AI Disclosures and the Presumption of Good Faith

The summer submission season is fast approaching. Some journals have jumped the gun and are opening well in advance of August 1, throwing professors' summer plans into disarray. The Virginia Law Review is one such innovator/offender.

Notably, the Virginia Law Review is requiring that authors disclose authors' "substantive" use of AI in the drafting process. They elaborate:

By “substantive,” we mean the use of AI to support an author’s factual assertions, legal claims, or overall argument, such as generating relevant cases, writing or revising textual sentences, or drafting parentheticals. The use of grammar or spelling assistance services such as Grammarly or spell-checkers is not considered “substantive.”

The law review "emphasize[s] that the use of AI is not disqualifying," but urges authors to "err on the side of disclosure." The law review reserves the right to rescind publication offers if they discover undisclosed AI usage.

In my unscientific observations of reactions to my post noting this new requirement and others' posts, I see a few concerns bubbling up. Some are (rightfully) worried that if many journals take a similar approach, it may become confusing and difficult to fill out all these disclosure forms. Virginia's, for example, was included in the submission guidelines that one can click to see on Scholastica, but it required an additional step by submitting authors to see it was there and it may be missed in the high-volume law review submission game.

Others seem worried over what level of detail detail is required in the disclosures, though the guidelines go a long way to specify what uses do not count and provide sample disclosures for authors to reference (and to emphasize that, when in doubt, more should be disclosed).

But the concern that got my attention is that authors will simply circumvent the disclosure by dishonestly claiming they did not use artificial intelligence to assist in the research or drafting of their scholarship. The disclosure is a simple Google form, and it's easy enough to state (as I did) that the author did not use AI in the process of researching and writing their scholarship (as I did not--more on why I did not here). The objection seems to be that authors could use AI to write their scholarship, make sure they've covered their tracks in the final work product, and falsely claim that no AI was used. The disclosure requirement, as a result, makes no difference.

I find this worry interesting for several reasons.

First, it seems to be at odds with a presumption that one's scholarly interlocutors are acting in good faith when advancing their claims and arguments. There have been plenty of accusations of bad faith flying around lately--particularly in the birthright citizenship space. Amidst the heated rhetoric, there have been occasional claims that the other side is acting in bad faith. They don't REALLY think that the Constitution supports their claims and are, instead, making arguments to get attention, judgeships, or sweet, sweet, Supreme Court citations. In response, those accused (and others beyond the debate) tend to object to these accusations of bad faith. The assumption that one's scholarly opponent is arguing in good faith is a crucial norm of the profession. If a substantive debate is to be had, one must treat one's opponent's arguments charitably. Accusations of bad faith circumvent genuine discourse and turn the endeavor into a shouting match.

I won't express any thoughts on the substance of this good faith debate (although I certainly have THOUGHTS). But this call to respect the motives of ones intellectual opponents isn't new, and underlies longstanding calls for charity when responding to scholarship with which one disagrees.

If scholars are operating under such a strong presumption of good faith, it puzzles me why so many assume that AI disclosure measures will be so easily and widely circumvented. Doing so involves lying to the editors. The black-and-white nature of the falsehood these critics foresee is arguably more profound than advancing arguments in bad faith--at least those arguments may still be colorable or have something in the way of merits (again, no opinions on those arguments expressed here; despite my THOUGHTS).

It seems like the longstanding presumption of good faith and charity disappears when we start to talk about AI disclosures. This raises questions over how seriously we take this presumption and whether its applications are limited. Perhaps we should assume that scholars are entirely honest in the arguments they (or their AI companions) put forth, but they're a pack of lying scoundrels when it comes to communicating with law students. I'd like to hope this is not true.

Second, expressions of concern over AI disclosure policies seem to assume there is some level of shame in using AI--or at least a perception that one will be shamed should their AI usage come to light. Avoiding shame explains why people might be willing to lie to law review editors. Folks typically don't lie without a reason. That reason might simply be the love of the game--which I respect in some contexts. But here, the motivation to circumvent disclosures seems to be the worry that one's work will be thought of as lesser because one used AI to write it.

I think this concern is perfectly reasonable. It is, after all, consistent with my own instincts. If I am given a paper to read, and I am told that AI was used to write it, I will likely question whether reading the paper is worth my time. After all, it wasn't worth the time of the author to write. 

(There are of course, rejoinders that the substance may be fine. While this back-and-forth isn't the point of this post, I'll briefly note that these rejoinders speak past my objections: my distaste is based in the disrespect the person presenting me with the piece is showing me by expecting me to take time on something a machine spit out for them. The substance is immaterial to this breach of etiquette.)

To the extent that critics assail the Virginia Law Review's demand for disclosures out of a fear of this shame, there is a glimmer of hope that AI usage might not catch on as readily as its advocates suggest. A norm of respect for each other's time and insight is central to a community of scholarship. It wasn't easy for me to make it into the legal academy, and I confess I feel dismayed to see would-be colleagues turning their time and attention over to tinker with robots and glorify their outputs rather than engage in genuine conversation and debate. If people are ashamed of AI usage, though, it suggests that people recognize the loss of community and respect that occurs when genuine work is replaced by efficiently generated output. I'm not at all certain that the fear of this loss will keep everything from devolving into a dystopia where everyone uses AI to summarize everyone else's AI-generated output. But it gives me some hope.

Third, as much as critics claim that the Virginia Law Review's policy is easy to circumvent, I don't think this is entirely correct--at least for most authors. Even if we're willing to throw presumptions of good faith out the window when debating AI disclosure policies, circumventing these policies requires lying to law review editors. Lying isn't easy for most people. Those who seek to misrepresent their level of AI use must write out and submit falsehoods to the time-pressured, overworked student editors who will be reviewing (and maybe even editing!) the submitted article. False statements may be physically easy to write and submit, but I expect that doing so over and over again may begin to take a mental toll.

Perhaps fear of this mental toll will deter would-be wrongdoers from dishonest disclosures. More pessimistically, it may at least cause them some discomfort and heartburn, which is a bit of comfort for those of us who are dissatisfied with the dystopian, automated world that seems to be forming. The true psychopaths among us will lie away with abandon, but what else is new? 

Maybe I'm wrong. Maybe the bad habits we've developed over years of playing the submissions game have caught up to us. Authors submit articles to journals in which they know they'll never publish--using the resulting acceptances as a means to an expedite. Editors respond with form rejection letters that contain no engagement or explanation of the decision. After years of enduring and perpetuating these little moments of disrespect, maybe it makes sense to expect that authors will be willing to pick up one more nasty habit in the interest of getting ahead.

I'm not sure how to respond to such a pessimistic vision other than to advocate for a different way of doing things and to act accordingly. I'm therefore in favor of Virginia's policy requiring disclosures, and I hope more law reviews take a similar approach. I'd love to see these forms integrated into Scholastica (perhaps in a manner similar to how Scholastica automatically requires anonymized submissions for journals with anonymous submission policies). I'll fill these forms out with ease as I continue to expend exponentially increasing effort to avoid generative AI in all its pernicious forms. And I'll hold out hope that others will do the same.

The Law Review Submission Process: Tips, Tricks, and Quandaries

You hear that outside? Those fireworks mean that we're already into July and the summer submission cycle is less than a month away!

For those writing legal scholarship, it's time to start polishing, revising, or (if you thrive under pressure) writing. Law journals open for their summer submission cycle around the beginning of August (though some upstarts like the Yale Law Journal open earlier). Before long, the game of submissions, expedites, and email refreshing will begin.

This post addresses the law review submission process--focusing on strategies, tips, and related debates over the best approach to securing a good placement. Unlike some of my earlier discussions of the law review submission process, I'll steer clear of whether it's good or bad (though I do think it can be less terrible with a bit of effort). Instead, this is written with the status quo in mind, and how authors can best play the game under the existing rules. 

All of this is based on my own experience--largely in the last few years of submitting. While I haven't been in academia all that long, I've written a lot during that time on a variety of subjects. This includes submission seasons when I've submitted quite a few pieces at once--giving me the opportunity to compare how articles on different topics are treated by journals during the same cycle. It's not an experience that I recommend, unless one wants to multiply the stress level of a single submission by however many articles that are out in the mix. But it's given me some insight!

When to Submit?

One endless debate among authors is when one should submit to law reviews. Should authors give up on summer submissions and wait until the Spring? Should authors submit on the first day the cycle opens, or should they wait a week or even two?

On the spring vs. summer debate, I've had decent luck with summer submissions. Those who claim that August is a hopeless time for placements exaggerate. Still, journal space is more limited in the summer, and some journals don't even open at all. Even journals that proclaim to hold robust summer submission seasons tend to accept a strong majority of articles in the spring cycle. Authors shouldn't count the summer out--but those who don't find placements in August would do well to resubmit in the spring. 

As for whether to submit on the first day of the cycle versus submitting later, there's certainly a case for submitting as soon as possible. Most journals accept submissions on a rolling basis, and once the volume is full, they're done. Journals also tend to seek some diversity in subject matter. For example, once they've accepted one or two criminal law pieces, they're unlikely to accept additional criminal law articles absent exceptional circumstances. All of this suggests that submitting sooner, rather than later, is ideal.

Yet the drawback to immediate submissions is the danger that one's piece will be lost in the shuffle of all the other authors who know this and are following the same strategy. Law review editors get hundreds, sometimes thousands, of submissions. These submissions tend to cluster around the opening of the submission season, meaning that an early submission may get buried in editors' Scholastica inboxes. Because of this, there may be an edge to submitting a week, or even two weeks, after the season opens to get to the top of the inbox.

I don't think there's a correct answer here. Some journals may divvy up all submissions as they come in and hold off on new submissions until older ones have been reviewed--removing the advantage of getting to the top of the inbox with a later submission. Other journals might not even bother to look at a piece until it's been accepted elsewhere. All of this complicates the picture. For what it's worth, if I have a piece that's ready to go on day one of the submission season, I'll usually send it out that day.

Still, it may be best to submit earlier in the summer cycle (August 1 through September) than the spring cycle (February 1 through March/early April). In the spring, most journals are opening new volumes and have more space to play with, and will therefore likely give more offers than they are filling the spots that remain in the summer. Because those submitting in the summer are competing for fewer spots in fewer volumes, getting in early may be better, as journals will likely close after a shorter period than they do in the spring.

What to Submit?

I attended a webinar hosted by the Yale Law Journal yesterday evening. Much of the advice they gave was in tension with other pointers: Submit early!--Or not! Avoid too much literature review!--But put in a good deal of effort situating your contribution in the existing literature! The mixture of platitudes and contradictions motivated me to write this post, if only to demonstrate that it's possible to say something concrete and helpful about the submission process.

I mention this because one of the big inconsistencies had to do with article polish. The editors repeatedly suggested that a piece being polished or publication-ready was less of a priority than explaining a piece's novelty or importance. And yet, the editors also advised that it would probably be worth submitting a piece a few days later in order to get the piece polished and finalized.

When submitting to journals, most authors (at least those who aren't Fancy) should treat the editorial process as a search for excuses to reject the piece. Journals have a limited number of spaces to fill (particularly in the summer), and they receive thousands of submissions. This means that an editor might seize on any number of reasons to reject a piece and call it a day. A section or two is underdeveloped? Footnotes missing or incomplete? Typos all over the place? All of this might be enough for an editor to choose any number of alternative articles instead.

An article will never be perfect. It's best to get it to the journals sooner, rather than later. Still, authors would do well to give the piece the appearance of polish before submitting. Do a few readthroughs to get rid of the obvious typos. Get all the footnotes in, or, at the very least, avoid [cite needed] or blank footnotes at all costs. The former approach is preferable to the latter, as blank or incomplete footnotes are more obvious issues than absent footnotes. As for formatting and Bluebooking, make your footnotes look good--within reason. Italicize the titles, small-caps the journals, and you're pretty much all the way there. The minutiae probably won't make much of a difference, but the article needs to at least look like it's ready to publish if one is to minimize easy opportunities to reject the piece.

Article length is also a topic of discussion--sometimes heated. Editors tend to recommend that articles fall between twenty and twenty-five thousand words. Thirty thousand is likely too much. This, of course, is often inconsistent with what top journals publish--much of which is well beyond these stated limits. But, as with article polish, exceptions to the rule are often reserved for those prestigious enough to get away with it. I tend to aim for 25K as a maximum, and 20K as a minimum. I suspect that authors can get away with submitting articles as low as 15K at most journals, though landing closer to 20K is ideal. Most articles likely don't need to be this long, but this is the game we play. And things are at least better than they used to be.

How to Submit?

A few years ago, my submission strategy consisted of submitting to the top twenty-five or so journals I hoped to place with, then sending out further waves of submissions if I didn't get any hits. Inevitably, I would end up submitting to far more than my initial, conservative set of journals before I got any offers (though I could sometimes end up with an offer from one of my top picks through the expedite process).

Why this approach? At the time, I was a practicing lawyer and had to pay for all my submissions. To be sure, submissions were cheaper then (I think it was only six dollars per submission rather than the current $6.60 or whatever it is now). I hoped that a limited set of submissions could save me money and end the process quickly if I happened to catch the attention of one of my most preferred journals.

I don't do this anymore. To start, most (but not all!) of my submission fees were covered by my institution once I entered academia. Most professors (or visiting professors and fellows) at law schools have their submission fees covered, in whole or in part. This makes it easier for authors to submit more articles to more journals.

More importantly, though, I got the sense that many journals--particularly those that are more highly ranked--tend to prioritize those articles that already have an offer elsewhere. These journals get so many submissions that the expedite process becomes a virtual prerequisite for an editor to consider the piece, as this brings down the number of submissions to a manageable amount (and those submissions have deadlines by which they must be reviewed). Indeed, this is how things tended to go when I was on law review. The bulk of submissions I reviewed had pending offers, though each of us on the Articles board were required to look at several pieces each week that had not been accepted elsewhere.

If journals (particularly top journals) won't bother to give a piece a read until it's got an offer somewhere else, submitting only to those top journals early in the process is a near-guarantee that the piece won't get reviewed. Maybe you'll get lucky (or maybe you'll make your own luck through institutional prestige and name recognition). But for the rest of us unlucky folks, I think the best strategy is to at least submit to a range of journals right off the bat--preferably a fairly large number of journals if doing so is financially feasible. Doing so increases the chance of a relatively early initial offer and generates the urgency of a deadline for other journals that might not even otherwise look at the piece.

Dealing with Silence

Every submission cycle, I see at least one law professor post about how editors are far more silent than they've been in years past. I'm convinced that this isn't actually the case. Folks tend to recall prior submission seasons through a post-offer and publication lens. From this perspective, the endless days of unresponsiveness fade away and are overshadowed by the triumph of the offer and the stressful chaos of the expedite process. 

I've submitted a lot of pieces in the last few years. I also submitted a flurry of articles over a decade ago when I was just out of law school and before legal practice attempted to stifle my scholarly inclinations. From this admittedly anecdotal perspective: it's always been this bad! Silence is consistently the most common response to my scholarship, and I haven't noticed any increased lack of responsiveness as the years go by.

Even so, law journals' failure to respond in any way to submissions tends to hit me as more demoralizing than rejections. A rejection at least means that someone's looked at the piece and taken the time to consider it at some level. Silence is mysterious, agonizing, and infuriating. The silver lining? Rejections are preferable to nothing--so cherish each one!

Here's a trick that I recommend to folks whose pieces have been met with silence--particularly a prolonged silence after a few initial rejections. After about three weeks, use the "start a conversation" option in Scholastica to send a mass message to all journals where your piece is still pending. Notify them that the piece is still available, give a BRIEF summary of the contribution, and invite any questions the editors have. I've done this several times, and it always prompts a few initial rejections (indicating that it at least got in front of some editors' eyes), and often leads some editors to give me an update on the review status. Remember--editors are getting a lot of submissions, and pieces tend to get buried in editors' inboxes. A gentle reminder reminds editors of your submission, and might be the prompt needed to get that review (and, perhaps, the offer!)

The Expedite Game

Once an article gets a publication offer from a journal, the next step is to notify other, higher ranked journals of the pending offer and deadline. This "expedite" request tells these other journals that the piece is serious enough to have gotten an offer elsewhere, and that there's now a time limit on when it needs to be reviewed. Expedites can be powerful--a piece that's been met with crickets for weeks might suddenly get a flurry of offers once the other journals are notified. And, as I've mentioned already, some journals likely won't even look at the piece until they get an expedite request.

Once you have an offer, to whom should you send expedite requests? I've always sent the request to every journal with which I'd rather publish--though I move at least a few (or a few dozen) steps up the rankings list when doing so. Rejecting an initial offer for another journal ranked just a spot or two above is rude--though this may not hold as true at the top of the rankings list. With that wrinkle aside, though, my expedite range is expansive, as I include the top-ranked journals in each expedite request.

Other folks I've worked with limit their expedites to journals a certain range of rankings above the accepting journal. As the thinking goes, if they get a further offer, they can then bounce it up to a higher set of journals, and keep doing so until they've got Harvard, Yale, and Stanford in a bidding war. There's some sense to this--after all, will an alert that an article has an offer from a journal ranked in the 200s mean all that much to a top-ten publication? 

Still, I think my more liberal approach to expedites has enough advantages. To start, the expedite performs a function of cutting through the noise of submissions--it's an alert that reminds editors that a piece is in their inbox. Additionally, I suspect that multiple expedite notifications on a piece signal a higher degree of interest by other editors. In choosing to review an expedited article, and editor might prioritize the article that's gotten three offers rather than one. Without those expedite notifications, however, this information goes uncommunicated. Finally, it's my understanding that many journals tend to give shorter deadlines to respond when making offers on pieces that have been expedited. Authors who expedite to everyone, and then get a short deadline on a resulting acceptance, won't be notifying editors at the higher-ranked publications of a pending offer for the first time when this happens.

As a brief note on those offer timeframes, the standard deadline to accept an offer in the past few years seems to be one week. This is a shift from when I was submitting pieces about a decade ago, when two-week deadlines were far more prevalent. Still, I find that diplomatic requests for extensions are often met with approval. And if an editor tries to make an initial offer with a less-than-one-week deadline (and they aren't at a highfalutin journal) a slightly firmer request for more time is more than justified.

Some authors submit to journals in which they don't intend to publish, hoping to secure an offer that they can use to expedite review in other, more desirable journals. I understand why some might take this approach--some journals won't even look at a piece unless it's been accepted elsewhere, and a prominent placement may be crucial for one who's going on the job market or pre-tenure. In my view, though, these reasons are insufficient justifications for the time and effort that editors put in to reading a piece and deciding to extend an offer. Those who put editors through all this work without ever intending to publish with the journal are using these law students as means to a selfish end. I never submit to a journal unless I intend to publish with it. I urge other authors to do the same.

Choosing a Journal

A publication offer feels great for a few minutes. Multiple offers feel even better. But authors refuse joy, and the thrill of acceptance soon gives way to the stress over which journal to choose. Should one go with Washington & Lee Law Review Rankings? Is US News the better metric? What about specialty journals versus flagship journals?

These questions are complicated. I've met colleagues who've developed complex spreadsheets purporting to account for these varying rankings system--spreadsheets that, if viewed for too long, melt the flesh of the skull of the reader.

Choosing a journal is often an article- and author-specific question. While flagship journals are generally preferable to specialty journals, this isn't the case for certain fields--where certain specialty journals are indicators of prestige. Washington & Lee has its uses, but tends to under-rank certain journals--particularly those that haven't been around as long.

As much as I'd like to say I'm unconcerned with the prestige of my placements, I'm junior, pre-tenure, and I want it to be tough for my scholarly interlocutors to ignore me. As a result, I find myself playing the rankings game. My approach is to consider both Washington & Lee and US News. If I'm choosing between offers, I'll likely prioritize one that has a significant advantage in one or both of the rankings. Gut feelings over name recognition is a tie-breaker, and it always helps to speak with colleagues or friends about what they think is preferable. In the end, just know that the problem of choosing a journal is a good problem to have.

For those with tenure and who don't hope to make any career moves, perhaps prestige should take a backseat to other considerations. Those valuing the time and efforts of law review editors may eschew the expedite game altogether. I've known of at least one colleague who indicated in his cover letter that he'd accept the first offer--which he eventually did. Since I write so much, I've done a few exclusive submissions myself--including promising to accept the first offer, or submitting during an off-cycle, exclusive window (which more journals should consider offering). Getting pieces placed this way takes some of the pressure (psychological and financial) off of the regular submission season. If this is a luxury you can afford, give it some thought!

Should I Use Artificial Intelligence to Write the Article I Hope to Submit?

No!

Good luck!

Selective Critiques of Originalism?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Law Review Submissions: The Basics

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

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

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

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

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

Letterhead Bias and Anonymity

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

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

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

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

Grabbing Attention

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

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

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

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

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

Submissions and Expedites

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

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

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

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

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

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

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

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

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

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

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

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

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

The Summer Cycle

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

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

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

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

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

Artificial Intelligence?!

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

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

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

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

Law Review "Policies"

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

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

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

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

Section Three, Originalism, and Interpretive Alternatives

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Initial Interviews: The Basics

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

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

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

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

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

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

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

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

Common Questions in Screening Interviews

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

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

Why are you interested in becoming a law professor?

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

Describe your research agenda.

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

Describe your approach to teaching.

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

Why [Our Location]?

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

Why [Our School]?

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

Questions to Ask the Interviewers

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

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

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

Next Steps?

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

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

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

General Resources

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

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

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

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

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

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

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

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

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

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

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.