Tuesday, May 15, 2012
Tenure and the Law School
Law schools face increasing pressures to reduce the costs of legal education. While few people like to talk about it, tenure must be a key component of any cost assessment. In many law schools, salaries comprise a large portion of the annual budget. Tenure is especially expensive because it means an institution grants a (virtually) lifetime appointment without any guarantee that the individual who is tenured will continue to produce at a rate that justifies the salary paid. Tenure is also costly because it reduces an institution’s flexibility: the institution cannot (easily) move somebody out to make room for somebody who would add greater value.
There are many arguments to be made about clinicians and tenure, but I found the brush-off you gave them in this post to be a little odd.
It does not take much research to recognize that today, clinicians are if anything more likely than the rest of us to do work that is sufficiently politically controversial, even politically explosive, to cause powerful interests to try to get them fired (or at least to try to get them to abandon their projects). To my mind, this is very much in line with the most traditional line of justification for tenure.
Any evidence that tenured professors tend to publish more controversial work than non-tenured? My guess is it's actually the opposite: to get published in a top journal, you have to say something original and often controversial, and since tenured people have less incentive to get published at all costs, they would seem less prone to this type of work. (Which I think is a good thing: there's usually a reason something hasn't been said before - it's wrong. Legal scholars often seem to get less excited about saying something useful than about saying something original - if giving out tenure dulls this urge then that's a mark in its favor.)
Also regarding clinicians: My school tenures clinicians on the same terms as doctrinal faculty, with the same expectations for scholarship and publishing. There is no inherent contradiction between scholarship and the fact that your course load happens to include clinic. We also have several tenured/tenure-track faculty who teach a section of legal writing as part of their teaching package, along with their doctrinal courses.
At other schools, I know quite a few people in non-tenure-track legal writing and clinical positions who are nonetheless expected to publish. That is a step toward the model being used at the rest of the university, which is downright pathological and should not be the model for reforming law schools.
I can see arguments in favor of tenuring librarians, that we don't want them censoring the materials available (which, at a guess are frequently hard to get on one's own).
Tenure gives folks who are in a position to hire/lead others confidence to hire/promote people who are stronger than themselves. I've always found this to be a strong (and seldom enumerated) function of tenure.
"In a rapidly changing legal marketplace, giving tenure to a clinician is a risky bet: once the demands of the market change, the school cannot then hire somebody else with the qualifications to teach the skills that are newly needed."
That is simply not accurate. The skills needed in a clinical program are not changing any faster than the skills needed in the profession as a whole.
Legal Services Institute (Jamaica Plain, MA), 1982-83
The best argument that I have heard for tenure (from an economist at Chicago) is that it forces schools to make hard choices about the academic quality of junior professors. It's much easier to just keep them, especially if they are good teachers and everyone likes them. Letting people go is always unpleasant. But if keeping them means you have to keep them forever, you take a much harder look at their scholarly work.
Now obviously this rationale only applies to the very top research universities where tenure is pretty hard to get. It doesn't apply to most schools.
There is a confusion between titles and competencies. A rational approach would be to open tenure to any faculty member who wanted to be on tenure track and who met the qualifications. A relevant criterion, perhaps, is scholarship, so if the clinician or the librarian is doing scholarship of a certain quality, what's the problem? There is a problem with the idea of scholarship, though. Some scholars don't write a lot; or they write slowly; or they do other things well, like teach and inspire students. What are the substantive attributes or qualities of someone who truly deserves to have a tenured seat on the faculty? That your approach does not get at this is suggested by your dismissive attitude towards folks not hired to teach substantive courses. Whatever the solution is, and whatever the real problem is, it is unlikely to be understood by reference to an ideal, immutable, mandarin class of professors, the truly entitled who crank out papers and other honors in machine-like fashion according to some universal standard.
A big problem with that approach is that publishing, even in good journals, is not necessarily a sign of scholarly competence. This is necessary since it is a kind of gift to be creative and there are not enough creative folks to fill all the professor slots. Having the capacity to write dense prose and use big words in complicated ways [that impresses law students and bureaucrats] is not the same thing as having original thoughts; nor is skill of renaming common things and then producing scholarship as though some new thing has been discovered. That is the gift to the community of one of the most highly ranked law schools. Hart, Foucault and POMO can only go so far. This raises questions about what it means to be a legal scholar, as opposed say to someone trained in a scholarly tradition. Many otherwise highly qualified young law professors are not familiar with the scholarly life of the mind, what it means to delve into the depths of a subject; and that kind of training cannot be found in most law schools. Legal scholarship of that quality requires scholarly training in other disciplines, such as political theory, economics and philosophy. Why should someone not trained as a scholar be tenure track? Should we demand of tenure track faculty that they exhibit scholarly competence, and not simply by getting articles accepted in student-edited journals? Clerking, and serving time in big-law, are no substitutes for scholarly work. They are good for understanding legal opinions, and how a practice of a certain kind works, but not for understanding the law in a scholarly way.
Another problem that wreaks havoc in this discussion is the presence of a universal norm, when in fact the customary norms are not universal. There is wide disparity in the intellectual caliber of academic communities, and therefore a natural relativism as each of those communities solves its problems in ways appropriate to its communal life.
If the problem is tightening up the mandarin class, the heart of the matter is that most mandarins will eventually slack off; they get gray and are killed or eaten by the young. Tenure then addresses the real anxiety, fear, that one will grow old and be thrown out of the academy, the place one loves and to which one has devoted one’s life. Tenure is to protect incompetence; to protect the incredibly diverse ways creativity manifests, if there is any; and to recognize a system of protection for the old professor. The idea it is there to protect freedom of expression seems to have been imported from the idea of life appointment to the federal bench. I think the comparison between the freedom needs of the federal bench and the professoriate is inapt. In any event, tenure does not necessarily protect the professor against all attacks. Professors who criticize sacred cows still get sacked, tenure or not. Those are big framing cows though, or powerful political ones, and most academics, whether right-wing or not, easily avoid them.
To finish the thought (outside of 4,096 characters including spaces): to address the problem of tenure, start with the status and condition of the professoriate at the end of the career, not at the beginning or maturity.
Another problem that wreaks chaos in thisbuywindows7keys.com conversation is the use of a worldwide standard, when actually the routine standards are not worldwide. There is large difference in the perceptive quality of educational areas, and therefore a organic relativism as each of those areas resolves its issues in ways appropriate to its public life.
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