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Wednesday, December 21, 2011

Law School Service

As every law prof knows, our professional lives are supposed to be made up of three components — scholarship, teaching, and service.  Like many junior profs, I’ve spent most of my time focusing on scholarship and teaching.  But some recent discussions I’ve had with some other law profs about how faculty ought to be dividing their time and what role service ought to play in our professional lives have led me to reexamine the role of service in the life of a law professor.

 Let me begin with a quick observation that much of what I will discuss does not, at least in my mind, apply to junior faculty who have not yet been granted tenure.  That is because I think (a) untenured folks are generally expected to do less service than the tenured faculty (e.g., not serve as chair of committees, not serve on university committees), and (b) scholarship and teaching seem to be the primary factors considered in the tenure review process (I’d be surprised to hear that a law professor was denied tenure based on insufficient service).

But once a faculty member has received tenure, it seems that expectations regarding the amount of service change.  Those expectations seem to change in at least two ways:  First, more service is expected internally at the law school law school and sometimes at the university level.  Second, whether service can (or ought to be) prioritized over scholarship and/or teaching is suddenly a question open for debate. 

 

At first glance, the idea of expecting more service from tenured faculty members seems uncontroversial.  One could easily presume that both scholarship and teaching become easier; that is to say, the longer one has been a professor, the less time it takes to prepare for class or write an article.  If the other two components of a professor’s responsibility are easier to fulfill, why not ask him or her to take on more service?

I am suspicious of this line of reasoning.  For one thing, although writing an article or teaching a class may be easier, I think that law schools already tend to consume any excess time that a law professor might generate by obtaining tenure.  In the scholarship arena, tenured faculty are often expected to make more contributions (e.g., write a new law review article while simultaneously writing symposia articles about prior articles), longer contributions (the constant suggestions that one “use” tenure to write a book), or contributions that are more difficult (e.g., now that you have tenure, your articles should engage bigger questions, shift the paradigm, etc.).  In the teaching arena, some schools have course relief that disappears upon tenure, and at other schools tenured faculty are more likely to be asked to prep a new course or pick up an extra section.

For another thing, the additional service burden is rarely distributed in an equitable fashion; some tenured faculty are asked to sit on a number of committees every year, while others aren’t.  Now, the reasons for that inequitable distribution could be obviously objectionable (e.g., some faculty flat out refuse to do their fair share of committee work), not all that objectionable (e.g., some faculty members have proven themselves more adept at committee work than others, such that more socially outgoing faculty members might be asked to serve on the appointments committee more often), or open to debate about whether they are objectionable (e.g., asking female or minority faculty members to serve on the appointments committee more often in order to highlight diversity at the law school, or not expecting as much service from faculty members who the most productive scholars).  To the extent that we think more service can be expected of faculty members by virtue of the fact that they have been in the academy longer, it seems to me that we either need to ensure that the additional service burden is fairly distributed or that the reasons for disparate distribution are both articulated and defensible.

Whatever my reservations about the conventional wisdom that we ought to expect more service from tenured faculty members, they are insignificant as compared to my concerns regarding the second question --- whether service can (or ought to be) prioritized over scholarship and/or teaching.  I’m sure it goes without saying that there are certain circumstances where service will necessarily take precedence over teaching and scholarship.  For example, if a faculty member is asked to serve as associate dean, I think most would agree that the faculty member ought to have a reduced teaching load and/or reduced scholarship expectations during the time that he or she serves as associate dean.  (Those reduced teaching and/or scholarship expectations presumably end at the same time that the associate deanship ends.)  But I think that there are harder cases regarding service, especially once we start talking about service that is external to the law school.

Consider, for example, the common practice of law professors who do pro bono litigation work.  Let’s say the average faculty member who engages in this sort of work writes two appellate briefs per year.  Now imagine that one faculty member does far more --- writing 10 appellate briefs per year.  How should that additional service be “counted” by the law school?  I use the word “counted” because many schools seem to expect a certain amount of teaching, scholarship, and service from each of their faculty members.  Those faculty members whose scholarship is significantly above average in terms of quantity or quality are sometimes excused from some portion of the ordinary teaching or service load.  And those faculty members who take on a greater teaching load (which could be a higher course load or volunteering to prepare a new course) are sometimes excused if their scholarship publications fall below the average rate for a tenured faculty member, as well as sometimes asked to do less service.  (Yes, I  know that thinking in terms of averages for teaching amount, scholarship amount, and scholarship quality is almost certain to be highly contested, but just bear with me that such an average can be (at least roughly) identified.  Or at least agree that law schools need to occasionally assess whether their tenured faculty members are being productive members of the law school.) 

In light of how exemplary scholarship and exemplary teaching can result in lower expectations for the other components of a law professor’s duties, and in light of the commonly accepted practice for reducing teaching and scholarship expectations for exemplary internal service (such as serving as associate dean), one might expect that exemplary external service --- such as taking on a significant amount of pro bono litigation work --- ought to result in reduced expectations for teaching and/or scholarship.  Yet, despite the logic of the forgoing argument, I suspect that many law professors would find the argument unconvincing.  Indeed, my own intuition suggests that exemplary external service ought not “count” in the same way as exemplary teaching or exemplary scholarship when assessing faculty productivity. 

While there are a few reasons I can identify that support this intuition, I’d be more interested to hear from thoughts from readers on this topic.  So, any thoughts on how to “count” external law school service?

Posted by Carissa Hessick on December 21, 2011 at 01:07 PM in Life of Law Schools | Permalink

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Interesting issue. I think I would step back and ask a larger question: When a professor spends time on law reform efforts outside of school, do those efforts count as "service" at all?

I'm not entirely sure, but my guess would be "no." I think of "service" as being service to the school itself, not service to the legal community as a whole. (As an aside, I'd be happy if I could just get someone to pay for the filing and printing fees when I do pro bono litigation work; actually getting some kind of "credit" for that work seems like a luxury.)

Posted by: Orin Kerr | Dec 21, 2011 1:38:31 PM

(Full disclosure: I have spent an hour or two today working on a pro bono amicus brief, but I have seen it solely as procrastination to avoid grading exams, not service.)

Posted by: Orin Kerr | Dec 21, 2011 1:42:46 PM

At least formally, we consider three levels of service--to the law school, to the university, and to the legal community (whatever that means). So we would give "credit" (whatever that means) for an amicus brief or law-reform efforts, etc.

A different question is how that all should get divvied up. Should law school service get priority? Should it be evenly divided, so you can't draw easier/fewer law school committee assignments because you are writing briefs or because you're serving on the Graduate Council? Or should we recognize that some faculty members take on the heavy law-school service responsibilities while others apply their service elsewhere?

Posted by: Howard Wasserman | Dec 21, 2011 2:42:26 PM

We've had some informal and non-binding discussion about this at FSU (and btw, CBH, it's a great post and should be the basis for a journal of legal educ essay) and unsurprisingly, some folks think credit for law reform efforts are worthy and countable and others think the absence of such efforts shouldn't be used as a sword during P/T discussions against people who are otherwise devoted to teaching and production of scholarship, or people who want to ensure that there's a minimum floor of commitment to teaching and production of scholarship. (I should hasten to add that we might and probably have some specified requirements or guidelines about this and those guidelines may be at variance with what I reported above).

Personally, I think law reform work counts under the service umbrella, but I'm not sure it should count anymore than whether someone runs a blog or organizes a conference or several every year...

I suppose if someone is taking on extraordinary efforts as a legal entrepreneur (think BLS's Susan Herman, who is pres of ACLU), then I'd guess that would be something of great value to the institution, but I'd think that if they were devoting their substantial time to the organization, they should actually be volunteering a pay cut (or at least not asking for raises) if they're not focused on the educational mission, and instead focused on advocacy efforts. But I could be persuaded otherwise.

I guess the q really boils down to: does exemplary law reform effort count for what? a basis for termination? no, but a basis for promotion or tenure or recognition in an unusual way? also, no. It counts, i guess, in insulating an otherwise decent teacher and scholar from knocks based on the suggestion that w/o that exemplary service, the person would be shirking.

Posted by: Dan Markel | Dec 21, 2011 3:26:22 PM

If external work counts toward satisfying our job duties, then it isn't pure pro bono (even if the client is not paying). It is not "work undertaken voluntarily, without payment" because the professor is paid by the law school for this time. Why should law schools--and ultimately their students--subsidize these actions? (And what if the "cause" being supported is one the faculty would be opposed to? Should that matter?)

Posted by: Brian Tamanaha | Dec 21, 2011 7:06:21 PM

Brian, that's hardly unprecedented. Plenty of law firms give associates credit towards their hours for pro bono work, for instance.

Posted by: Katie | Dec 22, 2011 9:26:22 AM

You are right, Katie, but this time is not billed to clients. (Presumably, it comes out of the partner share?) It is not clear to me that law schools can make the same claim if external activities count toward the satisfaction of work time because tuition pays for that time with no way to mark it off.

I'm probably in a minority on this, but since you raise the subject, the law firm version of "pro bono" service has always struck me as odd. Associates "volunteer" free legal services for which they are handsomely paid. It's a pragmatic arrangement that firms use to meet their pro bono commitment to the bar (and associates obtain genuine legal experience), and I'm fine with it because free services are delivered, but still....There is a "have your cake and eat it too" quality. Ultimately, unless the partners genuinely are giving up income to support this work, the other clients are paying for it one way or the other.

Law professors who do "pro bono" stuff on work time essentially create the same arrangement--"have cake and eat it too"--without any restraints on what they do. There is a clean way to treat external "pro bono" litigation work by law profs: do it on your own time. We can applaud that as a genuine commitment to public service.

Posted by: Brian Tamanaha | Dec 22, 2011 1:08:37 PM

Brian raises interesting questions. What counts as one's "own time" in this context? All of the schools at which I've taught have had rules limiting outside activity to roughly one day a week or a fifth of one's professional efforts (variously phrased). One could argue that these rules reflect an understanding that a fifth of my work time is, as Mr. Hand might say, "my time." I'm sure lots of faculty would demand higher salaries if the limits on outside activities were stricter -- particularly our colleagues in corporate fields, or those who do work with the plaintiffs' class action bar, but no doubt others as well. A faculty member who foregoes high-priced consulting in favor of pro bono work during the time allotted for outside activities can readily be understood as showing "a genuine commitment to public service." That's not necessarily the same question as the one that started this thread, which is whether outside work should "count" in a school's assessment of a faculty member. Surely it should to some extent -- outside work such as pro bono litigation can enhance teaching and scholarship, help students make connections to employers, and generally strengthen a law school's ties with the practicing bar. But I don't think it can excuse a faculty member's failing to pull his or her weight in teaching or scholarship over a sustained period of time.

Posted by: Sam Bagenstos | Dec 22, 2011 5:21:54 PM

I guess I think that, for both law firms and law schools, there's value in the institution supporting pro bono work as well as simply in individuals doing so. And donating some of your employees' time, essentially, is a way for that to happen.

There's also the issue that one of the more common complaints about law professors is that many of them don't have much experience practicing law. Surely involvement in pro bono cases mitigates that and thus adds value to the students?

Posted by: Katie | Dec 22, 2011 8:18:04 PM

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