an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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.
Tenure is ripe for reassessment because law schools have an unusual and often extravagant view of it. While most academic departments are staffed with hordes of non-tenured lecturers, research associates, instructors, and others, in the law school, there is a strong sense that if you are there full-time, tenure is an entitlement.
The traditional reason for granting tenure in a university is straightforward. Tenure provides the security that encourages researchers to explore all questions without fear of being fired. Tenure therefore helps grow the stock of knowledge. Yet tenure in the law school is only loosely related to this goal.
Law professors who engage in scholarly research and writing—typically the full-time doctrinal faculty members—have the strongest claim to tenure. Yet many law schools that honestly evaluate their tenure practices will surely conclude that tenure is given too generously. For one thing, in most law schools, the standard to receive tenure is very low. Many schools require faculty members to have produced just three or four articles published in a student-edited journal. Few schools deny tenure with any regularity to faculty members they have hired pre-tenure. Thus, in general, getting the initial appointment is the hard part in the process; getting tenure five or six years later is comparatively easy. Given that there are many, many well-qualified individuals who try but fail to obtain an initial teaching position, law schools could likely enhance their tenure standards and shrink the number of tenured slots (thereby reducing their costs) with little impact upon the availability of talented entry-level professors.
The other big problem, of course, is that there is no guarantee that the tenured doctrinal professor will continue to undertake research and generate knowledge. As a result, many law schools today have an unhealthy contingent of unproductive and under-productive tenured faculty members. The law school looking at tenure will want to think about how to reduce or eliminate the expense associated with its dead wood (for example, by increasing teaching or administrative responsibilities or striking deals for early retirement).
In some schools, tenure is given to clinical faculty members. There is little justification for this in light of the traditional rationale for tenure. Moreover, the law school that wants to heed the loud calls to expand clinical opportunities in order to produce skilled graduates will find tenure incompatible with that goal. 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.
Sometimes, writing instructors also have tenure. Teaching writing is a difficult job but if the reason for tenure is to protect academic inquiry the law school writing instructor does not need it.
Finally, in many law schools, the head of the library is tenured. This one is a real puzzle. While law librarians obviously perform a valuable service, with rare exception they are not engaged in their own scholarly research (nor do we want them to be). Presumably the tenured librarian is a product of history (once upon a time law schools were not real academic departments: if you tenured a lawyer who arrived to teach, nobody minded if you tenured the librarian as well). If one were to consider things with fresh eyes, few law librarians would also be tenured professors.
To be sure, tenure in the law school might reflect some other value such as a desire to hold onto somebody who is exceptionally skilled or who makes important contributions to the institution. But there are other perks that can serve that goal, without incurring the expense and inconvenience of a lifetime commitment. And if there really is competition for a particular individual, a grant of tenure isn’t going to be enough to fend off poachers.
The cost-conscious law school of the future might well have a small number of tenured professors (perhaps comprising 20% of the faculty at some schools) whose main job is to engage in serious research. Some other members of the faculty will have long-term contracts; some will have short-term contracts; others will be (like most employees in the United States) employed on an at-will basis. Posted
by Jason Mazzone [link]
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 muchresearch 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.
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.
Mark Regan 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.
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