Law Professors' Research Records Across Time and Law Schools

In my last blog post, I wrote about my paper with Jonathan Masur and Kyle Rozema on Rethinking Law School Tenure Standards. I wanted to say more about what we can learn about law professors’ research records using the data from that paper.

To study law school tenure standards, we collected a lot of data on the identities of law professors and their research records. We gathered this information from two main sources.

For data on the identities of law professors, we used the Association of American Law Schools’ annual lists of law professors to generate a panel of law professors at top 100 law schools since 1970. Our goal was to study law professors that received tenure, so we excluded non-tenure track faculty. We also excluded professors that were granted tenure after 2007. (Why 2007? We wanted 10 years of post-tenure data for every professor, and we started this project in early 2018.)

For data on law professors’ research records, we used data from HeinOnline. From HeinOnline, we were able to gather information about each publication, including the journal and year of publication. Importantly, we were also able to gather information on every citation an article has received from another article in the HeinOnline database.[1]

At this point, we have the data to explore trends in research productivity across time and across law schools. I’ll just mention two facts that come out of our data.

First, law professors’ pre-tenure research productivity has clearly increased over time. Panel A of the above figure shows that the cohort that received tenure in 1970 had published roughly 3 law review articles by the time they were up for tenure; but the cohort that received tenure in 2007 published roughly 6 law review articles by the time they were up for tenure. In other words, the number of law review articles law professors published before tenure doubled between 1970 and 2007.

This increased productivity continued after tenure. Panel B shows the number of law articles that each tenure cohort published in the ten years after tenure. In 1970, law professors published about 4 law review articles in the decade after tenure; by 2007, it was about 8 law review articles.

These trends obviously mean that standards have changed, but they also have some implications for how to think about tenure decisions. Notably, schools now have a lot more information about the quality of someone’s research when making tenure decisions, which means that if they want to, they could make better decisions. Additionally, given that professors are now writing more after tenure on average, the costs of unproductive faculty have increased over time.

Second, there are great people working across the range of law schools. The above figure plots the distributions of the within-tenure cohort percentile of law professor citations, but broken out for three groups of law school rank. Each distribution is broken down by decile, but the top decile is broken into two groups (the 90th to 95th percentile and the 95th to 99th percentile) and the bottom decile is broken into two groups (the 10th to 5th percentile and the 5th to the 1st percentile).

So what does this figure show? It shows that of a given tenure cohort (e.g., the people granted tenure in say 1995), the professors at top law schools are more likely to be in the top of the distribution of their tenure cohort. But this pattern is not perfect. There are people in law schools ranked 50-100 that are in the top of their tenure cohort compared to peers at top law schools, and there are people at top law schools that are at the bottom of their cohort.

Why does this matter? It means that there are absolutely fantastic lateral candidates that could be stars at any faculty working across the range of law schools. The problem is that our current tenure equilibriums don’t create enough opportunities for the best people to move schools if they want to.

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[1] HeinOnline does not include information on every academic article or book that a law professor might write, so it’s not a perfect source. We talk about this more in the paper, Jonathan Masur and I have separately written about how relying exclusively on HeinOnline for rankings or evaluations could distort law school rankings and labor markets.

Rethinking Law School Tenure Standards

Jonathan Masur, Kyle Rozema, and I recently published a paper in the Journal of Legal Studies titled Rethinking Law School Tenure Standards that should hopefully be of some interest to all current or aspiring law professors. Why? We go hard at the fact that something like 95 percent of law professors are granted tenure.

To the handful of people reading this blog that are on the tenure track, this might sound like a good thing. After all, being on the tenure track is stressful as hell, especially during a pandemic. So, I’m sure it would be infuriating to about any research concluding that the bar should be raised.

But to the other handful of people reading this that are either aspiring to be law professors or currently teach at schools that aren’t their first-choice, it’s the current tenure equilibrium that should be infuriating. Because the fact that tenure denials are so rare is a big part of why it’s become impossibly hard break into teaching at law schools and why so many amazing law professors have limited lateral opportunities.

But instead of just writing down our views about how to improve law school labor markets and adding footnotes so that it would look like serious research, we tried to empirically assess what would have happened if law schools had imposed tenure standards more in line with other academic departments. To do so, we combed through various sources to build a dataset of law professors hired from 1970 to 2007 and a year-by-year record of the papers they published, where they published them, and citations those papers received each year.  

Using this data, we produce two main findings. First, professors’ research records when they’re up for tenure are highly predictive of their future research output. In other words, law schools have the necessary information at the time of tenure decisions to make reliable predictions about who are going to be stars, median faculty members, or below average performers. Second, if law schools had tenure denial rates comparable to the hard sciences, it could more than double the law schools’ median post-tenure academic impact.

Now, you might think that imposing these higher standards would be a mistake because there would be a lot of false negatives (i.e., people that go on to be great that would accidentally be denied tenure) or that it would hurt the diversity of the law school faculties. But we find that these problems wouldn’t have to materialize.

There’s a lot more going on in the paper, so stay tuned for a few more posts about the data, methods, and results of our research.

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*Jonathan and Kyle are busy, careful scholars with better things to do than write blog posts. They had no knowledge that I was writing this post or approval of its contents. So feel free to blame them for the things you don’t like about the actual paper, but please don’t hold my commentary about it against them.

How do you figure out which conservatives shouldn't be honored? Make other conservatives do it for you.

An appealing feature of honoring people based on the positions they’ve held is that it’s ideologically neutral. Institutions, like law schools, can simply say that they’d love to host anyone that has held a sufficiently important position. And by doing so, they don’t have to make judgements about the merits of the policies that person advanced, or the decisions they made, when they held their important position. Liberal stakeholders may be upset when someone that was against marriage equality is given a prestigious invitation; but, don’t worry, the conservative stakeholders will be upset next time when someone that has advanced pro-choice positions gets the same opportunity.

Although this is roughly the standard policy that many elite institutions have adopted, I share what I understand to be the worry behind Jacob Levy’s argument: honoring anyone that holds sufficiently important positions sends a dangerous signal that nothing is beyond the pale. And it would be helpful for important people to know that if they act in a dishonorable way, they won’t get to fly around the country to be complimented, wined, dined, or even paid.

But I also share what I understand to be the worry behind Will’s argument: endorsing Levy’s view will predictably result in censoring people that have views opposed those that control our elite institutions. And, like Will suggests, currently that means that it would likely be the case that important liberal figures will still be honored while important conservative figures will be excluded.

Fortunately, there is a solution that universities generally—or law schools more specifically—can adopt that addresses both of these worries at the same time. It only requires taking two steps.

Step 1: Hire an ideologically diverse faculty and appoint ideologically diverse administrators.

Step 2: Establish a norm that people should veto efforts to honor members of their own team when they do something beyond the pale. In other words, let the conservatives figure out which conservatives are dishonorable, and then let liberals do the same thing for their team.

The advantage of this solution is simple: there are plenty of people that we all think advance positions that, in Levy’s words, are “dishonorable.” The problem is that we are poor judges when trying to make these judgements across the ideological spectrum.

For example, I think that many conservative judges write terrible opinions in the name of originalism that hurt our societies’ most vulnerable; but, as the dozen readers of this blog know, there are conservative scholars that think judges who depart from originalist positions have violated their oath of office and thus should be removed. Given that, maybe I shouldn’t be evaluating which conservative judges are worth honoring, but a conservative scholar shouldn’t be evaluating which liberal judges are worth honoring either.

The only tricky part of this solution is that it requires us academics to support hiring good people we disagree with and then to put trust in their decisions. I know plenty of academics that think those good people on the other team simply don’t exist. But any liberal (conservative) person that thinks there aren’t any conservatives (liberals) worth hiring and trusting is exactly the kind of person that shouldn’t be in charge of figuring out which of their ideological adversaries is dishonorable.

How Should Universities (Especially Law Schools) Treat The Powerful?

Jacob Levy has a two-part series on how we honor powerful people, starting with the issue of confederate monuments and then moving on to how we should treat people who worked for the government to do bad stuff. One of the core arguments is that we generally give powerful people too much credit, honor, and respect, so trends that cut back against that are probably good. I think he has persuaded me that this is correct. (I’m reminded as well of this recent article by Leah Litman, which I’ve been trying to find the time and words to write about, and may return to in another post.)

I wanted to highlight a couple of paragraphs from Levy’s second essay because they are especially relevant to how law schools operate:

The shared media culture of the days of Walter Cronkite is long gone; there are now paid media niches available to match the polarization and fragmentation of American politics. Why slink offstage in disgrace when there’s a living to be made continuing to denounce Trump’s enemies?

In light of all that, consider the institutions that thrive on prestige and proximity to power: not only think tanks and lobbying firms but also corporate boards, elite media such as the New York Times, elite universities, and the celebrity-intellectual circuit of ideas festivals and televised debates. It’s tempting and easy for such institutions to conflate openness to different ideas and ideological perspectives with bestowing prestige, honors, and money on the powerful, regardless of what political agenda they served with their power. 

In the case of the university, this is the difference between maintaining academic freedom for students or faculty members who advance a range of ideological positions and awarding honorary degrees or prestigious platforms, such as commencement addresses or endowed lectures, to persons whose claim to fame just consists of their time in politics and public office. Students and faculty members must be free to argue in favor of (for example) closed borders and the end of rights of asylum and refuge. They should also be free, in their various clubs and departments, to invite speakers to a campus to advocate those ideas. But should the architects of the family separation policy— not only Nielsen but also John Kelly, Chad Wolf, and the ideologists in the background Steve Bannon and Steven Miller— be honored for their careers? Should they receive visiting university fellowships for distinguished public servants or asked to speak to graduating seniors on the noble calling of politics? Nothing in academic freedom or intellectual freedom or freedom of speech calls for such an outcome. 

Again, there’s no avoiding substantive judgments, however much universities do and should resist simply taking partisan sides. Deciding whom to honor is different from deciding what speech to permit. Without an active commitment to refuse to honor the dishonorable, universities will likely do so, allowing themselves to be seduced by the illusion of merit attached to power and celebrity, and then dressing up the decision as intellectual openness.

As I understand the application of Levy’s theory to a law school, it would mean that a student group like the Federalist Society is free to invite any speaker they wish, but the law school might offer an endowed lecture or an honorary degree only to a former Solicitor General in the Obama administration and not in the Trump administration.

This is especially thought-provoking because law schools and the legal profession more generally are so hungrily focused on power and prestige. Students who become lawyers will often need to convince powerful people of their client’s positions. Some of those students will go on to become the powerful people themselves. Some of their professors are still angling for those positions of power.

(Indeed, at some (I think many) law schools a student group cannot invite a powerful person on their own, because the administration holds a monopoly on VIP guests, such as Supreme Court Justices, in order to ensure that they receive the VIP treatment.) All of this is bound up with the law schools’ joint mission of both scholarly study and professional training.

All of that said, I have three basic reactions.

First, a recentering of intellectual merit over power and celebrity is indeed something to aspire to. Imagine, if you can, an academic center in public law whose mission is committed to ideas over power. Imagine speakers and visitors selected only on the basis of what they have to say, and not their identity or prestige. Imagine prizes or awards given to people you have never heard of, but should, rather than to people who will draw a crowd. It is hard for me to imagine, at least at the law schools I have seen, but I think it would be a wonderful thing.

Second, that said, I have concerns about the norms Levy proposes. Yes, he’s right that “It’s tempting and easy … to conflate openness to different ideas and ideological perspectives with bestowing prestige, honors, and money on the powerful, regardless of what political agenda they served with their power.” But in an institution that does honor power, the selective denial of these awards to one ideological corner of the powerful is a form of non-openness. And it sends an especially chilling message to one wing of the students and faculty, say those who aspire to work in a Trump administration rather than a Biden administration.

Indeed, Levy acknowledges, and welcomes, the possibility that we would add more forms of public dishonor to his list. At all but maybe two law schools I’m familiar with, that list would inevitably look like the usual partisan disputes. It shouldn’t, it needn’t, but I think it would.

We could solve this problem by ceasing to venerate any of the powerful, at least not for their power’s own sake. But treating one party’s law enforcement officials as generally honorable while another’s are generally dishonorable would not be a step forward, I don’t think.

Third, I also have a more practical, darker, concern, which is that intellectual openness and institutional hunger for power and prestige might be more related than Levy allows.

On Twitter, Levy adds: “Sacrificing Bill Barr from the law school visiting speaker circuit will not leave law schools unable to find enough conservative speakers for the circuit. The legal academy has many smart and decent conservative scholars, and I'm not criticizing the existence of the circuit!”

But here is what I worry about:

When students call for the cancellation of a speaker because his or her words are seen as harmful or otherwise beyond the pale, an intellectually serious law school needs to be able to say no.

But even at the most serious schools, the administration may struggle. Sometimes they do the right thing only because of pressure from powerful alumni or judges with an affection for the school. Sometimes administrators need to be able to say “you may think these ideas don’t deserve to be heard, but we are training you to practice in front of government officials who believe these ideas or at least want to hear them, so these ideas must be able to be voiced in our walls.”

It’s logically possible for a law school to maintain strong freedom of academic speech while also communicating that these people are dishonorable and would never be given an honored place, only a dishonored place, at the school. But it’s very hard, and administrators can only do so many hard things.

Sometimes it is internal faculty pressure that keeps the flow of ideas open, but there too the issues recur. For example, there was a lot less interest among law faculties in hiring originalist scholars (and still too little interest!) when originalism did not seem to be widespread among judges.

I would like to believe that every law school left to its own devices would allow its students to form (say) a Federalist Society, and allow them to invite any outside speaker they liked, without allowing the speaker to be heckled out of the room, without covertly denying them room assignments, without adopting gerrymandered rules about outside funding and outside speakers, without professorial reprisal against the students involved. I would like to believe that every law school would do this even if the institution did not care about proximity to prestigious and powerful conservatives. But I don’t yet believe that.

Getting an Academic Job is About Getting to the Research Frontier

I just listened to the episode of Orin Kerr’s podcast, the Legal Academy, where he interviews Emma Kaufman. In the episode, Orin starts by asks a series of questions about the value of academic fellowships for aspiring law professors. Many of the questions were great conversation starters; but there was also a line of questions that gives the wrong impression about what makes academic fellowships valuable.

Orin specifically asked what’s the substance that people learn during their time as a fellow. That is, is there a “cannon” that is helpful to learn before going on the market that you’re exposed to in a fellowship? Are there a set of ideas, arguments, or articles that people will expect you know before you’re qualified to be a full-fledged member of the academy? If so, what are they? And how can people on the outside-looking-in learn them without the fellowship?

Learning the canon is something that may make you a star student, but it’s not what makes you a star on the job market. No one succeeds on the job market because they know the details of what important legal thinkers wrote. You don’t have to know about what Ronald Coase or Ronald Dworkin thought about anything to be successful on the market. This is because schools typically don’t hire academics because they have mastered the ideas of the past.

Doing a fellowship thus isn’t about getting exposed to a canon. It’s about getting to the research frontier. The stars on the academic job market are the people that have been able to identify the most important, currently active people are in their field; learned the questions they are researching, the arguments they are having, and the methods they are using; and figured out how to do something that moves the ball forward. Those important, active people in the field—who have the highly specialized knowledge to understand where the research frontier is currently located—then vouch to the gatekeepers in the academy that there is someone new that they’re learning from that’s available on the market.

Want to be a star originalist on the market? The way you get hired at a great law school is having Will Baude, Steve Sachs, and _________ (this will have to be a list of two because I don’t want to accidentally out any originalists that aren’t out and proud) say that your research changed or challenged their thinking in some way.

This is part of why it’s so difficult to really succeed on the job market without doing a fellowship. If you’re in practice or clerking, it’s tough to learn where exactly the frontier in a current field lies, and it’s even tougher to get the people who are currently at that frontier to be willing to vouch to hiring committees that you’re pushing its boundaries.

Instead, you need people to point you to the best current work being done. You then need to take the time to understand it. And then you need to find a way to say something new or better. For all but the most impressive job market stars, it takes time in the academy to pull that off.

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As a final note, Emma’s advice, especially on what makes a good job talk paper, is fantastic. I argued in an earlier post that aspiring academics should get to know young professors because they give the best advice; Emma’s interview is the perfect embodiment of that point. Her advice on finding topics that bring people in, even if that requires saying something more normative than you’d prefer, is spot on. That said, I’m pretty biased. Before this blog, Will and my joint venture was running the Bigelow program—Emma was the first person we hired.

How to Become a Clinical Law Professor

Guest Post by Claudia Flores, Director of the International Human Rights Clinic at the University of Chicago Law School.

Clinical law professor is a relatively new position in legal academia. Though clinics have existed in law schools since the 1950s (UChicago’s clinic was established in 1957), clinical legal education really became a component of law school curriculums in the ‘90s. Since then, clinical programs have dramatically expanded from 314 clinics at 119 law schools in 1990, to 1,433 clinics at 187 law schools in 2016-17. Today, the majority of U.S. law schools have clinical programs, with an average of seven clinics in each program.  In 2014, the ABA made experiential education a requirement for all accredited law schools which has institutionalized clinical legal education.

 The “first wave” of clinical faculty were primarily public interest lawyers approached by law schools to establish clinics in their field. Today, clinical faculty are hired and recruited much the same way as “podium” law faculty (for lack of a better distinguishing term) through job and recruitment fairs and national postings.  

 So how do you become a clinical law professor, or at least position yourself for that possibility? This advice is geared towards public interest oriented clinics, which continue to be the majority of clinics in law schools. The short answer is become an experienced lawyer with some recognition and success in your field and a demonstrated talent and interest in teaching. Below is the longer answer, which I’ve broken down into a set of decisions to consider as you advance through law school and your legal career.  

 What to do during law school: 

• Take a clinic in law school (hopefully, this is obvious). There are many reasons to take clinics: improve your lawyering skills in an educational setting; gain exposure to a particular area of law; strengthen your writing and/or oral advocacy skills through the feedback and revision process; learn to be a professional; benefit from faculty mentorship; and have the opportunity to work on cutting edge and, often inspiring, legal work. All that aside, if you think you might want to teach in a clinic someday, you should definitely take one or more clinics. Clinical education employs the experiential learning model – the idea that important learning happens through acquisition of knowledge, application through practice and reflection on that practice. To know what this means and what it does for students, you simply need to take a clinic.  

• Do a public interest internship at least one of your summers in law school.  Many of the top law schools, including ours, provide funding for students who want to work at a public interest organization over the summer. This is an incredibly easy and accessible way to supplement your clinical experience.  Just as important, you will be much better situated to find a sponsoring organization for a post-graduate public interest fellowship (see below). Some students manage to split their summers between a public interest organization and a firm.

• Develop relationships with faculty in your field and areas of interest.  Make the most of the opportunity to develop any and all faculty relationships through clinics, research assistantships and other law school activities. Find mentors who have followed career paths that appeal to you.

• Be active in student organizations working on issues that matter to you: This is important to developing and maintaining your network and demonstrating a commitment and focus to the impact of law on the public interest. Hiring committees for clinical faculty will look for this consistency and depth of experience, even during your time in law school. 

• Develop a student community.  You will work with, hire, be hired by, and refer clients to your law school peers for the rest of your professional life.  Trust me.

 What to do after law school:

• Clerk if you can: A clerkship is not a requirement for a clinical faculty position but it definitely helps, especially if you wish to end up in a litigation-based clinic.   

• Become a good lawyer and gain experience that makes you an even better lawyer. Law schools will look for flagship work and/or a successful practice of some kind. Clinical law professors are hired as experts in areas of practice. No law school is going to hire a director for a public defender clinic if that person hasn’t actually been a public defender.  That said, you may also consider diversifying your skills and areas of expertise to widen the scope of your marketability. There is legal work that takes place at the intersection of clinics commonly found in most law school clinical programs. For example, if you’ve worked representing immigrant farm workers in Fair Labor Standards Act cases, you may be a good fit for an immigration or an employment law clinic.    

• Limit your time in the private sector, unless your private sector employment is relevant to your field of interest for clinical teaching. The reality is that clinical teaching jobs are highly competitive and spending too much time in an unrelated private sector position will weaken your candidacy. Certainly, some private sector lawyers make names for themselves by taking on relevant probono work and so find the transition an easier one. For everyone else, remember you will be in competition with many lawyers who will have spent their careers in the relevant public interest field. If you do spend time in the private sector, remain active in professional organizations and take on related probono cases. 

•  Write in your field. Writing requirements vary by law school and how and whether clinical faculty are tenured under unified or parallel tenure systems. However, most clinical faculty at top law schools publish in their field. If you have written in your field, whether it is for a public, practitioner or academic audience, you will be a more attractive candidate. 

•  Consider applying for post-graduate public interest fellowships: Fellowships like the Skadden Fellowship, the Soros Justice Fellowship or the Equal Justice Works Fellowships, among others, have name recognition and connect you to a community of fellows that will be very helpful in your career generally. These fellows also tend to be highly represented in clinical faculty. Moreover, these fellowships also provide an entry way into a first public interest job, a position that can be difficult to land.  As an alternative, many law schools have their own fellowships for graduates. These are also worth considering.

•  Consider a clinical teaching fellowship. Many top law schools offer clinical teaching fellowships aimed at early career lawyers interested in clinical teaching. UChicago Law has one in the clinic I direct - the International Human Rights Clinic. American University, Georgetown, Harvard, Berkeley, Columbia and NYU also all have clinical teaching fellowships.  Generally, these fellowships require some experience (2-5 years), impressive academic qualifications and a demonstrated interest in teaching in a clinic. Fellows work closely with students, provide support to the director and often supplement student research and writing. Some law schools prefer hiring directly from these fellowships because of the training fellows receive in clinical teaching. Others prefer to hire practitioners from the field. Generally, my opinion is that it is preferable to spend time practicing outside of the academy before transitioning into a clinical faculty position but reasonable minds differ.

•  Stay connected to your clinic and collaborate with clinics. Clinics source cases and projects in different ways but many co-counsel and collaborate with former alumni. Bringing interesting cases to your alma matter clinic or other clinics supports clinical programs and will provide you the opportunity to work with students in that context. 

•  Try to acquire some teaching experience. Hiring committees will often prefer that you are not learning to teach on the job. A great lawyer is not necessarily a great clinical professor. Teach a course in a local law school or CLEs. Not only will you improve your teaching skills but you will be a more attractive candidate.

•  Don’t pursue the career if you want to be “podium” faculty or as a way of moving in that direction. There is certainly some overlap in clinical faculty and “podium” faculty positions, and some crossover between the two faculty populations, but they are not the same jobs. The approach to legal education is complementary but distinct. Moreover, a clinician is a practicing lawyer, a not-insignificant component of the position.  

•  Do pursue the career because you enjoy and are committed to your area of legal practice, would like to contribute to its evolution in an academic setting, and want to train the next generation of lawyers.   

Fragile Ideas

I’ve written repeatedly about the importance of having ideas, why it’s ok for scholars to have lots of bad ideas, and the need to find ways to filter out your bad ideas before you spend time turning them in to bad papers. But there is an important flip side, which is that scholars — beginning and aspiring scholars especially — need the space to let them work on ideas without getting discouraged or prematurely judged as bad scholars. Indeed, I think this is one of the things most missing from our current law school - fellowship track in legal academia: a place to develop fragile ideas.

This is from a post about start-up culture, but I found it quite relevant to academia:

How do you [generate ideas]?

It’s important to be in the right kind of environment, and around the right kind of people. You want to be around people who have a good feel for the future, will entertain improbable plans, are optimistic, are smart in a creative way, and have a very high idea flux. These sorts of people tend to think without the constraints most people have, not have a lot of filters, and not care too much what other people think. 

The best ideas are fragile; most people don’t even start talking about them at all because they sound silly. Perhaps most of all, you want to be around people who don’t make you feel stupid for mentioning a bad idea, and who certainly never feel stupid for doing so themselves.

Stay away from people who are world-weary and belittle your ambitions. Unfortunately, this is most of the world. But they hold on to the past, and you want to live in the future.

Unfortunately, both our online and academic cultures are increasingly moving away from being spaces for the exploration of fragile ideas — ideas that might turn out to be good and important but also might turn out to be bad or dangerous.

We academics should be brainstorming ways to change that.

LRW/clinics; notes; reform

With the scant time before I turn into a pumpkin on Monday, I’m going to try to add a few final thoughts on this series of legal academia advice. But in the meantime I wanted to respond to a couple of points and queries that have come up.

1. Does this advice ignore legal writing and clinical professor positions? Yes. I don’t feel as qualified to give such advice, though I know and love great people who have these jobs. If you have advice for legal writing or clinical professors you’d like to share, email us.

2. Is it a good idea to read a bunch of student notes to get a sense of what beginning scholarship looks like? No, this is a bad idea. Student notes may or may not be worth writing, but they are a different genre and they can teach you bad habits. Many journals force students to recapitulate existing doctrine and scholarship and spend too little space on their own novel contribution. They often impose artificial constraints on the topic and arguments that are permitted. I’m sure there are exceptional journals and exceptional notes, but surveying notes as a field will teach you bad habits.

   If you want to get a sense of how specifically beginning research should look, focus on reading published articles fellows, law clerks, or untenured professors. You might also see if your school will let law students sit in on job talks, and also ask to see a copy of the job talk papers.

3. Doesn’t the system need to be reformed? Yes, in some respects, though I don’t think everybody will like our reform advice either! For now let me just reiterate that I find it useful to break down discussion of the hiring market into three different questions. What should aspiring professors do, given the world we live in? What should hiring committees and faculties do, given the world we live in? What should all of us participants do to change the world of legal academia?

   The answers to all three of these questions should be different. For instance, I said earlier that aspiring professors should try to go to a school that produces law professors. But in my view hiring committees should ignore this advice — if a candidate has direct evidence of their teaching and scholarly ability, the law school they went to is basically irrelevant.

Ideas

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.

1. 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.

What To Do Between Graduating and Going on the Market

Will and I have already covered our tips on what to do if you’re a law school student. Now, what should you do between graduation and going on the entry level market?

The thing that gets most people hired as an entry level law professor is demonstrated ability to do good research. In the last post, I said that the most important way to spend your time in law school is taking five steps that will help you figure out what to research:

So how should you spend your time in law school if you want to be a law professor? Spend it figuring out yours answer to these five questions: (1) what subject do you want to (initially) research; (2) what methods will you use to research it; (3) who are the leading people currently researching that subject; (4) what has been said about the subject; and (5) what’s an important point that hasn’t been made about the subject.

Here’s the good news. It doesn’t matter if you did those things in law school. It’s easier if you get them done sooner, but it’s not too late to start, even if you start years after graduating. Additionally, the other good news is that you only have to add three to that list before you go on the market.

 (6) take the important point you figured out that hasn’t been made about your subject during step 5, and turn it into a published article; (7) repeat steps 5 and 6; and (8) make sure relevant people that research in your area know about your research.

 Anyone can do these steps, and if they do them well, people won’t bother to rely on the signals they had previously used as proxies for research potential.

But here’s the bad news. Even if you do these things, the entry level market is brutal. This year, less than 25% of people that went on the market actually landed an entry level job.[1] And most people don’t go on the market on a whim. Preparing for the market takes a lot of time, actually going on the market is expensive, and if you’re one of the 75% of people that go on the market and strike out, it can still set you back in your non-academic career pursuits. In other words, this is a market with a 25% success rate where the people that dip their toe into it don’t do it lightly. As Brennan put it in his book on succeeding in academia, “Your least qualified competitors will be impressive people with decent credentials.”

So, given how tough the market is, what should you do to prepare for it? The first thing I’ll say is that advice about what would make you a good law professor, and advice about what will make it likely you’ll become a law professor, are often two different things.

Most notably, there is often a debate about how much practice experience is the right amount before going on the market. But people in these debate seem to be talking past each other. People in favor of more practice experience often focus on how having more practice experience prepares people to be good teachers, mentors, advocates, and scholars. But I’m not sure anyone on the other side of debate disagrees with that point. People on the other side of the debate typically just think that practice experience beyond a few years doesn’t do a lot to help you get the job in the first place.    

So given how competitive the market is, it’s best to focus on the things that make it more likely you’ll actually become a law professor. What are those things that increase the probability that you’d get a job in the first place? It’s helpful to follow Brennan’s tip, in the book we are at least pretending to build off, and use backwards induction. The people that are the most successful on the market each year aren’t discovered by hiring committees that are scanning a stack of 500 CVs and just happen to pick one out of the pile randomly. They already have a good reputation with many relevant people in their field as an emerging scholar that has produced good research.  

So how do you get a good reputation as an emerging scholar? It’s not just about going to a good school or doing well there. There are students from top law schools that strike out on the market every year, and students that didn’t go to those schools that succeed. Regardless of what you did in law school, or how you did there, there are concrete things that you can do to build a reputation as an emerging scholar.  Like I said before, there is some randomness in the process, but it’s not a lottery.

There are many different ways people to get there, but all of them involve spending time producing research and engaging with law professors about that research. They also almost all follow one of two paths with the same intermediate stopping point before the market: an academic fellowship.

Path 1: Do a PhD in a Related Field. This is the surest fire way to improve your odds of producing good research, and thus getting a reputation as a good researcher. But it’s the highest opportunity cost too. If you’re going to do a PhD and you’ve already done a law degree, find ways to do it as efficiently as possible. You want to get through the program quickly and back on your way to legal academy. 

Path 2: Practice for a Few Years. A few years of practice experience is helpful, but the tricky thing is finding a way to practice and still have time to do the things that will help you land a fellowship. Given the demands of legal practice, this can be extremely difficult. But a few things you can do to improve your academic prospects while practicing are:

• Land a Clerkship. Clerkships can get students strong recommenders, expose potential professors to a lot of different areas of the law, and in some clerkships, there is time to write (or, at lest, most time than life as a big law associate).

• Work in a specialized Practice Area. If you work in a specialized field – i.e. a patent boutique instead of generalized litigation at a major firm – you’re more likely to interact with people in that specific area, including practitioners with ties to academia. You’re more likely to get research ideas, come across scholarship, etc. It’s best if you focus on fields like corporate law, where there is market demand every year, but specialized focus usually works.

• Continue to Work on Writing Papers. I know this is near impossible to do if you are in practice. But some people take advantage of breaks between clerkships and their jobs, find ways to take some time off, or focus on improving old research projects instead of starting new ones.

• Attend Academic Conferences. Go to conferences like Law and Society, the American Law and Economics Association, or the American Society of International Law. Meet people, and when you do, talk to them about substance.

 Whether you do Path 1 or 2, those paths should lead to the same place.

Do a fellowship. This should be the pre-market goal for almost anyone. The problem is that they are tricky to land because they have become so competitive. You should thus be taking the prior steps I just mentioned to improve your chances of landing a fellowship. Also, if anyone tells you “I became a law professor without doing a fellowship.” Ask them when they graduated law school. Because everyone now either does a fellowship or is a super-star, unicorn. Don’t believe me? Sarah Lawsky’s got the data.

Here is one final piece of advice that’s also cribbing from Brennan’s more general job market advice. The credentials of the people that succeed on the job market are more impressive each year. This isn’t anything to do with any law school specific pathologies. It’s not because law professors like prestige, erecting barriers, or anything else. This is trend exists in every single academic discipline, and it exists in plenty of other fields too.

So don’t just assume that doing what professors that got their jobs years ago did and hope it will work out. Instead, look at the CVs of the people that landed jobs this year. The research records of successful candidates will be better on average next year, and better on average the year after that. You need to plan to make your research record stand out relative to where the market is going to be in the future, not where the market was in the past.

———-

[1] This data is from Sarah Lawsky and available at PrawfsBlawg. Anyone interested in being a law professor should spend a lot of time with Sarah Lawky’s work documenting trends in legal hiring. The information she collects is the most important resource in the profession on what it takes to succeed.

How to Spend Your Time in Law School if You Want to be a Law Professor

Many people come to law school because it opens a lot of doors. Recently graduated from college and can’t decide if you want to work in politics or private equity? Go to law school and figure it out later.

It’s true that a law degree provides a lot of options. But most people take the exact wrong lesson from having those options. They think that having options means that they should avoid closing doors while they figure out what they’d like to do. 

That’s might work okay for making some kinds of career decisions, but it’s a pretty risk averse strategy to adopt if your goal is to land a job with very few openings. A better way to think about options in that case is that a law degree is an insurance policy that mitigates the downside risk of decisions that don’t work out. If you want a legal job that’s hard to get, you should go for broke and assume that having a law degree means that you’ll be able to figure out a back-up plan later if it doesn’t work out.

This brings me to what to do in law school if you want to be a law professor. The sooner in law school that students decide that they’d like to become a law professor, the more likely they are to achieve that goal. Law schools are full of people and resources that can help students become good legal academics. It’s best if the students are able to take advantage of those resources before they graduate.

At this point, I’m sure people are asking: how can anyone know they’d like to be a law professor early in their law school career? Well, everyone that starts an anthropology PhD Program has figured out they want to be a professor before graduate school. So you don’t have to take graduate classes before you can decide to be a professor. And I meet plenty of prospective law students that know they are interested in being a law professor. There are many people that think they are interested in potentially being an academic early in their legal education.

The problem is that those students rarely get good advice. The things most people will tell you to do if you are interested in being a law professor—get good grades, get on law review, clerk for a good judge—are outcomes. Students don’t need to be told that it would be helpful for them to do well at law school if they want elite jobs. That’s obvious. What the need to be told is what to concretely do with their time and how to direct their energy.

Imagine an economics PhD student asking their advisor how to get a good job, and the advisor responding: write a good job market paper. Sure, that’s the most important thing they can do. But telling the student about the targets they should be shooting for isn’t that helpful. The students already knew that they need to write a good paper. The helpful thing is guiding them through the process of writing it.

And in the law school context, exclusively focusing on the targets to shoot for is not only unhelpful, it’s actively harmful. This is because it causes people to delay getting focused on preparing themselves for an academic career. The only advice students hear is that certain targets are helpful to hit, so they hold off deciding if they want to be a law professor until they know if they’ve met those targets. And by doing so, they lose valuable time that they could be spending preparing themselves to be a great scholar. 

So how should you spend your time in law school if you want to be a law professor? Spend it figuring out yours answer to these five questions: (1) what subject do you want to (initially) research; (2) what methods will you use to research it; (3) who are the leading people currently researching that subject; (4) what has been said about the subject; and (5) what’s an important point that hasn’t been made about the subject.

What can you do to figure out the answers to those questions?

• As soon as possible, go ask a professor to recommend a recent law review in a subject you think you might be interested in. Actually read that article, think of some thoughts about the article, go talk to the professor about it, repeat.

• After 1L year, when picking classes, always take at least one class where you are writing a paper instead of a final. Spend your time during the semester on the paper, get feedback, make it better. Your goal shouldn’t be to write a paper that meets the requirements of the class (e.g. a 25 page paper on a topic that’s really well trodden). Your goal should be to use the seminar to write the first draft of a paper that will one day be publishable. You don’t have to actually publish the article — you’ll throw away plenty of drafts. But no one gets good at producing scholarship without practice.

• Take every academic workshop (e.g. public law workshop, law and economics workshop, law and philosophy workshop) that’s offered as a class. If these workshops aren’t offered as a class, figure out a way to get permission to attend anyway. Workshops will expose you to more scholarship and more scholars, and let you see what it takes to give a successful talk.

• Unless there is a clinic in your area of academic interest (e.g. you’re interested in criminal law and your school has a criminal defense clinic), avoid clinics. And even if there is a clinic in your area, still consider avoiding it. Clinics are extremely awesome ways to do interesting legal work and to get very close to clinical faculty, so for most students they are excellent options. But for someone focused on producing research, the opportunity costs are too high. [note: much of the advice on this post doesn’t apply if you want to be a clinical professor, but obviously this one doesn’t apply at all.]

• Work as an RA, but don’t do too much work as an RA. Working as an RA is a great way to get to know professors and get to know their research, but as quickly as possible you should be scheming about how to start your own projects.

• Get to know the youngest professors at your school; they have the freshest advice.

• Attend lunch talks whenever possible. Even if it’s not in your subject area, the more you know about law, the legal system, and legal research, the better.

• Take grad school classes in other departments in the field(s) closest to your research interest. Think legal history is interesting? Go learn what they are teaching aspiring historians.

• Take major black letter law classes in a range of areas. Concerned about the history of originalism? You should still be taking classes like Corporations or Antitrust. You’ll get more ideas, and also importantly, be able to talk intelligently to a wider range of people when you’re actually on the job market.

• Make friends with people that have similar goals. These friends don’t have to be in your law school, or even law students at all. But it’s helpful if you know more aspiring academics. Like I said before, peers give the best advice.

I’m sure there are more, but those are a few of concrete steps that people can take in law school to get to the cutting edge of research in a particular field. Even if you don’t “win” law school (e.g. your grades aren’t great, you’re not on law review, you don’t land a clerkship), you can still break into the legal academy if it’s clear that you know what it takes to be a leading researcher.

What if you’re already past law school and didn’t take these steps? Don’t worry; it’s not too late. We’ll talk tomorrow about what to do after law school. 

What To Do in Law School If You Want to be a Law Professor One Day

Suppose you do want to be a professor. Another chapter in Brennan’s book is devoted to how to succeed in grad school — what you should be doing in grad school to help get a good academic job afterwards. This is one of the places where the structure of legal academia is very different from other fields. In other fields, you go to a graduate Ph.D. program almost exclusively because you want to go into academia afterwards. All of your classmates are there for the same reason, and a good program will be focused on helping you achieve that goal.

By contrast, legal academics start by going to law school. At every law school, most of your classmates are not going to be legal academics. They are going to be lawyers. And law school alone will not be enough to turn you from a person interested in law into a future law professor. Plus, you’ll always have the option of working as a lawyer if academia doesn’t work out. So we should think of your law school choices as opening and closing doors. Here are some choices to keep your door to academia open.

Go to a law school that produces law professors. Most law professors go to a relatively small set of schools. (See here and here.) This might be partly correlation, but it’s at least partly a mix of training and signalling. So if you want to be a law professor, you too should go to one of those law schools. (Others have criticized this fact about legal academia, but again our goal here is advice, not reform.) If you did not get into such a law school, try to transfer to one.

Get good grades. Not all law schools have the same emphasis on grades, but every law school has some way of differentiating among its students. Be one of the better students. By the time you’re applying to be a professor, most schools won’t care so much about your grades, but for now this is helpful. Grades open the doors to clerkships and other more selective legal jobs, which are in turn both good training and good credentials for being a legal academic. They also impress your professors, whose help you’ll want later.

Read widely. Ph.D. programs set a canon of articles in the field you should read. Most law schools don’t. Most classes will focus largely on cases, and even the non-case readings will be idiosyncratic. (There are some exceptions, like Chicago’s class on Canonical Ideas in Legal Thought, but even a single class on the canon can’t actually teach you the canon.)

But if you want to be a law professor, you need to read a lot of articles by law professors. This will help you learn what a successful article sounds like, what ideas have already been covered to death, and what will seen as a real contribution. You can go about this in many ways, systematic or unsystematic, but you need to start reading scholarship even when nobody makes you.

Start writing. Law professors write a lot. But again, law school is not focused on teaching you how to write legal scholarship, so you need to seek it out. Seek out classes where you’ll write a paper, and professors who will give you feedback on it. Take one of your better ideas, and do an independent study with a professor. These papers may or may not be publishable. (I wrote five major papers in law school and four of them have never seen the light of day.) But they are good practice.

Get to know your professors. Getting a job as a law professor requires you to show a bunch of professors that you have good ideas and can produce good scholarship. Who can help you figure out how to appeal to these hypothetical future professors judging you? Your current professors. (Not all of them, of course, some of them are probably clueless; but as a pool, they’re still a really important resource.) If you impress your professors they will also recommend you later, which is helpful, but even putting that aside they can help you learn to do better work.

That said, every year there are law students who wander into the office of a professor they don’t really know and say “I want to be a professor, can you help me?” This is the wrong way to go about it. Professors like to write and talk about ideas. The way to impress a professor is to write and talk about ideas with them. Do a great job in that seminar or independent study. Ask a professor if you can run a few paper ideas by them. In other words, integrate your professors into the process of getting good grades, reading, and writing. You can’t make up for bad work with schmoozing.

If you do these things, then we can talk about the next step . . . .

But Not All Law Professors’ Jobs Are The Same

I agree with lots that Adam has written below, except maybe one thing, which is his claim that the jobs of people that work at different schools aren’t very different. I do think there’s a lot of truth to this. Compared to both lawyers and other academics, the differences are indeed less extreme.

But let’s be candid about the ends of the distribution. There are superstar law professors, usually but not always at the very top schools, whose job is different than most professors. They are so famous (at least in their field) that their work automatically gets attention, giving them access to prominent publishing venues, government officials, etc. You probably follow some of them on Twitter. Some of them use this power wisely, some of them use it to say irresponsibly careless things, but their research choices and public impact look totally different than the rest of us.

The job also varies depending both on how good your students are and on how good their future prospects are. I don’t mean that it’s only fun to teach smart students, or future millionaires. But there are law schools where some faculty worry that their students are effectively being cheated — paying too much money for too little prospects of future employment (and perhaps even too little prospect at bar passage). Indeed, I have had friends who quit their jobs as law professors in part because of this.

Neither of these is the typical case. But at the same time, you shouldn’t decide you want to be a law professor just because your very favorite professor in law school seems to have an awesome job.

Do You Really Want to be a Law Professor?

Brennan’s book on succeeding in academia starts by asking: Do you really even want an academic job? So that’s where we’ll start too.

For most academic disciplines, this question should be answered before the first day of graduate school. This is in part because, in most disciplines, there are huge differences between possible academic jobs (e.g. being an economist can mean being a community college professor teaching introductory micro or being a MIT professor running experiments in Kenya). This is also in part because the school you attend will have a huge impact on what academic jobs you are likely to obtain. Taken together, these simple facts mean that you need to think about if being an academic is right for you before your post-graduate education kicks off.

But unlike getting most PhDs, getting a JD isn’t a waste of time if you don’t end up becoming a professor. Far from it. Law degrees from good schools create many great career options. Working as a law professor is just one of them. So the relevant considerations for the law version of this question—do you even want to be a law professor—are different than they are for other disciplines.

Or put differently, the key decision isn’t whether you should go to law school; it’s whether you should pursue an academic career or another kind of legal career after law school. There are plenty of trade-offs between these options. For instance, if you become a law professor, you have higher job security, but lower geographic mobility. I won’t try to list them all. But here are three that are worth thinking about.

First, being a law professor is a high average, low variance career. Most tenure track law teaching positions are good jobs. You get to teach professional school students, even the entry level classes are pretty interesting, and there is time for research. But the differences across the profession are pretty small, whether you look between schools or over time. For instance, I spent three years as one of the people responsible for helping the Chicago fellows on the market, and during that time, there was maybe a 2x difference in compensation or teaching loads from the best offers to the worst offers the fellows received. Similarly, whether you’re very junior or very senior, the jobs of people that work at a given school aren’t very different.

This is not true of private legal practice. Whatever metric you care about, once you are mid-career, there are order of magnitude differences between lawyers’ jobs. There are lawyers making four figures and lawyers in working in similar areas of law making eight figures, and there are lawyers that never set foot in a court room and lawyers that argue before the Supreme Court every term. Becoming a law professor makes it highly likely that you have a great career, but the cost of that great career is giving up a lot of the variance.

Second, given the low variance over-time, the relative advantages of being a law professor are greatest at the beginning and end of careers. When I first started as a law professor, I couldn’t imagine trading places with my friends that were associates at law firms. They were getting emails with urgent tasks from partners most nights; I was getting more emails from people pretending to be my dean as part of phishing scams than genuine emails from my actual dean asking me to do things.

But over time, that gap has closed. Each year, my friends at firms have more autonomy, get more important responsibilities, and do more interesting work. But if you are passably competent in academia, over time you will accumulate more service responsibilities and time commitments. (It’s true that responsibilities pile up in other lines of work too; but in academia each new responsibility is replacing freedom, not lower level work.)

The benefits of being an academic also seem to be huge in the last decade or so of your career. This is because, as I mentioned before, the trajectory of an academic career is pretty flat; so you’re ahead again when the curve of other careers takes a downturn. 

Third, many legal jobs primarily assess input, but being a law professor means you’re judged exclusively on output. At most firms, some amount of bonuses may be about the quality of your output (e.g. did you get good reviews, did you get a good result for your clients, etc), but the first order determinants of compensation are inputs (e.g. how many hours did you work). This balance may shift over time, and varies some by type of legal career. But at the end of the day, lawyers typically get credit if you’re seen working hard for your clients.

But as a law professor, no one ever cares about your input. It doesn’t matter if you spent five weeks or five years working on an article, it only matters what people think of the final product. The same is true with teaching. There are professors with reputations as being great teachers that are essentially charismatic people that wing it; and professors with reputations as being bad teachers that work tirelessly to prep their classes. Their effort doesn’t matter.

If you’re considering being a law professor, it’s worth asking yourself if you’d thrive in a system where you are evaluated this way. I frequently mention to lawyers that being a professor means that no one cares about your input. The first reaction is always jealousy: “I have to bill my time in six minute increments, but no one cares, or knows, how you spend your time?” My response is to always ask if they’d prefer their bonus to be based on people reading a brief they wrote and deciding if it’s better than a brief written by their peers. People then point out how unfair it would be to not get paid for all the hours you actually work.

Now, I should have probably done this right away, but let me lay my cards on the table. I think being a lawyer is a great job. I’ve talked to plenty of law professors that think actually doing the job they train their students for would be some sort of punishment. I don’t have the data to back this view up, but I always have a hunch that the law professors that look down on practice don’t actually know many lawyers. Or, maybe more realistically, when they interact with the lawyers they do know, they do more talking than listening. Because most lawyers I know—whether they are in big law or working as a public defender—have jobs that seems pretty great. But I do think my job is even better.

Why Good Advice on Legal Academia is Hard to Get

Getting good advice on how to become a law professor is much harder than getting good advice about succeeding in most other academic disciplines. The reason is simple: peers give the best advice. 

When you start graduate school in fields like economics, philosophy, or political science, there are ample opportunities to interact socially with students that are further along in the program. It’s not only easy to get advice from them; it would be impossible not to. Over weak coffee and cheap beer, there are constantly conversations full of tips on how to get ahead.

Want to know what classes are worth taking? What conferences are worth trying to attend? Where to find extra funding? What kind of research projects are hot on the job market? Other students will know, and they’ll be happy to talk about it. And perhaps most importantly, every year, the students that are furthest along in the program will go through the job market, so you can learn from their experiences.

It’s also easier to get good advice from professors. Young professors will socialize with graduate students in a way that I never see happen with law students, and even senior professors are frequently on a first name basis with graduate students in their departments.

But law school just doesn’t work that way. When you’re a 1L, the 3LS will have good advice on how to prepare for finals, bid on classes, succeed on law review write-on competitions, or land a clerkship. They have spent years learning how to game law school, and most are pretty good at it by their last year. That doesn’t mean that academically inclined students won’t offer advice to their peers about how to become a law professor—they just don’t know what they’re talking about.   

This brings me to Brennan’s book, Good Work If You can Get it: How to Succeed in Academia. It’s full of advice that’s likely old news to people with peers and professors that give blunt advice; but it’s still valuable for people that don’t have those networks. And in law, most people don’t have those networks. So I’m hoping these posts can help people trying to figure out if they want to be a law professor, and, if so, how to become one.

So tomorrow we’ll start dishing out our thoughts on succeeding in the legal academy. But throughout, there are two principles from Brenna’s book that will inform my posts.

First, giving advice and debating reforms are different conversations. My experience has been that people often quickly pivot from advice about how to succeed in legal academia to debating how legal academia should be reformed. For instance, my advice to (almost) anyone that wants to be a law professor is that they should do a fellowship. Now, it’s true that the de facto fellowship requirement may systematically disadvantage certain kind of candidates, and maybe we should reform them. But that doesn’t mean a current aspiring law prof shouldn’t be told fellowships are the surest path to success.

Second, the entry level market isn’t a lottery. That doesn’t mean that luck doesn’t play a role. We all know people that we think over or under placed (or that we think are excellent but failed to place entirely). But there are actions that people can take to improve their odds of success on the market. I’m going to focus on the steps people can take to do better; not on pointing out that there is some randomness in the process.

To be clear, I’m on board with reforming the legal academy and making the job market less arbitrary (and I’m collaborating with other profs on several research projects on those topics). But these posts aren’t about what should be changed; they’re about how to succeed in the current system.

Jason Brennan, Good Work If You Can Get It (as applied to the legal academy)

Earlier this month Adam and I both picked up copies of Jason Brennan’s new book, Good Work If You Can Get It: How To Succeed In Academia. This is one of the most candid, unromantic accounts of the job of a professor, how hard it is to get such a job, and what you can do to get such a job if you want one. (The book advertises itself as “candid, pull-no-punches”: “The hard truth is that half [of PhD students] will quit or fail to get their degree, and most graduates will never find a full-time academic job.”)

You can get more flavor from Bryan Caplan’s review:

Brennan calmly and crisply cuts through piles of misconceptions, lame rationalizations, and mountains of Social Desirability Bias to tell would-be professors the cold, hard truth about their would-be occupation.

Good Work could just as easily be called Everything You Ever Wanted to Know About Becoming a Professor… But Were Afraid to Ask..  He describes the main types of academic jobs, including the multitudinous low-status positions that excellent students rarely encounter first hand… but often end up occupying after grad school.  He teaches backwards induction: figure out where you want to end up, then line your ducks up in reverse order to reach your goal.  He urges would-be professors to start publishing ASAP:

As a graduate student, you are training for the Olympics.  You are trying to win a faculty job.  You will be competing against three hundred to one thousand people who are the best in the world at what you study.  Your least qualified competitors will be impressive people with decent credentials.  Your best qualified competitors spend all five (or more) years of graduate school teaching innovative classes, publishing papers in top peer-reviewed journals, networking with people around the world, and amassing a resume on par with or better than the resume of most currently employed assistant professors.  They spend their entire grad school career training to get the job you want.  If you want a job, you must not only be better than they are, but look better on paper.

Don’t like it?  Then maybe academia’s not for you:

Or from this interview with Brennan, including a list of tips like: “Prioritize Writing. Spend less time teaching. Have multiple projects at all times at all different stages. When you have a hammer, find multiple nails. Look for holes in the literature. Write first, read second.” Or “most service work is not worth doing, period, by anyone.”

Anyway, although I have some disagreements with Brennan’s account of academia, I found it a really helpful starting point for anybody thinking about it as a career path. But I also found myself wondering how this advice applies to the legal academy, which has some very important differences from the arts-and-sciences jobs that Brennan writes about:

• Our graduate school program is shorter, focused on being a lawyer rather than a professor, and much more expensive.

• There are a lot fewer law schools than there are colleges, and very few law schools where professors are not expected to do active research and publishing.

• Our publishing system is centered on student-edited law reviews.

And more.

We briefly wondered if we should try to dash off a book of our own, How To Succeed in Legal Academia, but it seemed like the audience for that book would be pretty small. (But, hey, if you are a publisher and disagree, email us!)

So instead, in the next few posts, Adam and I will provide our takes on Brennan’s advice, as applied to the legal academy.

Grades are a Product, Not a Punishment

The spread of COVID-19 has upended nearly all aspects of life in America, and legal education has not been spared. In fact, 100 percent of law schools have moved to online instruction for the reminder of the academic year. This change to normal modes of instruction has sparked a subsequent debate about whether law schools should also change their grading to pass-fail for the semester.

Some schools have already made the change. In a public memo on March 16th, Cornell Law School announced that it will move to a pass-fail system. Several other law schools—including Berkeley, Harvard, Michigan, and Stanford—have also announced some form of changes to their grading policies for the semester. And there has been at least one call, from Brian Frye, to go even further and eliminate grades permanently.  

It’s understandable that law schools are considering (at least temporary) changes to their grading policies. After all, the disruption that students and faculty are currently facing is unprecedented. Students are facing a complete upheaval to their normal study patterns at the same time that they, and their families, are experiencing stress over their health, safety, and finances. Similarly, faculty are facing a move to online instruction while juggling new obligations like providing full-time childcare. Moreover, these burdens are not equally distributed. Moving to pass-fail assessment is thus one way to help alleviate anxiety, ensure fairness, and free up time for students and faculty to focus on other pressing concerns.

But it’s important to remember why we grade students. At the most basic level, grades are a product we offer our students. This product has value to them for two reasons: they create incentives to learn and they provide assessments that can be used by employers, admissions committees, or other decisionmakers. Both of these things continue to be valuable, even during these chaotic times.   

First, it is important to ensure students still have incentives to learn, especially when there are more things than ever competing for their attention. And, even under the best of circumstances, it would be difficult to pay attention to lectures that are delivered via zoom. It would be understandable for anyone to check out when staring at hours of online lectures every day. Grades provide some accountability that will help students find a way to focus.

Second, it’s important we provide grades so employers and other decisionmakers can assess students. If we do not provide grades, it does not mean that people will stop screening students. They will just be screening students using different information. For instance, law reviews will still have to decide which 1Ls are elected as editors, they’ll just be deciding based entirely on first semester grades. Law schools that elect to not grade this semester are thus depriving students of the opportunity to improve their standing.

And students should want the opportunity now, more than ever, to be able to provide reliable signals of their quality. The reason is simple: a recession is the legal market is now all but inevitable. Legal hiring is thus likely to be down in the fall, and failing to grade students will just make it more difficult for those students to get jobs. Law schools that are deciding not to grade their students are not saving their students stress; they are just moving that stress to next fall, and beyond, when the employment market will be tight. Moreover, not all schools are making the decision to move to pass-fail. Schools that make the move while their peer schools still offer grades are essentially ensuring that their students will have difficulty competing for a dwindling pool of good jobs.

To be clear, neither of these considerations—the incentives to learn or the need for reliable assessments—are themselves sufficiently important to make it obvious that we should not switch to pass-fail grading. Instead, they are considerations that should weigh on the other side of the ledger.  

If we can no longer offer a reliable product, I’ll be the first to agree we should stop grading. And it might be the case that that the product will be unreliable this semester because grades will be too noisy, too biased (e.g. the burdens are borne too unequally), or impose too high of costs on students. All of these pressures on the reliability of grades may become sufficiently strong that grades become more noise than signal. At that point, there will be no choice but to switch to pass-fail.

But making that switch will have real costs to students’ learning and employment outcomes. So I hope that students understand that law schools that are continuing to grade them are not doing it as a punishment. Or that their schools are unaware that they are going through an extremely stressful and scary time. Law schools are continuing to grade students because they have paid a lot of money for a valuable product, and we shouldn’t take it away from them lightly.

Buckets and Scales

Adam’s post about rankings raises the general question of when it’s better to rank things using a granular scale and when it’s better to put them into bigger buckets. Granular scales give the appearance of (often false) precision, bigger buckets instead create big cliffs between one bucket and the next. I also share his intuition that law school rankings would be better — if we had them at all — on a bucket model than a scale model.

The same kind of question comes up in law school grading. Some law schools have a scale model with lots of available numerical grades (Chicago has 32). Others have more of a bucket model with 3 or so options (H/P/F, or sometimes H*/H/P/LP/F). Many are in between, with 10 or so options. My intuition is that grades are better on the scale model than the bucket model.

Why would it make sense for these to be different? I can think of two reasons.

1: Law students get lots of grades, but law schools don’t get lots of rankings. When the grades are going to be averaged over a bunch of courses, the resulting average number will already partake of a scale, so we may as well avoid cliffs in the inputs.

2: Trying to get better grades is good; trying to get better rankings is largely wasteful. Under a scale model, most people have a marginal incentive to do slightly better — to study a little more for a slightly better grade, or to lobby a little more for a slightly higher ranking. For grades, this is largely a good thing. The easiest way to get a slightly better grade is to study a little more and learn a little more law, which is valuable. For rankings, this is largely a bad thing. Much of what schools do in pursuit of slightly better rankings is zero-sum or rent-seeking activity.

This is just impressionistic, and I’m sure there are exceptions too. And of course, there may be times it makes sense for law school grades to instead switch to the ultimate bucket model — pass/fail. That might be a topic for next week.

The Fundamental Problem with U.S. News Law School Rankings

The 2021 U.S. News Law School Rankings were just released. Typically the release of these rankings leads to a round of criticism, where people point out that the rankings incorporate the wrong things or that they don’t do a good job of measuring the things they do incorporate. Many of these criticisms are valid. But the fundamental problem with the U.S. News rankings is not what they measure or how they measure it. The fundamental problem is false precision.

Every year when these rankings are released, some law schools jump up in the rankings and some law schools fall down in the rankings. This kind of churn is good for the ranking’s publisher because changes — and the possibility of changes — generate attention. For example, Above the Law’s post on the new rankings has the headline: “The 2021 U.S. News Law School Rankings Are Here. Check out some of the largest rankings tumbles and gains. Yikes!”

But almost all of these changes are just noise. Most of the year-to-year movements are not because anything meaningful has changed at the schools, but instead because of slight differences in a few variables. For instances, a few admitted students with lower LSAT scores can move a school’s median number down and trigger a drop in the rankings. This problem is exacerbated by the fact that there is measurement error in many of the concepts (like academic reputation) that the rankings are trying to quantify.

Given these problems, the law school rankings should be made less granular. It’s misleading to say that we have any confidence in the exact position of a law school in a given year (e.g “the University of Springfield Law School is the 35th best in the country”), but it may be possible to say a range with some confidence (e.g “the University of Springfield Law School is between the 25th and 50th best in the country”). Or, to put it in statistical terms, it is a mistake to focus on the point estimate instead of on the confidence interval.

Of course, if law schools were ranked in buckets where there are actually dividing lines, there would be some trade offs. For instance, it would take schools years to change buckets, and the costs of falling into a lower bucket would be higher. But a ranking based on buckets would present a more accurate picture of the world. And, as an added benefit, it would help stop the embarrassing practice of having to watch administrators take credit for minor gains or explain away minor falls each and every year.

Diversity and Law Reviews

Earlier this month, the Financial Times reported a depressing piece of news about diversity in the legal profession: less than 20 percent of equity partners at major law firms are women. But last week, there was some good news about gender diversity in the law: the editor-in-chiefs of the top 16 law reviews are currently all women.

This kind of development happens because there are countless amazing women attending law school, but it likely also happens because most law reviews have adopted a range of informal and formal policies to increase the gender and racial diversity of their members. In that last two years, however, some of these diversity policies have been challenged in court. Among other things, the lawsuits have claimed that diversity policies decrease the quality of the scholarship that the law reviews publish.

This claim has no empirical support. Jonathan Masur, Kyle Rozema, and I decided to actually study whether the adoption of law review diversity policies changes the rate at which law review articles are cited (which, although flawed, is the standard measure of research quality in academia). We pre-committed ourself to a research design before seeing all the data, used a range of statistical techniques, and we didn’t find any evidence that the adoption of diversity policies produces a drop off in article quality.

So the news that the leading law reviews are now led by women makes me hopefully that the legal profession can make progress increasing diversity overall, and it does not make me remotely worried that we’ll have to sacrifice quality to do so.