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Thursday, April 07, 2016

Going Meta on the Jr. Law Prawfs FAQ Series

I'll be back on Friday with my next FAQ (on the mysterious rise and perplexing value of online law reviews), but I thought I'd share the provocative response my colleague Deborah Merritt posted about this Jr. Law Prawfs FAQ Series over at the Law School Cafe. The full post is here, but here are seven points that she thinks are essential to reshape our scholarly sphere:

(1)  Give back some of the time we now devote to scholarship. We could use that resource to reduce tuition, expand experiential education, offer more feedback to students, or equalize faculty status (see point #7 below). I strongly support excellent scholarship, but know that we can preserve quality (if not quantity) with fewer resources. The scholars of the 1950’s, 60’s, 70’s, and 80’s did it; so can we.

(2) Reduce the number of scholarly presentations that require travel.Workshops and conferences are terrific ways to promote scholarly exchange, but we have more than is prudent. These sessions are expensive for schools to host, and frequent faculty travel disrupts class schedules. And let’s not forget the major effect that air travel has on global warming. We could cut scholarly travel modestly, replacing some of it with online interactions. We could prune, moreover, in a way that preserves junior and diverse voices.

(3) Encourage both shorter and online forms of scholarship. A short published response to a theoretical piece can promote significant intellectual advancement. Put that essay online and it may stimulate even more discussion. Create an online conference and it will foster both synchronous and asynchronous commentary. These scholarly modes have already emerged but, as Chris’s discussion suggests, junior scholars are unsure of their value. Faculty leaders should make clear that these new scholarly venues make significant contributions.

(4) Balance our scholarly modes. Although I like new forms of scholarship, the traditional law review article and academic book still serve key roles. There are times when a scholar needs to develop an idea fully in an article or book. As faculty leaders, we should promote newer types of scholarship in combination with more traditional outlets. Most scholars will do some of each over an academic career; others will gravitate to a particular mode. We can find balance both individually and as a faculty.

(5) Promote scholarship that helps practitioners and clients. These groups draw value from many types of scholarship. I have discussed my federalism theories with legislators, government lawyers, and judges. Community members have responded enthusiastically to essays critiquing the legal system. We shouldn’t assume that practicing lawyers and their clients are too plebian to appreciate theory. But at the same time, we should not denounce other types of scholarship as too “descriptive” or “doctrinal.” It’s hard to describe legal principles clearly, and legal doctrines are complex. As a result, practitioners and clients benefit from ongoing insights about legal developments. Faculty already recognize the complexity of legal doctrine in their teaching; that same complexity justifies thoughtful, well organized scholarship that guides practitioners and clients through legal thickets.

(6) Value teaching materials as scholarship. Like my plug for professionally relevant scholarship, this point is both old and new. Hart and Wechsler’s revolutionary casebook on The Federal Courts and the Federal System profoundly affected both scholarship and teaching when it first appeared; it undoubtedly continues to do so under its contemporary authors. Creating thoughtful materials for students has always provoked scholarly reflection. Today, as brain science deepens our understanding of pedagogy, there is even more scope for teaching materials that incorporate and further scholarship.

(7) Abolish our faculty caste system. Today’s legal scholarship rests on an uneasy–and deeply unfair–caste system. Tenured professors at many law schools enjoy job security, high pay, light course loads, and extensive research support (summer grants, travel funds, research assistants, computers). These professors rarely teach the time-intensive courses that students, employers, and regulators recognize are essential to professional education. Instead, we rely upon a cadre of professors who are much lower paid, lack full job security, and enjoy little research support to teach those courses. Many of those professors want to do research; indeed, many have produced scholarship without the summer grants or lightened teaching loads that tenured faculty claim are indispensable.



Posted by Chris Walker on April 7, 2016 at 09:03 AM in Jr. Law Prawfs FAQ, Teaching Law | Permalink


I strongly second points ## 3 and 4, which is what I have tried to do in my own writing since my pre-tenure days (online scholarship was just beginning) and what I have tried to encourage my less-senior colleagues to do.

Posted by: Howard Wasserman | Apr 7, 2016 9:32:48 AM

With regard to #7: I wonder why the assumption is that everyone has to receive more rather than less job security. The traditional argument for tenure is to protect academic freedom. This argument has less force when applied to individuals who are not expected to produce scholarship, which presumably explains why they are often not on a tenure track. Yet, the failure to tenure everyone, as this post illustrates, is often reflexively called a "caste" system (usually by people who have never lived under a real caste system). If the objection is to the distinction between those with tenure and others, however, there is more than one way to eliminate it. There is, in fact, very little threat to academic freedom in the academy (expect perhaps for the fear of retaliation that untenured conservatives often experience that tenured liberals will view their work with particular skepticism), and little historical evidence that when academics are under attack for unpopular views, tenure protects them. Moreover, a simple prohibition on ideological discrimination (not unlike the protection that the First Amendment provides to public employees) would likely be nearly as effective as tenure in protecting academic with unpopular views. While I will concede that tenure is not entirely without value as a means to protect academic freedom, the costs of tenure, in contrast, are high. Tenured academics are largely left unaccountable for their performance, including their failures with respect to Professor Merritt's goals 1-6. Expanding tenure would mean that even the currently untenured faculty members who teach "the time-intensive courses that students, employers, and regulators recognize are essential to professional education" would be effectively unaccountable for the performance. That does not strike me as an optimal result, especially from the standpoint of students. So if we are to eliminate our "caste" system, why not eliminate tenure for everyone? It would surely make it much easier to hold academics accountable for their defaults with respect to points 1-6, no?

Larry Rosenthal
Chapman University
Fowler School of Law

Posted by: Larry Rosenthal | Apr 7, 2016 11:34:50 AM

Larry, that's actually not my assumption. I have written several times about the reasons to equalize status among full-time teaching faculty, but have suggested that this equal status need not include tenure. I believe that tenure is the "premium plan" for protecting academic freedom, but it comes with costs that are important to acknowledge. A reasonable law school might choose to protect academic freedom in other, less costly ways. I don't want to aggravate the spam filter with a link, but see, e.g., my Law School Café post on "Tenure" dated May 15, 2013.

But whatever job-security plan a school chooses, it should apply equally to all full-time faculty. Some of the greatest threats to academic freedom have come from legislators and donors attacking clinicians--whose choice of clients and mission is part of their academic freedom. And I hear frequently from non-TT faculty that they are reticent to voice their views on curriculum, admissions standards, and other governance issues when those views differ from ones held by TT faculty.

The latter issues are as much a part of academic freedom as the points we make in our articles. I think it's key that faculty--rather than legislators, donors, or senior administrators--retain power to structure the curriculum and shape the student body. But that should be a united faculty, not a fractured one.

Posted by: Deborah Merritt | Apr 7, 2016 12:38:27 PM


I am glad we agree that an evenhanded policy is more important than a guaranteed tenure-track job for all. I think we part company when it comes to your arguments in defense of broadening tenure (though, to be clear, I cannot defend it in its current form either). As for clinicians, tenure is an awfully inefficient way to protect their freedom to undertake litigation that may prove unpopular in some quarters. A simple prohibition against managerial interference with litigation would be a far more direct way of protecting clinicians' litigating choices than granting them the much broader provisions of tenure, with its attendant costs. As for the fact that you "hear frequently from non-TT faculty that they are reticent to voice their views on curriculum, admissions standards, and other governance issues when those views differ from ones held by TT faculty," what would a social scientist say about this kind of evidence? After all, it comes from individuals who have a financial interest in obtaining tenure, and thereby avoiding accountability for their own teaching? In any other context, I suspect you would be more skeptical of a self-serving, non-falsifiable claim made by an individual laboring under a conflict of interest.

I have great sympathy with the critics of the efficacy of legal education as it is generally practiced in the academy, such as you. That is why I am all the more distressed by the failure of those critics -- at least the ones in the academy who enjoy all the benefits of tenure -- to recognize how central tenure has become to the problems in legal education. It should come as little surprise that we encounter disfunction in institutions that fail to hold faculty accountable for their performance.


Posted by: Larry Rosenthal | Apr 7, 2016 1:26:22 PM

Larry, I'm glad that you share my concern about the lack of evenhandedness in our current system. Do you agree that all full-time law professors should have the same level of job security? The prohibition against managerial interference with litigation (or other types of clinical work) could be applied to scholarship. I.e., there could be a prohibition against interference with a professor's scholarly focus. In both cases, there is the problem of hidden retaliation: If a school terminates a professor, claiming that the professor is a poor teacher, how do we know that's the real reason? The dean might be retaliating for the professor's representation of particular clients or publication of particular ideas. Tenure offers a high (although clearly not insurmountable) level of protection against that type of retaliation, but there are other forms as well.

I'm not suggesting this to provoke you: My previous posts at Law School Café (as well as a letter I submitted to the ABA when this issue was being debated) make clear that I support equal status for faculty--NOT guaranteed tenure for all.

I think I underscored my commitment to equality in a part of my current post that Chris didn't repost (quite understandably, given my verbosity). I acknowledged that, in order to make salaries more equal among full-time teaching faculty, people like me would have to earn less. We can't just keep expanding budgets.

But I have yet to see a strong argument for distinguishing so markedly among faculty based on the subjects they teach. The argument that the "market" requires us to pay faculty more for some positions than others is one that I have never seen tested in any serious way. We have proof that terrific legal writing and clinical faculty are available for less than $100,000 per year. But do we really know that the market requires the much higher salaries paid to TT faculty? It's a pretty strong buyer's market out there.

As for the reticence of non-TT faculty, I probably could find some social science research stating that differences in job security affect the comfort that workers have in debating issues about their workplace. I'm more puzzled, actually, about the degree to which we keep doing things in academia because they seem self evidently correct, without considering any supporting evidence. That's not true of you, but it seems to be a prevalent response among legal academics. I suspect that many people are currently shaking their heads at me because there are "obvious" reasons why we treat clinical and legal writing faculty so differently from those who teach other subjects.

Good to talk with you!

Posted by: Deborah Merritt | Apr 7, 2016 2:24:42 PM


Good talking with you as well!

Just in case I have been unclear on this point, my view is that, in light of its costs, tenure cannot be justified for anyone. That said, I am happy to add that the fact that people like me should not receive tenure is hardly an argument, IMHO, for expanding tenure, and thereby increasing the costs that it imposes on students. And I remain distressed that the advocates of reform (at least the ones that either currently enjoy or aspire to tenure protections), so rarely comment on its self-evident costs in terms of holding law faculties accountable for what they do. I suppose that the failure of law faculty to appreciate the costs of tenure is yet more evidence that Upton Sinclair was right.


Posted by: Larry Rosenthal | Apr 7, 2016 3:40:57 PM

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