Academic

When It Comes To Law Faculty, We?re All Post-Modernists (Or, My Tenure Is For Sale: Part III)

By Kim Krawiec

A few days ago, I argued that, even assuming that the costs of the tenure system outweighed any benefits, law schools would derive few benefits from abolishing tenure. Most schools show little willingness to implement less extreme measures designed to shame, intimidate, or otherwise induce faculty to perform consistently with valued institutional goals, so why should we expect them to take the even more drastic measure of firing someone they?ve worked with for many years, even when legally entitled to do so?  Isn?t it more realistic, I argue, to ask law schools to take the intermediate steps of (1) defining coherent institutional goals, and (2) coming to some consensus on when faculty are meeting those goals?  I believe that the first of these tasks is much harder than the second, because it requires a disparate (and, sometimes, disagreeable) group to come to some concurrence about who we are and what we value as a unit.  

This task may be even more difficult at law schools than within other academic departments for a variety reasons (although, maybe not. If you want to feel good about the functionality of your own department, read this hilarious thread at Historiann on nightmare interviews ? the comments are priceless).  But the traditional lack of peer-reviewed publishing by law faculty (which is increasingly changing), the high rate of tenure at law schools, the fact that we are a professional school, and a variety of other factors may mean that law schools face special difficulty in defining and meeting institutional goals.  Brian Leiter best summarizes some of these challenges in this now-dated but, I think, largely still-accurate description.

Let me briefly run through the typical objections to the suggestion that law schools should do more to tailor incentives to institutional goals and illustrate why they are off-base.

(1)   (1)  ?But the quality of what we do is subjective.?  Yes.  But it?s not supposed to be standardless.  Every law school I know endeavors at both the hiring and tenure stage to make some assessment of a candidate?s scholarship and teaching quality.  The rigor and methods by which this are done vary significantly across institutions (with estimating the quality of even a seasoned scholar and teacher solely on the basis of a one-hour job talk of a paper no one has read constituting one end of the spectrum), but I haven?t seen any schools openly abandon that mission because it?s too hard or subjective.  It makes no sense to raise this objection only with respect to our existing ranks.

(2)   (2)  ?You?ll just wind up counting [insert: articles, downloads, student numbers, here].?  Sometimes this is not such a bad idea.  Most of us have intuitions or biases about how hard or how well others are or are not working based on pretty sketchy information, often formed after initial impressions, that turn out to be off-base over the long term.  Updating them with new information is not an entirely bad idea.  Having said that, there is always a danger of ?managing the numbers,? especially if we convince ourselves that quality is not discernable, or if we?re simply too lazy to make more detailed and time consuming assessments.  But I think that at a well-run school, there will be sufficient pushback (especially from those with more time-intensive fields or projects ? i.e. a big book project, archival legal history, experimental work, or the compilation of original data sets that may take years to complete) to prevent the simple counting tendency from completely taking hold.

(3)   (3)  ?But we don?t have good means of assessing these qualities.?  No, we don?t.  And we need to work on that.  As noted, the traditional lack of peer reviewed publishing (which I don?t mean to romanticize either ? it has its own problems) means that law schools may need to work harder to come up with other mechanisms of scholarly quality assessment.  And as to teaching, I suspect that many of our B-school colleagues would gladly rant at length about the consumer-driven culture there that has turned teaching assessment into a popularity contest based on teaching evaluations that often reflect likability, rather than teaching skill.  (More on this in my next, and last, post in this series).  But the right answer can?t be to simply give up.

(4)   (4)  ?Such assessments would disadvantage women and minorities.? In the wrong hands, yes they could.  Much has been made in the blogosphere lately of the underrepresentation of women in various measures of impact, including downloads and citations.  And hats off to Ann Bartow, Bridget Crawford and the other Feminist Law Professors for their on-going ?Where Are The Women?? series. Moreover, it has been argued that women and minorities may bear a disproportionate service burden, which is unlikely to be rewarded to the same degree as the other parts of the academic ?trilogy? (i.e. scholarship and teaching). Again, however, I don?t think that the answer is simply to throw up our hands in defeat, but to work at creating better mechanisms for evaluating each other.  Moreover, I?m probably biased on this point, but I think that some systematic evaluation may reveal women and minorities to be more, rather than less, productive than our institutions assume, if only because so many of us may be working in fields that are relatively unfamiliar to relevant decision-makers at the school.

In my last post in this installment, ?We All Contribute In Our Own Ways? Is Not A Valid Institutional Goal, I?ll add some final ruminations on law schools as institutions with cultures, incentive structures, and habits that are amenable to manipulation in furtherance of a coherent academic agenda.

Full post as published by The Faculty Lounge on June 24, 2009 (boomark / email).