I’m glad we’ve finally made it to the part of our advice where we can talk about the importance of ideas! I wish we’d gotten here sooner. Lots of people didn’t like the previous round of advice, but luckily, as Adam says, once you are out of law school you can stop worrying about it. At this point, you really only have two things to do. Start writing interesting papers, and get a fellowship.
Once upon a time, those two clauses would have been written in the opposite order, because a fellowship gives you time to think and write, and it’s hard to those things while you’re practicing or doing other things to earn a living. In a better world, there would be more ways to incubate ideas for people who would be great academics one day but have never had the time and space to develop their ideas. But in our world, the fellowship market has become more and more competitive, so many fellowships will expect you to have done some writing, and certainly to have done some thinking, before you get the fellowship. This is hard, but increasingly it’s what you have to do.
Ideas.
Now it’s totally fine if many of the ideas you have at this stage are bad ideas. Most of my ideas today are still bad ideas! Ask people for help in sorting your good ideas from your bad ones — your former professors, academically-inclined peers, law professors you meet on the street, whatever is available to you. (These previous tips for junior scholars are still relevant at this stage.)
There is lots of advice about there about ideas you ought to focus on if you’re trying to get a job: Pick tax or corporate law, not constitutional law. Write about something topical, but not too trendy. Write something that has immediate policy relevance. Don’t write a paper about Chevron. In my view, all of this advice is overrated, though much of it may be true. You just need to focus on whatever your best idea is.
What makes a paper best? “Best” means a complicated function of (1) novel, (2) interesting, (3) correct, (4) persuasive, and (5) important. Different people disagree about the appropriate weights to place on those five things (and it is often hard to disentangle (1) from (2) and (3) from (4)). But you want to push as far on those frontiers as you can.
2. Getting a Fellowship.
Armed with these ideas, you should apply for a fellowship. These have been well-canvassed on other sites, such as Prawfsblawg. Apply for the ones you can. There are lots of ways to rank the different fellowships, but I think of them as divided into two categories: structured fellowships, like the Bigelow or the Climenko, which are supposed to have things like mentorship, institutional buy-in, a peer cohort, etc., and unstructured fellowships where you basically get a salary and a desk to be alone with your thoughts. Which one is best for you depends a lot on both your personality and the state of your work at this point.
Still the more important point, which some people are still going to hate, is this: If you can’t do a fellowship, and you don’t have a Ph.D., it will be very hard for you to become a law professor. This doesn’t mean you are a bad scholar or that you wouldn’t be a good law professor. Getting a fellowship requires you to demonstrate scholarly aptitude before you’ve been given resources to develop. It often requires you to move, for a salary that’s well below what practicing lawyers or law professors make. Not everybody can do that.
But again, as Adam notes, the law teaching market is very competitive. Even law schools you thought were obscure or are in undesirable locations often can pick between multiple candidates with multiple good publications in any particular area. If you don’t have a fellowship, it will be ultimately be hard to compete.
This is not just a point about credentialism, either. Fellowships give you the time to develop your ideas as well as an academic environment in which to test those ideas and discard the bad ones and refine the good ones. In theory, hiring committees know that somebody who hasn’t done a fellowship might turn out to be a great scholar and teacher. But they are already rejecting fellows with a track record of schoalrship and even teaching for these jobs. So it is very very hard to prove that you are the diamond in the rough.
3. Doing a Fellowship.
Doing a fellowship is more like being in a Ph.D. program than being in law school is. You may have some teaching duties, which you need to do well, but aside from that your main job is writing, and you should write like it’s your job.
Here is a passage about writing a Ph.D. dissertation from Brennan’s book:
If you struggle to finish your dissertation, you probably aren’t going to succeed as a professor. You should consider quitting, or finishing but pursuing a nonacademic career. There’s nothing wrong with that. This job isn’t for everyone, and that’s fine.
I realize that seems harsh. But consider: When you write your dissertation, you aren’t taking classes. You’ll either get to teach your own class. You’ll have almost zero responsibility other than writing your dissertation. That’s your full-time job. If you can’t hack that in a year, then how will you manage to be productive in research when— as an assistant professor—you also have to teach four to eight classes and perform service work, all without anyone mentoring your or holding your hand? In terms of responsibilities, grad school is the easiest time in your career. The years you spend writing your dissertation are the years with the fewest responsibilities. It doesn’t get better.
Now this advice doesn’t translate perfectly to legal academia. Some fellows have more substantial teaching responsibilities than that, and most assistant law professors don’t teach 4-8 classes a year. But the basic point still holds. You should have much bigger chunks of undistracted time to write as a fellow than you will ever have again, or at least for a long time.
At this point you should spend as much time working on your best ideas (see above) as you can. There may well be various forms of credentialism or other bias at work when you go on the job market, but there’s no point in worrying about it at this stage, because you can’t do very much about it. What you can do is present as much of the best work as you can to hiring committees. Once again, at this point you should act as if it’s all about your ideas — having them, writing them, presenting them, sharing them.