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Tuesday, April 30, 2013

ABA Committee Discusses Tenure Requirements and Law School Accreditation

An interesting article here. The gist: the ABA law school accreditation committee is looking at several alternatives to the current requirement that all ABA-accredited schools have a system of tenure or comparable security for full-time faculty.

I fail to see the point of the third alternative the committee is considering, which basically strikes me as a rent-seeking move by clinical faculty. But the second alternative seems like a reasonable move to me: "[T]o move away from any tenure requirement. Schools would afford all full-time faculty some form of security of position, but each would decide what system that would be. (The interpretation of the standard stipulates that schools at minimum must have a system of long-term renewable contracts of at least five years.) Schools could adopt different rules for different types of faculty."

Of course, the even shorter gist is probably accurately contained in the only comment currently posted on the NLJ story: "If you're betting on this question, bet on the ABA committee to avoid anything controversial. Really, bar association junkies, how often does any such committee do anything bold?"

Posted by Paul Horwitz on April 30, 2013 at 03:29 PM in Paul Horwitz | Permalink


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Failed: I totally agree with you that academia forecloses other options for VAPs, and I am also under no illusion that once I am in my academic job for a number of years will I be able move back in to a biglaw job. In fact, I see that opportunity as completely forclosed by going in to academia.

It is precisely *because* of this fact that getting rid of tenure makes the choice of academia vs. big firm even more difficult. Maybe I am overgeneralizing from my own experience and those I know, but I decided very early in my career that I wanted to do academia, and chose going in that direction over biglaw options. It wasn't something I chose after I thought that I would "push[ed] out after 1-3 years".

One of the things that made the academic job attractive was the idea that I could possibly get tenure (among other positives). If it didn't come with the same job security, would I have thought much harder about the better pay and increased options that biglaw gives me? Absolutely. Yes, it is possible that I could have been forced out in 1-3 years as you mention, but with a lack of tenure, academia moves in that direction as well. I suspect that many top tier candidates in their first few years will rededicate themselves to their jobs instead of choosing VAPs / fellowships / writing in their spare time / etc. that they are doing now to prepare for an academic option.

My point was that tenure is one of the big incentives that academia can offer. Without it, you will either have to make up compensation in some other way, or you will get different candidates for the job. Either of these could be good or bad, but it doesn't seem to be right that you could remove one of the big perks and get the same candidates.

Posted by: anonandoff | May 4, 2013 12:52:55 PM

AnonProf44, I don't disagree: http://www.volokh.com/2010/07/27/tenure-and-faculty-self-selection/
At the same time, I'm not arguing that we should "get rid of tenure"; I'm just suggesting that the academic freedom rationale is not particularly strong.

Posted by: Orin Kerr | May 2, 2013 12:38:28 PM

I'm probably missing something, but if that's the reason, why not just have a mandatory curve? And didn't it have something to do with Stanford firing a guy?

Posted by: Paul Horwitz | May 1, 2013 9:17:33 PM

The reason for tenure is honest grading. Without job security, no one will give dumb or lazy kids the grades they deserve.

Posted by: anon | May 1, 2013 9:06:45 PM

"However, over time, it could change at least the types of candidates that are applying for academic jobs since at least the current candidates for academic positions, when they are first considering academic positions, have many other options given their qualifications."

I'm not sure this is right. First, read the VAP Trap threads at The Faculty Lounge. Many VAPs who didn't find an academic job are, in fact, struggling to find post-VAP work. But even looking at people still in practice, I suspect for most, the other "options" are going to be: (1) For most, stay at the firm until they push you out in 1-3 years; (2) for luckier ones, stay in the government position and just "accept" that you'll spend the rest of your life in the bottom rungs of the upper middle class (not that this is a bad thing).

Anyway, the point is that this blanket assumption on the part of many law professors that they could just waltz into the sort of high-paying job that they left to go into academia is probably inaccurate, and it's definitely distasteful. Very few big law firms hire senior attorneys with no business, regardless of how smart they are or how many pretty baubles they have on their resume.

Note: I'm one of those attorneys with a bauble-laden resume who was forced to go back into private practice after striking out on the teaching job market. I was a bit luckier than most because I had more substantive practice experience (roughly a decade), and more importantly, a lot of contacts who I could hit up for a job. One of them resulted in a pretty good gig. It will almost be as if the whole government and then wannabe academic detour never happened. But it was hard. Several friends at firms told me that it doesn't matter where I went to law school or clerked, or how prestigious my first firm was, or how many articles I published in top tier law reviews, or even how many cases I worked on as lead counsel. Once you get past about five years (maybe six or even seven if it's in a practice group with a lot of need), if you don't have a book of business, you won't be considered.

Posted by: Failed academic wannabe | May 1, 2013 8:09:36 PM

Presumably, tenure is also rationally considered as a potential benefit by anyone choosing to go in to academia. If you took away the possibility of tenure, making it more like (but obviously not the same as) "any other job", might you lose some people who would be interested in academia that would no longer be? At least, if you wanted to attract the same quality* of candidates, you would have to replace tenure with some other form of remuneration - perhaps higher salaries? (Personally, I know that if tenure wasn't offered as a possibility, I would look much more seriously at my options at firms, which tend to pay much better, but are currently less stable positions).

*Yes, given the current state of the market, you may still have lots of well qualified people applying for academic jobs. However, over time, it could change at least the types of candidates that are applying for academic jobs since at least the current candidates for academic positions, when they are first considering academic positions, have many other options given their qualifications.

Posted by: anonandoff | May 1, 2013 7:01:55 PM


Let's assume you are right. But either under current conditions, or under the improved hiring conditions you would like to see, I do not see how getting rid of tenure would help. I also know of many excellent scholars who went into new and rich fields after tenure--to mention two more or less at random, Eric Muller and Hiroshi Motomura. So even in the context of our perhaps unduly conventional hiring practices, tenure can have positive effects on the production of high quality scholarship.

Tenure does another important thing: It allows existing faculty to support new faculty who are "better." If I knew I was going to compete for my job with any bright young thing I brought back from the AALS hiring meeting, I might be tempted to protect myself by hiring mediocrities.

Posted by: AnonProf44 | May 1, 2013 4:55:37 PM

AnonProf44: I agree with the goal, but I think our current system of hiring and retaining faculty tends to favor safe and predictable candidates who don't have much controversial to say. As between a predictable candidate who says the expected things in the expected way and an edgy candidate who takes risks and has unusual opinions, the former will likely get hired. As a result, celebrating how tenure protects the academic freedom of the existing group of law proferssors is likely celebrating how the First Amendment lets Pat Boone sing any song he wants.

Posted by: Orin Kerr | May 1, 2013 11:16:23 AM

I think the goal is producing more useful ideas and that requires testing ideas that may be controversial but also being allowed the time to pursue ideas that do not work. I think methodological and ideological diversity increases the chances of producing useful ideas but I am not persuaded that that requires diversity within the institution as opposed to across institututions (see Tushnet). Certainly some minimal level of intrainstitutional methodological/ideological diversity is required but do we have to mimic the full spectrum in any one school? We have two left of center corporate law faculty at SCU. Apparently that is unusual. Should a third hire (not that we are hiring in this area) be a traditional law and Econ scholar (a position I have tended to advocate) or a third left of center scholar who does thick description on conflict minerals and corporate behavior in developing countries?

In any case how does tenure preclude this approach to diversity?

Where I have far less sympathy is for arguments about tenure and productivity. Even Tamanah admits Deans have lots of tools they canise to deal with low productivity. They just have to be willing to use them.

Posted by: Steve Diamond | Apr 30, 2013 8:49:51 PM

"I fail to see the point of the third alternative the committee is considering, which basically strikes me as a rent-seeking move by clinical faculty."

Law professors complaining about rent-seeking (especially in the context of the ABA) is always so very rich.

Posted by: salacious | Apr 30, 2013 7:13:03 PM

Orin and MM,

Why can't our goal be to hire the best faculty we can, and then to assure that, should the study, reason and reflection of scholars take them to a controversial conclusion, they will free to say so in print? That is, the point is not to generate controversy per se, but to encourage the honest conclusions of scholars, even if controversial.

Posted by: AnonProf44 | Apr 30, 2013 6:36:23 PM

Once again Kerr nails it. If we're concerned about protecting professors who hold controversial points, let's hire more diverse faculty (and I'm not talking about race/gender here).

Posted by: MM | Apr 30, 2013 6:29:21 PM

Steve, I think the problem with viewing tenure as the only protector of academic freedom is that tenured law professors seem to only rarely take controversial positions in their scholarship that would trigger the need for the protections tenure can provide. Of course, tenure does play a role in protecting academic freedom. But if our goal is to have more professors taking more controversial scholarly positions in the name of academic freedom, I would think we need to be open to changes in the ways that professors are hired and retained.

Posted by: Orin Kerr | Apr 30, 2013 6:16:23 PM

"in practice, at least in the law schools, tenure serves . . . an even larger, if inadvertent, role in protecting those who take no position at all on anything, and occasionally have to be monitored for signs of a pulse."

Agreed. The solution is to do something directly about those without a pulse, rather than using the slackers on a faculty as an excuse to do away with tenure. In addition to protecting academic freedom, tenure protects faculty against deans who view as "disloyal" anyone who disagrees with him/her on an issue.

Posted by: BWH | Apr 30, 2013 6:08:54 PM

Of course I appreciate the concern. I am also concerned, on the other hand, that in practice, at least in the law schools, tenure serves a small but important role in protecting those who take controversial positions but an even larger, if inadvertent, role in protecting those who take no position at all on anything, and occasionally have to be monitored for signs of a pulse. In any event, I don't mean to emphasize points of disagreement over possible areas of agreement; I agree that academic freedom is meaningful and important, and I assume you agree that it tenure is supposed to be about academic freedom rather than job security as such.

Posted by: Paul Horwitz | Apr 30, 2013 5:12:41 PM

So for five years I don't have to worry I might be fired for taking controversial positions? In any case, my (rhetorical) question was not really aimed at you per se but it is disturbing that tenure is even on the table. It smacks of opportunistic exploitation of the macroeconomic crisis for a pre-existing political agenda (See: Cato Institute).

Posted by: Steve Diamond | Apr 30, 2013 4:49:51 PM

I am not assuming that all faculty positions raise equal concerns about academic freedom. And I am assuming that the most relevant aspect of academic freedom is non-dismissal for activities related to the content of one's scholarship, teaching, or service activities. I would be open to a strong set of contractual protections for that purpose alone, on a renewable basis, without locking in place a system that, although only intended to provide what I've just described, in practice often amounts to a much stronger presumption against dismissal altogether for all but extreme reasons. Finally, I have thought about this for all of ten minutes. I'm happy in principle to give schools room to experiment with other approaches--and, indeed, to experiment with largely non-scholarly faculty--and even happier to think that there might be diversity of approaches among law schools in this and other areas. Perhaps we can meet in the middle, though, and retain tenure while using the ABA accreditation process to encourage mandatory and meaningful periodic post-tenure reviews at all law schools.

Posted by: Paul Horwitz | Apr 30, 2013 4:18:14 PM

Please explain to me how one protects academic freedom without tenure?

Posted by: Steve Diamond | Apr 30, 2013 3:51:12 PM

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