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Tuesday, August 09, 2005

Publishing while practicing (I): Questions about resources

While in practice at a "Biglaw" firm, I wrote and published two law review articles. I've been asked by many people, over the course of the past few years, how I was able to publish while practicing. Since this seems to be a topic of some interest, I'm putting up a series of posts about it.

This question is of particular importance for people interested in entering legal academia. To break into the market, one needs publications. But how does one get those publications while in practice? Some aspiring academics leave practice for fellowships like Climenko or Bigelow, and are able to write then. But for many others, fellowships are not an option (for geographical, financial, or other reasons), and so publishing while practicing is the only possible way to break into the market.

I'll preface this post by noting that this post will discuss things that I've learned or observed in my own experience. Many people publish while practicing, and there is certainly more than one way to go about the process. I'll offer my own suggestions, and hope that others weigh in with comments on what worked for them. Also, I'm going to split this topic up into a series of posts. Part I will deal with resources, part II with special programs, and part III with ethical considerations.

Now, without further ado, let's talk about the resources you'll want to acquire to start publishing while practicing.

First, you'll want a good knowledge of how the law review publishing market operates. There are a number of resources available on that front. Eugene Volokh's book is highly regarded. I wrote up my own little discussion of the process a while back, and it is available on the Columbia Law School website. And there are other resources. Go over these, and get a sense of the submission seasons and the expedite process. Get to know Express-O. And so forth. As a practitioner, you'll have many things working against you. Don't let lack of knowledge be one of them.

Second, you'll need to find a way to do legal research. Doing Westlaw and Lexis research on your own budget is prohibitively expensive -- Westlaw charges $500 for a single search sometimes. Depending on your firm, you may be able to run some searches on a general-use account (but be careful with that, and know your limits). After that, it gets dicey. I've known of people who have borrowed ID's from family or friends for research. Also, there are a number of free or less-expensive research options. You should know the local law libraries; you can run searches on sites like findlaw and law.cornell.edu (which has Supreme Court opinions and some lower court opinions); you can hit Hein Online and Loislaw. Finally, you can just run google searches on topics. These fill-ins have their limits. (For example, Hein Online, has most old law review articles, but can't run complex searches like Westlaw. If you already know that you need 2003 Wisc L Rev 1115, you can get it at Hein. But if you want to run a search for articles about jury nullification, you're going to need a full-service database like Westlaw.) Also, if you do get temporary access to a free Lexis or Westlaw ID, use it to do as much research as possible and print up what articles you'll need. (I thought of this after my free orientation Lexis ID expired, alas).

Which brings us, after the stopgaps, to the best solution here (one that I wish I had discovered earlier in my own process) -- talk to your alma mater about getting a permanent Westlaw or Lexis ID for academic use. You're a J.D., and your school has an interest in helping you become an academic. (The person you'll need to talk with will vary by school, and may be a professor or dean or librarian. Check with your contacts and find out who you need to talk with). This is the best route for securing a Westlaw or Lexis ID for use in doing your academic research while in practice.

Third, you should contact your school and find out what kinds of help they may have available. You may be able to get library access, research tools (like the Westlaw ID!), or other help.

That concludes the resources portion of this topic.

Posted by Kaimi Wenger on August 9, 2005 at 03:41 PM in Life of Law Schools | Permalink


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» Publishing While Practicing: from The Volokh Conspiracy

Kaimi Wenger (Prawfsblawg) gives some tips.

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Tracked on Aug 9, 2005 4:22:25 PM

» On publishing while practicing . . . from Where's Travis McGee?
Kaimi Wenger has an interesting post at PrawfsBlawg about finding the time and resources to publish while practicing law. My problem with publishing has more to do with my kids and procrastination, and bad-time management. I can hardly blame my [Read More]

Tracked on Aug 11, 2005 11:05:47 AM


Unless you need access to very esoteric materials, Lexis has a deal designed for solo practitioners that seems decent - you pay by the day or week, and can then conduct unlimited searches of caselaw. You can't seem to search law review articles directly, but I've been able to perform rudimentary literature searches by Shepardizing relevant cases.

Posted by: academic practitioner | Aug 24, 2005 10:42:01 PM

Thanks for the informative response.

Posted by: Yuval Rubinstein | Aug 10, 2005 9:08:49 PM


If they are willing, and have time, that is a great option. Keep in mind that they might be trying to get out work of their own when you need them, so ask in advance. As I said, I think the audience problem is substantive, not procedural -- i.e., you want *good* readers, not just folks for the star footnote. And it is hard (but not impossible, as you point out) to find folks who are familiar with the literature, willing to put in the time, and kind enough to give you tough constructive feedback.

I found, incidentally, that sending out reprints of my first piece helped garner a reader or two for the second.

Posted by: Dave Hoffman | Aug 10, 2005 9:01:56 PM

Professor Hoffman,

Regarding the lack of an audience for your pre-hiring scholarship, do you think it's sufficient to run your works-in-progress by professors from your alma mater with whom you developed a relatively personable relationship? I just graduated from law school this spring, and I'm planning on emailing drafts of my paper to professors from my law school who are knowledgeable about the subject matter. Does this constitute at least a reasonably sufficient "scholarly audience," in your opinion? Thanks.

Posted by: Yuval Rubinstein | Aug 10, 2005 5:30:05 PM

In response to Jim and others' wringing their hands over the passwords--isn't it true that all legal information is basically controlled by a duopoly? and that their unreasonable access terms effectively amount to a form of copyright misuse? in that case, it may well be appropriate to challenge at least the margins of that illicit market power by flouting unreasonable terms.

Judge Posner has some good work endorsing the misuse doctrine as a brake on contractual overclaiming by copyright owners.

Posted by: Copyright Skeptic | Aug 10, 2005 4:19:40 PM


In terms of resources, I think Brian has it right: the big thing that practicing lawyers can't get is scholarly readers. This is a problem for preemption, but has two other effects. First, having folks who are willing to read your pieces improves placement because it improves readability and coherence. Second, it improves production (making writing more social creates expectations).

This lack of a sounding board is one of the reasons why it is my sense that most folks in the academy treat pre-hire articles as a one-way ratchet: if they are good, more power to you; if they aren't, you're excused.

Posted by: Dave Hoffman | Aug 10, 2005 3:04:54 PM

As someone who published two articles while working as a public defender, I wanted to chime in with my advice. First, SSRN was my #1 resource. I did not have any Westlaw/Lexis law review access, but since so many people are now posting at least first drafts on SSRN, I got much of what I needed there. Second, any articles/books I couldn't find on SSRN, I went to my city bar library (always join your local city bar, it usually has great resources) and would xerox the articles I needed. Books I got from my local public library. Finally, if I really needed something that I couldn't find anywhere else, I would ask one of my academic friends to obtain it for me--but I tried not to abuse this.

Also, I wanted to differentiate the fellowship from the visiting law prof. position. Many visiting law prof positions do not leave you with very much time to write, since you will usually be teaching a full course load. If you are a first-time professor, you will be spending most of your time preparing for your classes! Although you will of course benefit from being on an academic faculty, talking to other professors, and using the school's resources, you will probably spend most of your time on the teaching end. Most fellowships, on the other hand, are primarily focused on writing and have fewer, if any, teaching requirements.

Not that being a visiting law prof isn't a great experience before or while you're on the market (I am currently one now), but aspiring profs should be realistic about how their time will be spent.

Posted by: Laura I Appleman | Aug 10, 2005 11:09:59 AM

Don’t forget your local library. They can
1) ILL just about every journal article (including those not on HOL, WL, or Lexis)
2) ILL obscure books in English and other languages

Sure, it might involve talking to non-legal librarians, but most local libraries let you make requests online and pick them out in a week or so.

Posted by: S.cotus | Aug 10, 2005 10:56:33 AM

One big resource you forgot, KW, is the audience. In my experience it's been incredibly hard to get any kind of scholarly response, which means it's hard to know whether what you're writing is totally stupid or completely familiar and obvious (a constant fear of mine). With Westlaw / Lexis you don't get much book coverage, and who knows if somebody's written a great book covering just what you want to say? Well, professors know, and that's why it's important to get them to help you with your project.

Although readers were hard to find, if nothing else, I could usually get a sort of preemption / 12(b)(6) check -- with enough lunches and e-mails, you can get a sense of whether your premise at least sounds plausible. It's a lot better to make sure of that before you spend 6 months writing...

Finally, (immodest cough) you left out Connecticut and Florida State.

Posted by: BDG | Aug 10, 2005 10:29:32 AM


I placed in Wisconsin and American as a practitioner. My friend and former colleague Dave Hoffman placed in Illinois and Alabama, as well as being my co-author on the Wisconsin piece. Dan Markel placed in Vanderbilt and Minnesota. My classmate Brian Galle (at DOJ) placed in Brooklyn, and my friend Nate Oman (practicing at Sidley) just published in Michigan, after articles in Denver and Pace.

Those track records aren't an unbroken string of Harvard-Yale-Columbia, but they're not bad placements. Based on my observation, the common perception (that practitioners can't publish) overstates the reality.

Posted by: Kaimi | Aug 9, 2005 10:56:50 PM

The other problem for the practicing lawyer, which has been discussed elsewhere, is placing your paper in a decent law review. Most law review editors have a distinct bias against anything not written by a professor. I'm curious how high a practicing lawyer can place a piece. Not high, I would imagine.

Posted by: Prof in waiting | Aug 9, 2005 10:19:28 PM

Honestly, I'm surprised that asking your alma mater worked. I presume somebody at the law library asked their Westlaw and Lexis reps for permission to give you a password. I'm a law library director, and it would not have occurred to me to ask that. My point was that the academic Westlaw and Lexis contract takes the decision is out of the hands of the law librarians and the law school.

Posted by: Jim Milles | Aug 9, 2005 10:17:07 PM

It doesn't affect the amount of the bill, but it sure affects which clients pay for it.

Posted by: adam | Aug 9, 2005 5:56:20 PM

Don't forget SSRN as a resource. Searching the database is free, and many more working and accepted papers are being posted there, especially in corporate law. Many of the papers may not in their final, preferred-citation form, but you can do your preliminary research on SSRN and fill in the actual cites just before submission.

Posted by: Matt Bodie | Aug 9, 2005 5:53:26 PM

Aren't most "biglaw" firms on a fixed cost account? That is, wouldn't most of these firms not care a whit how much an associate ran up in unreimbursed research charges, since those charges don't affect the bill from Westlaw/Lexis? (I suppose they might care that a lawyer is spending all her time researching her own projects, but that's another concern entirely.)

Posted by: Thomas | Aug 9, 2005 5:34:42 PM

When I was in this situation I spoke with my firm’s Westlaw rep and got a password for academic use, which solved the problem.

Two things about fellowships or visiting assistant professor positions. First, a lot of people who get them have already written. Second, the way the teaching market works, you need to have publications to go on the market the year before you teach. So say you get a fellowship and leave practice next fall with the intention of becoming a law prof. At the same time you are quitting your job to take a fellowship that will supposedly give you time to write, you need to go on the market to get a job for the next year. So as a practical matter, if you are practicing and want to teach, you have to find time to write. (And Kaimi, isn’t time the greatest resource you need?). It is hard to do, but it is possible, even working big-firm associate hours. If you can manage it, there is an upside - people on the hiring side are always impressed by people who can practice and write.

Posted by: Ben Barros | Aug 9, 2005 4:52:54 PM

Jim Milles,

I'm not familiar with the Westlaw/Lexis contract terms myself, or how my alma mater worked that out. I do know that I was able to use this route myself (perhaps the school was able to get an exemption of some kind?). And I'm aware of others who have done the same thing. (In my case, and I'm sure in the other cases, it was made very clear that this was an academic-use-only ID. This wasn't a problem, since my employer had already given me a client-use ID, and I was always very careful to keep the two separate.)

It certainly beats asking your younger sister in law school if she'll run some searches for you. (Which was the M.O. of one practitioner I knew!)

Posted by: Kaimi | Aug 9, 2005 4:35:07 PM

talk to your alma mater about getting a permanent Westlaw or Lexis ID for academic use. You're a J.D., and your school has an interest in helping you become an academic.

I feel compelled to point out that this method, as you describe it, would probably violate the law school's Westlaw or Lexis contract. Most law librarians I know would feel legally bound to refuse such a request. One exception might be if the person requesting the ID is an adjunct instructor at the school. Adjunct teaching is probably a good way of getting a feeling for whether legal academia is where you want to be.

Posted by: Jim Milles | Aug 9, 2005 4:26:48 PM

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