Tuesday, May 15, 2007

Why is it so easy to get tenure in law schools?

With all the blogospheric chit-chat about tenure, I thought I'd post, once again, a link to this old discussion of mine (prompted by a question from a philosopher) about why it is so easy to get tenure in law schools.

I'd be curious to hear what other law faculty think.  Post only once; comments may take some time to appear.  As usual, non-anonymous comments stand a far better chance of being approved.


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I agree with much of your old post, Brian, but I wonder if the size of law faculties might have something to do with the difference. Law school faculties tend to be quite large. They might run from 20 or 30 on the small side to 70 or 80 people on the large side. As a faculty gets larger, the amount of time and interest that any one professor has to spend on any one colleague tends to drop. If you're lazy -- and let's face it, most of us are lazy -- you don't want to be bothered with the details of what random people you barely know have done with their time. Much easier to just give them tenure. That's one theory, anyway.

Posted by: AnonLawProf | May 15, 2007 9:29:36 PM

Brian: I think the points in your 2004 post are valid, but they focus largely on JD/PhDs. Most law profs don't have PhDs, and I think that fact is important in explaining why tenure standards are looser in law schools. A beginning professor in a liberal arts discipline already has the PhD, which means that he or she has already learned how to formulate and execute a large-scale scholarly project. While a graduate student, the PhD candidate has most likely also acquired teaching experience as a TA. The newly-minted PhD therefore goes to an entry level job at a more advanced stage of academic life than the newly-minted law professor straight out of practice or clerkship. The latter has to devote a lot of effort to learning the craft of teaching, in front of a highly critical and demanding audience - an audience that is older and in some ways more serious than undergraduates, and going heavily into debt to pay its own tuition. In my admittedly-limited observation, most entry level law profs work harder on their teaching than many entry-level profs in other disciplines. The beginning law prof simultaneously has to learn the basic scholarly skills that the PhD already has: the art of formulating projects and questions, and the painful process (as Bruce Ackerman once put it) of spending evenings watching your own best ideas fall apart as you try to execute the project. Because of the different career phases of the entry-level profs in the disciplines, law schools expect less research productivity than other departments come tenure time: candidates in other departments had a scholarly head start. To be sure, that means law schools are taking more of a gamble, because they're often granting tenure on less evidence. At the same time, the downside risk is less, because at a law school there are more possibilities of a useful professional life, apart from teaching, even for profs who don't turn out to be actively productive scholars: there are so many possibilities for public service projects, pro bono, CLE, manual-writing, bar activities, and the like. These enable a tenured professor who can't function on all cylinders as a researcher to nevertheless stay legally and intellectually alive outside the classroom, and bring that into the classroom. So I think the lower-standard tenure system in law is both understandable and more-or-less functional. - Now, perhaps it follows that JD/PhDs ought to be held to a higher tenure standard of scholarly output and productivity than their JD colleagues. But that is not a workable system.

Posted by: David Luban | May 16, 2007 7:37:51 PM

Not sure I'm adding anything, but for diagnosis I'd focus on the junior colleague whose publication record might seem to warrant tenure denial. This person was trained in tenacity, adversarial awareness, and a fetish for procedure and precedent. Given their tradition of expecting very little in exchange for continuing employment, law faculties will find it hard to ratchet up their standards on juniors disinclined to take bad outcomes lying down. I imagine there'll be change down the road.

Posted by: Anita Bernstein | May 18, 2007 1:13:46 PM

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