailored to achieve that interest), the Court instead held that the constitutionality of gun restrictions was solely a question of history and tradition:

When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's "unqualified command."

I've critiqued this approach to the Second Amendment at length here. To summarize my primary concerns: a focus on history and tradition forces courts out of their legal wheelhouse and into unfamiliar territory of undertaking rigorous historical analysis and attempting to analogize it to the modern day. The Bruen Court provides little guidance on how to analogize historic laws, simply stating that courts must evaluate whether they result in similar restrictions to the law being evaluated, and whether they were motivated by comparable concerns. Questions over how how far analogies may extend (e.g., how much support partial restrictions are due), how many laws are sufficient to establish a tradition, how old or recent laws must be to be relevant, are all unresolved and subjected to inconsistent analysis in the Court's own opinions.

My criticism of the history and tradition approach aside, what are lower courts to do now that this is how Second Amendment analysis is to be done. A few judges have suggested that independent experts on history may provide guidance, acknowledging that courts and attorneys lack the expertise to do so. Judge Carlton Reeves, for example, ordered the parties to a dispute over the constitutionality of a gun restriction to indicate their position on whether a consulting expert should be appointed. As it happens, both parties opposed the notion, with the United States raising concerns over how expensive such an approach would be if applied on a wide basis. This concern is unconvincing. The Supreme Court has ruled that gun restrictions must now be evaluated against history and tradition, and judges and lawyers tend not to be trained historians. If engaging in rigorous and accurate analysis is the goal, the Court has effectively required the costly measures required to accomplish correct results.

At the Volokh Conspiracy, Stephen Halbrook argues against the employment of historical experts to advise courts on the historic landscape of gun restrictions in Second Amendment cases. There are two focal points of Halbrook's arguments. First, Halbrook raises concerns over biased experts. Second, Halbrook argues that it is courts that are required to determine what the law is--not experts, and that appointing experts would upset this balance. There are problems with both of these arguments, and Halbrook's argument as a whole is a good example of those arguing for purportedly neutral approaches to constitutional interpretation doing so out of a desire for specific outcomes rather than accuracy or neutrality.

Halbrook starts by with an anecdote of a scholar who engaged in fraudulent Second Amendment research--suggesting that experts appointed by courts may end up engaging in similar analysis:

Turns out that Michael A. Bellesiles, author of Arming America, fabricated sources, distorted facts, and committed fraud. The Bancroft Prize was rescinded and Emory University fired him. But some judges, professors, and activists had welcomed his thesis with open arms because he attacked America's "gun culture" and derided the right to bear arms. A Ninth Circuit opinion relied on him in support of its "collective rights" holding about the Second Amendment, but the embarrassing cite was removed after the scandal broke. Until then, Bellesiles would have been the perfect candidate for a court to appoint as an "expert" on history.

As for experts who have not engaged in such flagrant misconduct, Halbrook suggests that they are almost just as bad:

Judge Reeves went on to quote Patrick Charles as stating that adherents of the Standard Model of the Second Amendment, who read the right to have arms as an individual right, as "fail[ing] to adhere to even the most basic norms of historical objectivity and methodology." And he quotes Saul Cornell, writing in Slate, accusing the Court in Bruen of having "cherry picked" the historical record. Both Charles and Cornell are partisan historians who oppose Second Amendment rights in their writings and amicus briefs.

. . . 

If the parties do submit expert reports in Second Amendment cases, judges should treat them for what they essentially are—amicus briefs. And courts should be particularly wary of "experts" whose views have repeatedly been rejected by the Supreme Court. If the expert joined an amicus brief supporting the government in Heller, McDonald, or Bruen, that is a pretty good sign the expert's views are out of step with the Supreme Court.

Halbrook does not take a similarly critical approach to how courts are supposed to analyze history and tradition without appointing experts. Were he to do so, his argument would fall apart. Halbrook's critique is based on the possibility that experts will engage in incorrect or biased analysis. But this possibility becomes a guarantee absent expert analysis--in which only the submissions of attorneys advocating for their clients form the basis of what is supposed to be a thorough and balanced analysis of the relevant history.

Additionally, Halbrook's view of what would render an expert's analysis untrustworthy is revealing. He suggests that any analysis that is out of step with the Court's recent opinions on the Second Amendment are unreliable--particularly in the last paragraph of his analysis. It seems that Halbrook's metric for accurate historical analysis is what the Court has declared the history to be, rather than what the history actually was. Under such a formulation, expert opinions are only reliable to the extent that they comport with the rulings of the non-historian members of the Court's majority in prior Second Amendment cases. This is not only a bonkers approach to evaluating historical analysis, but it is designed to guarantee outcomes overturning restrictions on gun possession.

What about the second argument, that it is the province of the Court, rather than experts, to determine what the law is? Halbrook writes:

Both Heller and Bruen came to the Supreme Court on decisions granting motions to dismiss. They were decided on the basis of the complaints and the parties' briefs with no factual development. The Supreme Court was urged to decline to rule on the ultimate merits in both cases but rather to send the cases back down to the lower courts for more development—in Heller by the U.S. Solicitor General and in Bruen by the N.Y. Attorney General. But the Court rejected the suggestion in both cases, and instead conducted its own analysis of the relevant historical materials to determine the scope of the Second Amendment.

This was proper because historical information does not consist of the types of facts that are determined in a trial through competing witness and expert testimony. In legal jargon, historical facts are "legislative facts," not "adjudicative facts." As Judge Posner put it in Moore v. Madigan (7th Cir. 2012), striking down Illinois's ban on carrying firearms outside the home, "Only adjudicative facts are determined in trials, and only legislative facts are relevant to the constitutionality of the Illinois gun law." That is going to be true in pretty much every Second Amendment case after Bruen, as the historical inquiry the courts are required to undertake is purely a matter of legislative facts. As Bruen noted, the historical inquiry "that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge."

Halbrook and the Court may deem historical facts as legislative facts that need not be developed by the parties, but this bare proclamation does not undo the reality that history, tradition, and the relevant context can be complicated and require a fair amount of work and training if accurate results are to be obtained. For example, the Bruen majority distinguished England's Statute of Northampton as largely irrelevant as an analogous historical restriction on the carrying of firearms. One of its bases for doing so was to note that the statute, in its early days, applied to the carrying of armor and larger weapons like halberds. Knives, which the Court contended were most analogous to modern day handguns, were not similarly restricted. In doing so, though, the Court overlooked a great deal of relevant historical context. Knives, while sometimes used for combat and self-defense, were also highly functional--especially in the medieval era. As an example of one overlooked function, the Statute of Northampton was enacted hundreds of years before the fork was introduced to England--before then, knives played a central role as a utensil. The Bruen majority appears to have overlooked all of this context, resulting in a misleading claim of a close analogy between handguns and knives. (For citations and other examples of the Bruen Court's failure to account for the complexity of historical analysis, see my article here).

This is only one example of how it is misleading to treat the original meaning of constitutional provisions, or the history and tradition of gun restrictions, as nothing more than legislative facts. To engage in historical analogizing, one must be aware not only of the text of prior laws, but the context of their enactment, how they were applied, and what their text meant to those who were alive at the time. This is a complex, fact-intensive undertaking, and simply declaring this to be a simple task that judges can undertake at the pleading stage does not change this. Instead, such arguments and proclamations are a tactic designed to draw attention away from the complexities of the approach the Court has adopted.

Arguments like Halbrook's should raise alarms to anyone who is seriously committed to the task of interpreting the Constitution based on its original meaning or in a manner that aligns with history and tradition. Under the guise of neutrality and the illusion of simplicity, advocates like Halbrook urge a method of interpretation that is designed to accomplish specific policy outcomes. The history and tradition approach has many problems. But if it is the approach that courts must take, there may be ways to make it better. Appointing experts is one such approach. Those who oppose this proposal are not concerned with accuracy--instead they treat the Court's precedent as historical gospel and seek only to perpetuate desired policy goals. 

Strategic Originalism

About a week ago, Ruth Marcus at the Washington Post wrote an essay attacking originalism. Her critiques are varied and are digestible versions of arguments made at length in the academic literature. Those looking for an approachable version of a variety of arguments critiquing originalism would do well to read her entire essay.

At the National Review, Ed Whelan responds to Marcus's criticism of originalism. Both essays involve multiple levels of critiques and responses, and I won't rehash the line-by-line debate. Instead, I will first address an exchange over whether originalism is guilty of making false promises about the objectivity of the Constitution's meaning and how Whelan's response fails to engage with Marcus's critique. I then address a brief response to the exchange by Michael Ramsey which exemplifies a common misconception of the implications of progressive originalist scholarship, From there, I address the question of whether the strategic use of originalism by progressive scholars and commentators is worthwhile. 

Originalism and Clear Answers

In Michael Ramsey's summary of Whelan's response to Marcus, he highlights the following portion of Whelan's article that he thinks calls out the "most important" flaw in Marcus's critique:

Marcus contends that originalism “offers the mere mirage of objectivity and therefore of constraint” and is a “fundamental[ly] futil[e]” enterprise. She quotes with approval the notion that “For most constitutional provisions, there is no ‘original meaning’ to be discovered.”

I have no quarrel with the proposition that there are many constitutional questions to which originalism cannot provide a clear answer. Nor, I think, do other originalists. But that is no reason to dismiss originalism when it can provide a clear answer. And on most of the hot-button questions of the past several decades (e.g., abortion), originalism clearly rejects the favored progressive position.

Originalists recognize the incompleteness of originalism as a judicial methodology, and they differ on important questions such as what level of certainty as to constitutional meaning is needed to decline to enforce a statute. I, for example, have defended a presumption of constitutionality, while many libertarians propose a presumption of unconstitutionality. There are also lots of methodological issues on which originalists hold various views. Marcus could fairly have cited this lack of consensus as a flaw in originalism.

It's worth including the precise language of Marcus's original argument that prompts these responses:

The shifting forms of originalism — from trying to discern the intent of the document’s framers, or maybe those who ratified it, to hunting for the original meaning of the words they used — suggests the fundamental futility of the enterprise. “For most constitutional provisions, there is no ‘original meaning’ to be discovered,” Berkeley law dean Erwin Chemerinsky writes in a new book, “Worse Than Nothing: The Dangerous Fallacy of Originalism.” Rather, he says, “there is a range of possibilities that allows for exactly the kind of judicial discretion that originalism seeks to eliminate.” The founding-era documents are incomplete and contradictory; there are many constitutional questions for which they supply no answer.

Whelan's response fails to engage with Marcus's original point. While Whelan concedes that there may be instances where originalism doesn't provide a clear answer, it is not clear how much of a concession this is. And, two sentences later, Whelan seems to limit the scope of his concession so that it does not cover "most of the hot-button questions of the past several decades." For these, Whelan claims, "originalism clearly rejects the favored progressive position."

In my not-so-distant prior career as a litigator, the word "clearly" is something I always searched for when I was preparing an opposition or reply to an opposing party's brief. This term tended to signal the most dubious claims. This is the case here. In a single sentence, Whelan waves aside libraries' worth of debate between legal scholars and historians over the original meaning of constitutional provisions at the heart of disputes over the last few decades. Whelan also fails to engage with the deeper point: history is a complex undertaking, and a thorough investigation into the original meaning of the Constitution may reveal that there is no clear original meaning. If this is the case, originalism does not seem appropriate to resolve a dispute where the Court must rule on a single meaning.

Marcus also critiques the methodology of corpus linguistics, in which lawyers and judges search databases of documents from a particular time period to determine how words and phrases were commonly used. Her broader point is that the methodology is an example of her overall argument: that uniform historical meaning is uncertain and potentially nonexistent. Whelan also fails to engage with this, focusing instead on Marcus's examples of how corpus linguistics being misapplied. He argues that this is an argument "for using corpus linguistics cautiously, not an argument against originalism." This ignores the larger point that corpus linguistics demonstrates originalism's indeterminacy. But to respond directly to Whelan's assertion, I've argued before that it's relevant to point out instances where corpus linguistics is misapplied. If this is a common mistake, then it risks a great deal of shoddy analysis under the guise of originalism--something that should raise more concern for someone like Whelan than he expresses in his response.

(This same point applies to theories of interpretation more generally as well, as I've begun to argue here, but I will leave that point aside since this post is already becoming too long, and because I'll be saying much more on this in a future article.)

Strategic Originalism

The last issue I want to address in this already lengthy post--and the issue that inspired me to write this post in the first place--is prompted by the remark that Ramsey includes after quoting Whelan's response to Marcus:

I agree with all of this, and I'd add that many center-left commentators and legal scholars are very willing to make originalist arguments when they perceive that the original meaning helps their preferred view (as it sometimes does).

Ramsey does not explain the implications of his remark, but he seems to be suggesting that those on the left are conceding the legitimacy of originalism as a theory of interpretation by resorting to originalism when it serves their desired political ends. This inference is dubious because originalist arguments may be made in a strategic manner to appeal to a conservative Court. Those making the arguments may not agree with their methodology, but such arguments may have a slightly better chance of getting the Court's attention than a straight up critique of the Court's interpretive methodology.

In the past I tended to think that progressive originalist commentary and scholarship was of little use and caused more harm than good to progressive policy objectives. Ramsey's point illustrates one of the main reasons I held this view: progressive scholarship employing originalist methodology could be characterized as legitimizing originalism. I did not agree with this inference, as I believe it is not only possible, but common, to assume certain conditions for the sake of argument and then to argue against a certain conclusion on those terms. But, as Ramsey's remark here demonstrates, this distinction is frequently overlooked for the purpose of achieving a "gotcha" argument against progressive scholars and commentators who also disapprove of originalism more broadly.

Moreover, I believed then (as I do now) that history and tradition is often skewed against progressive outcomes. Many of the Constitution's framers owned slaves. Women's rights were limited at the time of the Fourteenth Amendment's passage, and many legal regimes denied women the legal status and abilities held by men. Originalism may not provide clear answers on the meaning of vague and ambiguous constitutional provisions. In the face of this uncertainty, interpreters may give history and tradition an outsized role in constitutional interpretation. Indeed, the Court seems to have leaned into this approach in its last term, as I detail here. In cases involving the interests of women, racial minorities, and other groups who have historically been subjected to oppressive legal regimes, an approach grounded in history and tradition will tend toward negative outcomes for these groups. This isn't a fair playing field, and originalist suggestions that progressives simply must engage more at the level of historical debate are therefore unconvincing.

Despite all of this, my views today of the value of progressive originalist arguments and scholarship are now more nuanced than they once were. While it is easy for a scholar or commentator to take a stance on little more than principle, considering how commentary and scholarship may ultimately be employed in practice remains important. Broad theoretical arguments have their place: they may inform the public and politicians of the state of constitutional interpretation and, to the extent that things are unsatisfactory, provide arguments for reform. 

But scholars and commentators shouldn't forget that there are attorneys who need to make arguments before the Court--a Court with a supermajority of justices who are either self-proclaimed originalists or who have at least signed onto opinions written in a purportedly originalist manner. These advocates before the Court don't have the luxury of high-level theoretical arguments. A claim that originalism is a flawed method will fail to move these justices. Instead, these advocates' best hope of success (admittedly, a very slim hope) is to argue on the justices' level. It is here that progressive originalist scholarship and commentary may be of use. A cottage industry of originalist scholars are at work parsing out the original meaning of constitutional provisions. Maintaining an ideological balance in these scholarly endeavors makes it less likely that the output of this area of legal academia will remain politically one-sided. While originalist scholarship that reveals outcomes that align with progressive policy goals may not end up convincing conservative justices, it at least lends additional support to advocates arguing before them.

Circling back to Ramsey's point about center-left commentators' and scholars' originalist arguments: these scholars may well disagree with originalism as an interpretive methodology but acknowledge the practical reality that those arguing before the Court need to makes arguments at the originalist level. Researching, writing, and commenting on historical evidence of original meaning that favors progressive outcomes is therefore not a concession that originalism is a good, or even legitimate, approach to interpretation. Instead, the work is motivated by a pragmatic acknowledgment of the realities of litigating before a conservative Supreme Court.

One may object and argue that I'm claiming that scholars are hacks. I seem to be assuming that conservative scholars will seek out conservative originalist conclusions, while progressive scholars will strive for liberal originalist conclusions. This seems to require an unrealistic amount of politically motivated academic dishonesty. Such an objective does not accurately characterize my views.

First, political bias in research outcomes will likely be unintentional in many instances. Many (though not all) legal scholars lack sufficient expertise as historians to engage in the rigorous and technical investigation necessary to accurately survey historical evidence. As a result, unconscious biases may color their analysis. These range from nonpartisan biases of applying modern legal frameworks or usages to the reading of historical texts. But they may also include interpreting a vague or ambiguous piece of evidence in a manner that ends up supporting a desired conclusion. 

Second, journals themselves may encourage conclusions that align with particular political ends. Some law journals pride themselves on publishing conservative scholarship. Others are the opposite, encouraging submissions that align with progressive policy positions. As a scholar's investigation begins to uncover evidence that leans in a certain direction, that scholar's desire to be published in one of these journals, or to associate with a particular audience, may end up motivating the scholar to seek out more of the same evidence rather than taking a more balanced approach to the investigation.

Third, scholars who are directly motivated by their political goals may end up implementing these political preferences in a manner that does not involve intellectual dishonesty. A progressive professor, for example, may come to believe after some research that the original meaning of a constitutional provision leads to conservative outcomes. The professor may decline to continue that research or publish the results of that investigation in the interest of avoiding giving ammunition to political opponents. Such a strategy involves political motivation and may raise questions over intellectual honesty and selective publications, but it seems distinguishable from a scholar who ignores contrary evidence or makes false claims in support of a desired conclusion.

My opinion of progressive originalist scholarship and commentary is nuanced. While I have come around to acknowledging its importance for those arguing before the Court, I suspect that even accurate and exhaustively researched progressive originalist work makes little difference to the conservative justices and may be crowded out by shoddy work written and published by those lacking sufficient historical expertise. Additionally, remarks like Ramsey's suggest that this work may be coopted to support claims of progressive acceptance of originalist methodology. Despite all of this, strategic originalism has its place in progressive legal scholarship and advocacy. And while this work may not influence the justices presently on the Court, it may serve as a basis for changing Constitutional law in the decades to come.