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Wednesday, July 19, 2006

Courage, Prudence, and Tenure

At the Conglomerate, Lisa Fairfax has this very interesting post, with valuable comments, describing a discussion about whether young scholars should engage in empirical research.  The response of the panel mulling this question was cautious for a number of reasons, not the least of which was a set of concerns about whether such efforts would damage a young scholar's chances at tenure.  Larry Solum weighed in on his blog, responding, among other things, that "it's better to do scholarship that is likely to be understood and valued by those who will be voting on one's tenure."  And I am mindful too of the remarks of Randy Barnett at the AALS panel this year on blogging, who suggested that blogging might be unwise for untenured scholars.  All of these discussions have been gnawing at me, and inspire these somewhat loose thoughts on tenure advice in the legal academy.

Let me say at the outset that the advice offered by the SEALS panelists, Solum, and others is wise and is offered in good faith, and it doesn't necessarily say anything about how these folks would advise junior scholars in a perfect world.  Moreover, some of the advice in the empirical scholarship debate has less to do with winning the tenure "game" and more to do with doing work that is appropriate to your experience.  Larry's advice that junior scholars should begin by "exploiting their strengths, not starting over," is sound advice for any junior scholar regardless of tenure.  Finally, let me say that I agree that tenure is important to junior scholars, and advice on how to obtain it is always appreciated.  How could I not agree with that?  I like my job.

Still, there is an undercurrent behind all of this advice that troubles me.  That same current runs through the advice offered to Kenji Yoshino in his book Covering, that as a junior scholar he is better off being a homosexual professional, i.e. someone who's gay but doesn't write about gay issues, than a professional homosexual.  It's present in the countless anecdotes in which junior scholars of color were warned to mute their interest in race scholarship until they were safely ensconced in positions of tenure.  It is also present in advice regularly offered to junior scholars to think strategically about their scholarship, although this is more of a mixed picture; some of that advice is geared toward tenure, and some of it is just about how to put together a useful scholarly agenda.  Taken together, this advice doesn't just say, "Be a smart scholar"; it also, and maybe primarily, says, "Be smart about being a scholar."  It says, be careful, be prudent, or you may be sorry.

As I said above, it's all good advice, offered in good faith -- and it's advice that junior scholars are very eager to follow.  Maybe too eager.  Most of us junior scholars know that we are very privileged to have these wonderful jobs.  But the tail shouldn't wag the dog: we should care about these jobs because they enable us to do the work we are burning to do, and not treasure the jobs as an end in themselves.  It seems to me that at some point, too much emphasis on pre-tenure prudence encourages the latter tendency, not the former. 

What is the point of tenure, after all?  It's not job security as such; if that's all tenure is about, there would be a good case for abolishing it.  It's more specific than that.  The point of tenure is job security in service of academic freedom  -- security against being judged for one's teaching and scholarship except according to the standards of one's academic field, and against being judged by anyone other than qualified senior colleagues duly applying those standards.  Tenure is meant to enable us to pursue our goals as scholars and teachers fearlessly, provided we continue to meet the relevant standards.  It's certainly not, as I see it, supposed to be a reward.  It's not even a reward for strong pre-tenure work; someone who turns out three top-tier articles while explicitly vowing never to write another piece after tenure has little business applying for tenure, let alone receiving it.  The point of your early work, where tenure is concerned, is to demonstrate that you are going to continue to do good work that meets the standards of the field, and thus that you deserve some measure of continuing protection in doing so.

It seems to me, then, that there is some danger in overstressing the need for prudence among junior scholars, rather than the need for courage.  Junior scholars ought to be willing to follow their muses, to cross swords, to offend or dismay more senior colleagues (not that they should do so, but they should be willing to do so), to try out new paths in scholarship.  If they're not willing to do so before tenure, because they're thinking strategically about tenure, why assume they'll be willing to do so afterwards?  The lawyers I know -- especially those who come from the top schools, which supply most of the teaching profession in law -- are already fairly risk-averse, and I doubt that those habits of mind, once inculcated, will go away just because one is now supported by tenure. 

There is an interesting irony here.  As a sometime teacher of legal ethics, I point out to my students that even as junior lawyers, they are responsible for their work.  If they fail to represent a client according to the standards of the profession, or if they violate an ethical rule, they will pay the price, no matter how many senior attorneys directed them to act unprofessionally and no matter whether they were threatened with dismissal.  They are literally required to display at least that much courage.  And this rule applies equally to the top graduate of the top school and the bottom graduate of the lowest-ranked school.  If a graduate of Podunk Law School, whose job prospects may be seriously limited, can be asked to risk everything in service of his professional standards, surely we can demand at least as much courage from law professors, who really do have other professional options.

It seems to me, in short, that a junior scholar who does everything with thoughts of tenure in mind is precisely the kind of tenure about whom we should be concerned when it comes time to actually award tenure.  Vincent Blasi wrote powerfully some years ago about the ideal of "civic courage" in the First Amendment.  Junior scholars should be encouraged, similarly, to display at least as much "academic courage" as prudence.   

None of which is to say that the advice that's parceled out to junior scholars isn't good advice.  We don't live in the best of all possible worlds, we do often value tenure as an end and not just a means, and it is possible that tenure committees won't always be everything they should be.  There is room for prudence here.  Moreover, there are ways in which junior scholars should be prudent that are academically relevant, rather than just politically relevant.  They should be modest about what they don't know; in disagreeing with more established senior scholars, they should be humble about the gaps in their knowledge and experience; and, a point of special relevance to such questions as whether to pursue empirical work, they should be painstaking in seeking to meet professional standards.  But the goal of all of this should be to earn tenure, to be the kind of scholar who deserves that protection, and not merely to receive tenure by avoiding doing anything that might put it at risk.

This doesn't mean we junior scholars don't want and don't appreciate the very good advice we often receive.  It does mean that we should be trying to shape these discussions differently.  Although the real-world burden may often fall on the junior scholar, we should be aiming to shift that burden.  We should be encouraging junior scholars to take chances, provided they do so in a way that strives to meet the highest standards of the academy.  We should be asking, to paraphrase a comment of Jason Czarnezki at the Conglomerate discussion, how to support junior scholars' pursuit of scholarship in a useful, professional, and fearless fashion.  We should distinguish between the kinds of prudence in a junior scholar that are about becoming good scholars, and those kinds that are merely about staying out of trouble.  And if the point of much of the advice we get is that senior scholars sometimes apply improper standards for tenure ("Why is he writing about racial issues?"  "Why is he blogging?"  "What the hell is this empirical stuff?"), our primary focus should be on reforming that sector of the academy rather than placing the burden of prudence on the junior scholar.

I appreciate the advice I receive on tenure.  We all do.  I would like to be writing and teaching five, fifteen, and fifty years from now.  But in thinking about tenure and the junior scholar, we should be thinking as much about how to make this the best of all possible worlds as we do about how to survive in something less than the best of all possible worlds.  We should remember that tenure is a means and not an end, and junior and senior scholars alike should work together to ensure that we all pursue our scholarly muses with as much fearlessness as we can muster.  Junior scholars should strive to avoid error -- not failure.     

Posted by Paul Horwitz on July 19, 2006 at 12:30 PM in Life of Law Schools | Permalink


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Posted by: 1The Damned | Aug 2, 2006 2:03:21 PM

Good stuff. And don't get me wrong -- I'm all for courage. In my own case, I really wanted to do a university press book as a major part of my tenure portfolio -- because, well, That's What Historians Do. I got a couple of well-meaning cautions (What if the proposal isn't accepted? What if it's not done by the tenure decision date? What if some colleagues would prefer only law review articles, because that's what they're used to?). But I insisted on doing a book, and everything turned out fine.

People in this biz got into it at least in part, I hope, because they felt they had something to say, and they should try to say it. If we heed Paul's advice and have a good understanding of what it is that we do and don't know -- which may be a bigger problem in law schools than in other parts of academia, but that's another story -- we should definitely be courageous.

Posted by: Joseph Slater | Jul 20, 2006 2:41:36 PM

Thanks, Scott. I should add, per Joseph's comment, that I emphatically don't doubt the good faith of the folks whose tenure-related advice I mentioned. I also don't doubt that they both would and do try to make this the "best of all possible worlds" for purposes of tenure; while Larry has talked about the possibility that senior faculty might unfairly judge empirical work and Randy Barnett has cautioned junior professor bloggers, I don't doubt that both do everything they can to encourage fair-minded and intra vires tenure determinations. (I know Larry, a little, but not Randy.) In writing my little cri de coeur, I didn't want to single anyone out. I just wanted to make the point that while it's good to give tenure advice based on our imperfect world, and while it's doubly good and always relevant to give tenure advice based on relevant tenure criteria (i.e., be cautious about doing empirical work if you don't know what you're doing), there ought to be room to encourage a little courage on the part of junior scholars, while also working to ensure that junior faculty can follow their muses without worrying about what should be extraneous considerations. So, no, there's not that much room between me and Larry; I'd just like to see the tenor of tenure advice place a little added emphasis on courage rather than on political prudence.

Posted by: Paul Horwitz | Jul 20, 2006 1:15:37 PM

Paul -- Well put.

Posted by: Scott Moss | Jul 20, 2006 12:15:36 PM


Fair enough, but I guess I was wondering how much you and Larry Solum actually disagreed.


I agree that it's tricky for senior faculty to evaluate work by junior faculty that requires expertise that senior faculty don't have. But there are ways to deal with that. Least defensibly (to my mind), some senior faculty are likely to assume that "publishing in a highly-ranked law review" is a good proxy for quality, even in a specialized field beyond the range of most law review editors -- and that inability to publish in a highly-ranked law review makes the work suspect.

More defensibly (to my mind), is relying on the reputation of peer-reviewed journals (or university presses) for various kinds of inter-disciplinary work. To pick the subject I know best, even if no senior faculty person at a given school is a trained historian, it's not hard to figure out that publishing an article in the Journal of American History or a book by Cambridge University Press is impressive. Of course, how a faculty feels about work that is at least as much "history" as it is "law" is another matter.

Finally, faculty can rely on outside reviews from experts in the field. If three leading economists say X's work in law and econ makes good and sophisticated use of economic tools, that would go a long way to convincing me that X's scholarship was good.

Beyond that, I agree that there are closer cases, e.g., your example of scholarship that relies more on anecdotes and narratives than does traditional legal scholarship.

Posted by: Joseph Slater | Jul 20, 2006 10:07:52 AM

Joseph, you make a good distinction, but there may be instances in which that distinction won't work. First, dealing with empirical work specifically, law professors making the tenure decision must know what good training or good empirical work is, and I'm not sure that is true for a large number. Empirical work is viewed with suspicion by some precisely because they don't understand how to evaluate it, and yet understand that empirical work has a particularly strong claim to truth. And so I suspect that at least at some schools, the faculty lacks the expertise to judge whether someone has sufficient training, and may assume that person does not, unfairly. Or, some faculties, out of this misunderstanding, may simply view empirical work as not a valid method of analysis.

And that relates more broadly to a bigger issue about types of articles and analytical tools. Here I'll display areas of my confusion about labels, but there seem to be hierarchies everywhere, in subject matter, analytical device, and goal of the writing. Is the article normative or "only" descriptive, for example. Does it speak to a "scholarly" audience, or "merely" judges and lawyers. Does it use data or anecdotes and narrative to convey the point. It's true that some of these barriers are lower thanks to the critical legal/critical race studies and feminist scholars, but they still exist.

This sounds very discouraging, like there are minefields everywhere, but I think that it demonstrates the real strength and possibility for junior scholars. Much of the struggle about scholarship seems rooted in the central question of whether law is its own discipline within the university or instead the subject of professional training. It's an inevitable by-product of this identity crisis, which has pretty much existed since the creation of the modern law school model. And so, my hope is that we can take advantage of that by explaining how what we do (however we do it) defines our identities as law professors distinct from other disciplines and relates to the goal of the law as a project. As long as we can explain why we've made the choices that we have, in other words, we'll be more likely to be viewed as "serious" scholars.

Posted by: Marcia McCormick | Jul 19, 2006 10:59:32 PM

I agree -- hence the lines, buried somewhere near the beginning and the end, about doing work that's appropriate to your experience, and later about being sure to meet professional standards.

Posted by: Paul Horwitz | Jul 19, 2006 10:40:09 PM

Well, Solum also said: "Very junior scholars without a solid foundation in empirical research methods should be wary--to say the least. Junior scholars ought to be exploiting their strengths, not starting over."

That's consistent with your point that junior scholars "should be modest about what they don't know."

I absolutely believe that junior faculty should write in areas that interest and inspire them. On the other hand, I would probably discourage a junior faculty member from trying to do a major tenure piece on some aspect of legal history if that person had no significant background in history; same for a law & econ piece by someone with no significant econ background.

In other words, having a senior faculty member or two that's skeptical of empircal research as an area is one issue. Having a senior faculty member or two being skeptical that a particular junior faculty member is capable of good empirical research because he/she lacks the training in that area is something else.

Posted by: Joseph Slater | Jul 19, 2006 5:00:34 PM

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