Academic Writing and Publishing
To get and keep a job, either as a nonclinical or clinical legal academic, you need to produce legal scholarship. Be prepared to describe your methodology, your field or fields, and your scholarly agenda by the time you are ready to seek such a position. You may know your methodology, field, and scholarly agenda before you start writing your first article, but more likely it will emerge organically from what you write.
A few generations ago, the vast majority of legal scholars produced what would today be called “doctrinal” scholarship: works that explain, analyze, and criticize judicial decisions, often proposing to substitute one doctrinal test (e.g., cheapest cost avoider bears the loss) for another (e.g., no recovery absent breach of a duty of care). Many legal scholars continue to produce excellent doctrinal scholarship, especially in areas in which common law methods of judicial decision making are dominant (such as constitutional law).
However, the definition of legal scholarship also encompasses much more than just doctrinal analysis. Much fine legal scholarship analyzes law by bringing to bear the insights of other disciplines, including economics and other social sciences, history, literary theory, philosophy, and more. Some of this scholarship is purely descriptive; some is prescriptive; often scholars make both descriptive and prescriptive claims.
How should you go about selecting a methodology? If you have special training in a field that is relevant to a topic about which you want to write, you may decide to exploit that training. For example, if you have an economics Ph.D. or masters degree, or even if you just majored in economics in college, you could write about bankruptcy, tax, or torts from an economic perspective. Or, if you previously studied philosophy, you might bring that to bear on a paper on professional responsibility. But beware of dilettantism. If you only have a B.A. in history, your efforts to do legal history may come across to serious historians—including serious historians on law faculty hiring committees—as amateurish. Likewise, if you have never had any training in empirical methods, you may end up spending months or years carrying out a study that was flawed from the beginning.
Accordingly, most new scholars coming out of law school, a clerkship, and/or other practice tend to write doctrinal scholarship, because that is what they are most qualified to do.
Aspiring law professors often ask what subjects they should write about. The best answer is what interests you most, especially if your training or experience gives you a leg up. So, if you have been working as a public defender for four years, and you are keen on writing about criminal law and criminal procedure, you should do so.
Conventional wisdom holds that it is harder to get an entry-level job in public law (including subjects like constitutional law, public international law, and jurisprudence, even though jurisprudence also covers private law) than in fields on the “business side” of the curriculum (including subjects like corporations, securities, and tax). We repeat this conventional wisdom here, even though we have not conducted a study of the ratio of excellent entry-level candidates to job openings in each field.
Beyond the evergreen conventional wisdom, there are fads (and perceived fads) in legal scholarship. During the first dot-com boom of the late 1990s, for example, a great many aspiring legal academics produced drafts breathlessly explaining why the Internet was changing everything (unless they took the standard oppositional stance and said it didn’t really change anything fundamental). No doubt some people in this cadre of self-described cyber-lawyers got academic jobs. But many did not, or if they did, it was despite, rather than because of, their faddish choice of subject matter expertise.
If you are truly indifferent about field—if, that is, you would be equally delighted writing about corporate tax as you would be writing about the Hart/Dworkin debate—then you might want to go into a field with greater demand relative to supply, assuming you can identify the right field. However, most people are not indifferent as to subject matter and have subject matter-specific expertise. Moreover, your work will be better and easier to produce if you write about what genuinely interests you.
More broadly, the lesson here is something akin to the efficient capital markets hypothesis: If you go into a field simply because you think that it’s an area of high demand, others will do the same, and you will needlessly forfeit the comparative advantage you have when you write about what you really know and love.
If you’re lucky, you’ll have more topics about which you want to write than papers you can complete before you’re on the market. The best topics will come to you organically. Perhaps you took a seminar that piqued your interest in a problem, or perhaps you worked on an interesting case that concerned an unsettled question of law. Often the best ideas arise out of confusion: You don’t understand how some doctrine (if you are a doctrinalist) operates, and the more you read, the more convinced you become that no one really understands it or it’s flawed in some other regard. Then you hit upon a way to explain or improve the doctrine.
You can increase your odds of remembering ideas that arose organically by keeping a list (preferably as a computer file that you back up somewhere safe) of potential article ideas. Many of these will not pan out, either because someone else will have already written the definitive treatment of the issue, or because, on reflection, you conclude that your idea is wrong, obvious, or uninteresting. But some will pan out. You may have to start research and writing an article idea to determine whether it’s right for you. This is not wasted time, even if you end up not writing about any particular topic, as the research and writing process will help you find what you want to write about.
There is no single answer to what makes a good law review article, but certainly it helps to have an original idea that you describe in engaging and persuasive prose. Some of the best articles argue for counterintuitive conclusions because ideas that are counterintuitive are more likely to be original than ideas that conform to most people’s intuitions. Of course, many counterintuitive ideas are simply wrong. (E.g., “Repeatedly poking yourself in the eye with a sharp stick improves your vision.”) The main point here is that you want to make a contribution to the scholarly literature by saying something that’s original, interesting, and at least arguably correct. Absolute claims tend to be indefensible. (E.g., “Because the process by which the Reconstruction Amendments did not comply with Article V of the Constitution, courts should treat them as illegal.”) You will often be able to make a watered-down but nonetheless still-interesting version of such a claim. (E.g., “Conventional accounts of constitutional change do not adequately explain how amendments that were adopted extra-legally can come to have the force of law. This article offers a new explanation.”)
You also need to find a topic at roughly the right level of generality. As an unknown author (for now!) you should probably avoid the “hot topics” that many more senior scholars will be writing about. These included the O.J. trial, Bush v. Gore, and the Hamdan case when these events were news. However, you should also try to avoid writing about very obscure issues of interest only to specialist practitioners in a sub-field (such as the ambiguity in some new regulation governing some particular kind of tax shelter). At the same time, a new academic with a new “theory of everything” will not be taken seriously. Your challenge is to find an interesting and timely topic with respect to which you can say something novel and persuasive.
If you’re still not sure what counts as a good topic (and even if you think you are), take a look at the last couple of years of the top law reviews, paying attention both to articles in your field and outside of it. This will give you a good sense of what kinds of topics are current. Remember, though, that a topic that may be appropriate for a senior scholar in your field (e.g., “Globalization’s Impact on Domestic Law”) may be too broad for you as a new scholar. Conversely, remember that Student Notes tend to be narrower than most good law review articles.
As a result of a 2004 study, 11 leading law reviews issued a joint statement indicating a desire to publish shorter articles than had become the norm. The new norm is no more than 40 to 70 law review pages, although individual journals have their own more precise guidelines. For example, the Harvard Law Review gives preference to articles under 25,000 words, while the Columbia Law Review is a bit more generous to the verbose, preferring articles under 32,000 words. Although some journals do not adhere to these guidelines, many do. Unless you have a very good reason, you should aim for the 25,000-word limit.
Obviously, we have just barely scratched the surface here. For excellent and much more detailed advice on academic legal writing, consider Eugene Volokh’s book, Academic Legal Writing, which also contains tips on other aspects of the legal scholarship enterprise.