Legal Commentary

The other day, I asked Jeff Lipshaw to look over the paper of a person in his area who was going on the market after a few years in practice. I thought the feedback Jeff offered was the sort that could fruitfully apply to a number of aspiring scholars. In the comments, I invite you to offer your own thoughts. Here it is, with Jeff's permission, somewhat redacted:

1.  As a matter of style, use footnotes, not endnotes.  Scholars will want to see the basis for statements you are making.  It's a pain to go to endnotes.  Eugene Volokh has a nice template for creating a document that looks like a law review article.
2.  The overwhelming burden is to demonstrate to law professors that you think and write like a law professor, not a practitioner.  Be careful, therefore, about not falling into a practitioner's trap of using case cites to support empirical assertions.  If you are making an empirical assertion, one needs empirical data, or one needs to weaken the point, like "courts are still struggling with the issue." 
3.  Remember your audience.  It's not judges or practitioners.  It's other law professors.  Pure doctrinal work nowadays [is a risk] without sufficient theoretical or social science orientation for a hiring committee to say "whoa, now there's a practitioner who really gets it."  You really want to center your discussion in the scholarly debate on this issue, bringing in the cases to support your scholarly contribution.  Think of it this way:  how would you make this a piece that [some big dog in the area] wants to read and respond to?  A good thesis would state for example not that there should be uniformity and consistency in the law, but rather WHY the lack of uniformity and consistency in this area is a social problem, who in the academy has addressed it (or if you are the first, why that is), and why you are making a scholarly contribution.  If you have experience as a practitioner that informs your theoretical views, don't be afraid to assert it, even as "casual empiricism." [But be sure to know the limits of your method and and its opportunties.]

What I would emphasize is point number 3. Unless you're already a professor at Yale Law School, where the soft expectation is to create a literature rather than advance it, many good articles intervene in ongoing academic debates. Additionally, having courts as interlocutors (or your target audience) is a generally risky strategy compared to having other academics who have weighed in on an issue; it's especially useful to pick a debate where leaders have already made some claims and you want to show what's missing or overlooked in those accounts as a springboard for advancing your take. Of course, that advice does not apply to everybody. But it is probably worth your consideration; my sense, moreover, is that I suspect it's an important way to signal to law review editors that you are somehow advancing the discussion. Of course, I'd be curious to hear what others have to say about this topic.