Brian Leiter's Law School Reports

Brian Leiter
University of Chicago Law School

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Saturday, September 10, 2005

Rising Tenure Standards?

An untenured law professor writes:

I hear that one law school has recently tripled, from 2 to 6, the number of law review articles required for tenure and is now also asking that profs going up for tenure be a recognized national leader in their area of the law and have a book contract in hand.  I understand this has been rather demoralizing for those who came in under the previous regime and are now having to scramble to accomodate the new requirements.  Would you mind posting this...and asking if folks at other schools have had experience with such sharply increasing tenure requirements.   Have such sharp increases been seen at other schools and what are the standards at other schools these days (this one is in the top 60)?

The tenure requirements described here are more like those you would expect at a top ten philosophy or history department; even the top law schools don't have formal expectations like this.

Comments are open, and, because I am on the road a bit, there may be some delay in their showing up, so please be patient.

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Well, you know, folks in other disciplines have service requirements and teaching requirements, too. And they don't get paid as well as you do. And yet they often manage to publish a lot and get tenure.

Six articles doesn't seem that tough to me, though I wouldn't think you could expect six "top ten" articles. Recognized national leader seems awfully tough but also very vague. Book contract is kind of odd, though. Usually that would be more lieu of so many articles. But it's pretty easy if they're flexible on the press publishing the book.

Posted by: frankcross | Sep 10, 2005 11:20:16 AM

Just to clarify my own view: I'm not at all opposed to tenure standards like this. I do think they are quite unusual for law schools, but so much the worse for law schools, as it were. I also think there is a tricky question about whether it is appropriate to impose such requirements retroactively on faculty hired under different standards. But I can see why a school that wants to "move forward" might want to do this. Basically, I agree with Frank's comments.

Posted by: BL | Sep 10, 2005 5:05:52 PM

One response I have to Frank Cross is that I think that people from certain other disciplines (especially the science/engineering fields) have a lot easier time publishing articles. For the law field, there is no such thing as the five page article with eight co-authors (five of them being graduate students in the lab) with the faculty member sometimes basically being thrown in. I think anyone who is a science/engineering Ph.D knows what I am talking about. Those faculty members routinely "publish" two-three articles a year. So it is often apples and oranges to bring up the publishing levels of folks in other fields.

Posted by: Practicing Lawyer | Sep 11, 2005 8:56:59 AM

Practicing Lawyer,

I came to law school after earning a doctorate in the arts/humanities, so please allow me to disabuse you of the notion that legal academics are at a disadvantage in obtaining publication.

While it's true that law profs can't free-ride on their students' work in the same way as scholars in the sciences, I think that this is more than compensated for by the absurd abundance of potential outlets for publication, combined with the lack of expertise of the editors. What other field boasts hundreds of journals edited by students?

I'm articles editor on a prestigious specialty journal at a top-10 law school, and probably 10-15% of the submissions we receive are barely-altered recyclings of articles that have been published elsewhere. In terms of labor required for publication, I don't think that the sciences are any less lax than law. Moreover, publication in the humanities is, as a general rule, far more difficult than in law--far fewer journals, almost all of them peer-reviewed.

Finally, if you take a look at some of the articles published in second- or third-tier journals, I bet you'd quickly re-think the idea that the pre-publication filter in legal academics constitutes much of an obstacle.

Posted by: Marc Johnson | Sep 11, 2005 11:00:20 AM

Should be "I don't think that the sciences are any MORE lax than law."

Also, I should add that a number of the recycled articles that my journal receives (and rejects) end up getting published elsewhere.

Posted by: Marc Johnson | Sep 11, 2005 12:19:02 PM

To be fair, Marc, what percentage of the articles recycled come from professors up for tenure? It's not like tenure committees wouldn't *notice* that the person was rehashing the same old tired stuff again and again.

In my experience, the articles we get from young faculty are almost always good tries. Not always stuff that we decide to publish, but usually good-faith submissions.

Posted by: Heidi | Sep 11, 2005 2:02:02 PM

Although the formal rules aren't changing, I believe the "one article a year" standard is catching on quite quickly.

Posted by: Dave Hoffmand | Sep 11, 2005 2:06:28 PM

I suspect that the standards in law are going to rise--rather dramatically--in the next few years. As universities become more consumer-oriented and more cost-conscious, central administrations are going to look increasingly closely at all tenure files. And they'll look especially closely at the files of law faculty, who earn dramatically more than their counterparts in the humanities and social sciences. This is independent of anything going on within the legal academy--though I also think there are strong pressures to ramp up the quality and quantity of scholarship within the legal academy.

So I would expect closer scrutiny of teaching (in terms of student evaluations as well as enrollement), service, and especially research. The later will include increased scrutiny of the quality of articles (for example, central administrations will demand that articles be referred by outside experts), as well as the quantity.

I'm not surprised that some top 60 schools are moving up dramatically the publication requirement. But the book contract seems excessive. Six articles and a book contract in five or six years?! Yikes. I'm not sure that's realistic unless someone already has a research degree before entering teaching.

I think law faculty often push to write a book before they're ready. Requiring a contract for tenure will only increase that problem. A book should be more than a few law review articles strung together; it should be a sustained argument that justifies the extraordinary commitment of resources on the part of a press.

One other (I hope related) point: it's often a bad idea for junior scholars to seek a contract before they have a finished manuscript. The best presses are often reluctant to write advance contracts on unknown authors. So to get a contract with a top press will often (though not always) require a completed manuscript. Asking for advance contracts may push promising faculty to sign up with presses before they're ready.

At some point, I hope Brian Leiter will address in more depth the issue of book contracts and selection of presses.

Posted by: Alfred Brophy | Sep 11, 2005 3:59:23 PM

My top-ten law school requires "2-3 articles or the equivalent." But the standard is unwritten, and no one knows quite what it means. It's been a while since a big battle over tenure and junior faculty are nervously wondering if someone's going to be turned into an example. For non law readers, I should make it clear that "3 articles" doesn't mean 3 20 pagers. It means three big honkers, 100 pages or more each. Since time to tenure is usually only four years that's not as trivial as it may seem from the outside. Question: will it change if article length in major law reviews gets shorter? I'd sure rather write ten 30 page articles than three 100 pages articles, and they would probably be better articles, too.

Posted by: Anon | Sep 11, 2005 5:24:48 PM

It also depends on what counts (ie, how short articles [or book reviews?] can be), and whether the top journals' new rule of shorter articles changes things; six 40-page articles is much more feasible than six 75-110 pagers for most young faculty.

An important related issue is whether schools will really do tenure denials when tough standards aren't met. There's a long custom at many law schools of rarely or never denying tenure, and many schools feel market pressure not to do so. Colleagues at one top school tell me they consciously stopped doing tenure denials some time back because top entry-level candidates told them, more than once, "you have a record of denying tenure and equivalant-school X doesn't." The legal academy needs some collective action not only raising standards, but enforcing them.

Posted by: Darryl Brown | Sep 12, 2005 7:02:37 AM

Here is a question for Brian that flows from Darryl's comments, above. How important is it, really, for law schools to enforce tougher tenure standards? I know the proposition sounds self-evident, but in terms of rankings such as yours, does it really "hurt" a top school to have a certain percentage of, um, people who just aren't so hot in the scholarship department?

I was actually wondering about this from the persepctive of spousal hiring, etcetera. Take the following not-uncommon hypothetical: a top law school wants to hire Ms. Marvelous, who is married to Mr. Mediocrity, also a law professor. Ms. Marvelous, a loyal spouse, says, "You can't have me without also hiring my beloved!" Should a smart law faculty say, "One star benefits us far more than one dud will hurt us?" Or should they say,"duds hurt more than stars help"?

My instinctive sense is that at least up to a point, having duds doesn't hurt a law school, provided there's a critical mass of stars. And from a community perspective, many scholarly "duds" are gems: love commitees, great teahcers, nice people, good to have around, help provide the social glue holding together faculties.

If I am right, this has implications for tenure requirements, too: e.g., that provided all candidates for tenure have made serious, good faither efforts to meet expectations (they've written a lot, even if it's all dopey, etc), maybe a smart law school says, "there are huge costs to tenure denials in terms of collegiality and morale. let's just tenure Young Mr. Budding Dud, who's a nice fellow. It's better to have a him here and happy even if his scholarship is not so great than to have a miserable battle."

what do you think?

Posted by: Anon again | Sep 12, 2005 10:46:54 AM

(I'm chair, for what it's worth, of the tenure committee at my law school.) One of the things making possible higher quantitative tenure standards in law today is the fact that, increasingly, junior faculty enter law teaching with prior publications and established research agendas. If you have new faculty coming on with no prior teaching or writing experience (this used to be the norm in law), seems to me it's unreasonable to expect them to write in their first year -- learning to teach is hard enough -- and it's unreasonable to expect more than one major article per year from them afterwards. Remember, most new law teachers haven't written dissertations, and learning to write can be hard. If someone's coming up for tenure in her fifth year (which is to say, after completing four years), that means you can't reasonably expect to see more than three major articles. As it stands, the norm at my school seems to have slipped from coming-up-in-the-fifth-year to coming-up-in-the-sixth-year, to accommodate increasing tenure expectations. But I would be really distressed at the notion of firing somebody I expect to be a productive scholar, with three or four solid, major publications under her belt, just because that doesn't meet somebody's quantitative standards.

Posted by: J. | Sep 15, 2005 11:16:51 AM

J's post raises an important topic: tenure is increasingly based on a prediction about future performance rather than a reward for past performance. Thus, I think schools are becoming more interested in whether tenure candidates are likely to be good teachers, scholars, and citizens over the next couple of decades, rather than whether they have written three articles or thereabouts in the past five or six years.

This is good for candidates who are on an upward trajectory, because it looks less to how quickly they got out of the starting blocks and more towards what they are likely to accomplish. This is bad, however, for those who have met the minimum standards, but appear unlikely to be capable of (or interested in) significant productivity over the next several decades.

The tenure-as-prediction-about-the-future standard is part of the generally rising tenure standards, because schools still require some significant minimum level of productivity and then add yet another factor: a judgement about candidates' future performance.

For many years, major arts and sciences departments at major institutions have had similar standards. Now those standards are trickling down to the rest of us.

Posted by: Alfred Brophy | Sep 20, 2005 8:26:47 AM

A further thought: One important difference between law schools and arts and sciences faculties is that even the most prestigious law schools for the most part haven't adopted the approach, frequently seen on prestigious arts and sciences faculties, of denying tenure to good scholars because "we only grant tenure to *great* scholars," with the merely good ones expected to move laterally to jobs in less-prestigious schools. One can make the argument that Harvard's failure to adopt that approach across the board is bad for Harvard. (I understand Brian's 2003 post to make this argument.) On the other hand, it seems to me that it's good for legal academia as a whole. The only effect of the top schools' wholeheartedly adopting this approach, if it were successful, would be to further concentrate the most prestigious professors in the most prestigious schools, amplifying the stratification and hierarchy we already have among law schools. I can't imagine why increasing that stratification would be good for the larger community. (I wouldn't want the Yankees to have all of the best players, either.)

Posted by: J. | Sep 21, 2005 12:52:16 PM

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