A Meta-Post on Tenure

When posts disappear, people notice and wonder why. We had a post up the other day with some sound advice on getting tenure in the legal academy. This is a group blog, and not all decisions are made collectively, so I was personally surprised when it disappeared. My general understanding is that the reasons for taking it down were specific to the institution of the writer, which I can understand. It was not taken down because it raised sensitive issues in general, or because some people felt it revealed some kind of dangerous truth about law teaching. But I also understand the issues some readers had with it. This is, after all, a pretty sweet job, and certainly a much sweeter one than having no legal job at all. But it obviously ought to be possible to talk candidly about getting tenure, and give realistic advice about it, without being (or being accused of being) insensitive. So let me take another, somewhat repetitive, crack at it, because I'd feel bad if there were no record at all of our having weighed in on it, or if it were assumed that we were backing off of the issue generally. Also, it gives me a chance to add some of my own thoughts on getting tenure, and on the meta-issue of whether it is somehow improper to write about this subject at all.

To summarize the previous post, some of the following advice was given: 1) Don't get to your scholarship too late in the tenure clock. 2) Don't co-author too much pre-tenure. 3) Be sufficiently social with your colleagues locally and in your field. 4) For tenure purposes, be aware that tenure will depend mostly on scholarship, not teaching or service. There are thus dangers in "overinvesting" in teaching before tenure. The author made quite clear that he personally "over"-invested in teaching and was happy that he did so, and that his advice was meant to be realistic, not approving. This wsa the point that arounsed the most negative responses elsewhere. 5) Make sure your projects, including books, are compatible with your tenure clock. 

My thoughts follow after the jump.

The first thing I'd say is that most of this advice strikes me as sound given the current set of norms. Like others--like most of us in law teaching, I suspect--I worry about many of those norms. But given general norms in the legal academy, the advice seems reasonable.

I would still say, and have said here before, that for the most part, as the post noted, tenure is not a huge concern in American law schools, either in absolute terms or in comparison to other sectors of the academy. Getting a law teaching job is much tougher than getting tenure itself. And, I think, some tenure denials in the law schools end up being easy cases in which, by the time the tenure decision comes around, it's evident to everyone that the individual just can't get things written, or is generally ill-suited for the job, or what have you. There are definitely exceptions; there are cases of people who clearly would merit tenure at some or most law schools and yet still didn't get it, for local institutional reasons. I don't mean to ignore such cases or be insensitive to those individuals. But they do not represent the common run of cases. And my anecdotal sense is that fewer institutions these days end up making highly contentious and politicized tenure grants or denials than they did at the height of the factionalization of the legal academy.

I think this matters. Of course, even those who seem to be doing all the right things, at an institution that appreciates them, may feel insecure about tenure and may welcome sound advice about how to get it. But just as we have to be realistic about the present norms surrounding tenure, so we have to be realistic about the fact that tenure is, for better or worse, hardly an extraordinary challenge in the legal academy. Consider the bar exam. I tell students that they ought to take it seriously, budget their study time carefully, take plenty of practice exams, not let it all wait till the last minute, and so on. But I also tell them that for most students who are capable of graduating from my law school, if they do all those things there's no reason to get into a state of panic about it. I would say roughly the same thing about law school tenure. The amount of energy many pre-tenured profs expend worrying about tenure still seems to me disproportionate to the actual grounds for concern. Law professors should worry about tenure enough, but not way too much.

A broader point I have made about tenure here before is that this is supposed to be a profession and a vocation, not just a sweet job. (Although it surely is that.) For all the talk one hears from (some) law professors about speaking truth to power, speaking independently and courageously, and so on, I don't hear half as much talk about how professors seeking tenure should worry first and foremost about those things, and not about securing tenure. I don't buy the view--which I see much less of these days, although there are still vocal proponents of it--that anyone capable of getting a job in law teaching could easily switch over into a lucrative job in private practice. That might have been true when one started law teaching, but not by the time one has invested several years in teaching and out of practice. But I doubt the choice is generally between teaching or nothing for most. In any event, to the extent that one believes that law teaching ought to be a vocation and a profession, that shouldn't be the deciding factor in your choices as a teacher and scholar pre-tenure.

Thus, my best advice for entering law professors is still: Decide what kind of teacher and scholar you want to be, and--with due humility and willingness to take advice from others--be that kind of scholar and teacher. If that means you feel compelled to write a book before tenure, maybe you should. If it means you want to co-author some pieces, perhaps you should. If it means you feel compelled as a scholar to write about a controversial issue, then by all means do so; there's no guarantee that the courage you lack now will suddenly appear after you've been tenured. I'm not saying to ignore the realities of the tenure process under current norms, or to refuse to accept prudent advice from older and wiser colleagues. There is a difference between being intrepid and being ignorant or blind. Still, it is important to cultivate a sense of yourself as a scholar and teacher from the outset, to have a sense of self and integrity, to focus on your vocation rather than on job security, to care about the work rather than the job, to do what you believe you must. If that involves risks, those risks are quite acceptable, and fall under the category of "first world problems"; and the percentage of tenure grants at law school suggests they're usually not huge risks anyway.

That said, the advice given in the earlier post and summarized above is generally sound and should be kept in mind. But I do have some questions about it. In particular, some of the advice about getting pieces out, co-authoring, and book writing seems a little behind the times. The hiring model has increasingly moved away from one in which the entrant has little experience teaching and writing before entering the legal academy. Most schools insist on prior publications, and in many cases the entrants are given partial tenure credit for at least one of those pieces. And many people entering the legal academy come from fellowships, in which they've already demonstrated an ability to write and publish (and, in some cases, already started up working up their teaching notes). For someone who already has a couple of pieces out and one or more in the pipeline, the advice not to co-author yet or to wait on a book seems less apt. We should consider whether the changing way in which we hire is changing, or should change, the advice we give (and the norms and standards we apply) to those seeking tenure. That's double-edged, perhaps; maybe we should expect more of the writing of junior scholars who already have substantial writing and teaching experience. But it may also mean that there's more room for flexibility in the choices those individuals make in their pre-tenure years.

Let's talk about the "don't overinvest in teaching or practice" point--which, again, was made in a spirit of realism, not commendation. Some responses, here and elsewhere, suggested that this revealed everything we need to know about law schools and law teaching. I get the reaction, but I think it's wrong. First, I could imagine similar advice being given across the academy. Second, whatever "overinvesting" in teaching means, the original post suggested--correctly--that most junior law professors do it; and I think he was right that most of us are happy we did so. Your colleagues are not the ones standing in front of a room of students, who have reasonable expectations that you'll know how to do your job; you are. And you do have an obligation to them. Third, he didn't recommend underinvesting in teaching, or define what an appropriate investment in teaching is. As I understand it, what he said, in effect, was: you ought to teach well, but you ought to be aware that your colleagues will judge you more for your scholarship than for your teaching, for better and worse. That is accurate--again, for better or worse. The best advice I can give is that the way to resolve this is not to invest less in teaching, but to be willing to invest more in late nights and foregone personal time so you can also get your scholarship done. That's not too much to ask, given the terrific job you have.

I am more interested in a different question: not whether law teachers overinvest in teaching pre-tenure, but whether they underinvest in it later. I don't have a sense of how much this happens. My own experience, over ten years of teaching, was that I invested heavily in teaching in the first few years, went through a period where I invested less than I should, and for the past few years have tried to retool and increase my investment in teaching. I confess I still have more to do on this front; I've changed my evaluation approach a lot, and altered chunks of all my courses, but I would like to increase my class prep time and ought to think about switching casebooks again. I'm pretty confident I'll get there, and then go through the cycle again. I suspect other teachers go through similar cycles over the course of their careers, and that this isn't different from the up-and-down waves that all people experience in their careers. But the incentives to invest in teaching do go down after tenure. It's important for law teachers, including those just starting out, to remind themselves that every few years, the best thing to do with a really good set of class notes may be to throw them out and start over, to reinvest in one's professional training as a lawyer, to rethink what works and doesn't pedagogically, and so on. 

Another question the earlier post didn't address much head-on is how we should feel about the current norms. I'll just say I think it was evident that the post was at least ambivalent, if not critical, about some of those norms. I would add that I think junior professors, even if they take the earlier advice on board, are not excused from rethinking those norms and speaking out about them. And part of the reason I feel this way is that I think it's easy, once one takes those norms for granted, to start imposing them thoughtlessly once one is tenured and voting on tenure decisions. I worry that pre-tenured professors who do things a particular way because "that's the way it is," while saying that of course they don't agree with the way things are, will end up imposing the same norms once they're entrenched in the academy: that they'll turn an is into an ought without thinking much about it. 

Leaving aside institution-specific questions, is it or should it be impolitic or impermissible to talk about an "appropriate" investment in teaching given prevailing norms, or to talk about the burden of grading exams, or in general to talk about the ups and downs of being a law professor? My general answer is: God, I hope not. But I would add two things about that.

First, it is accurate to say that these are not huge concerns and that they in no way outweigh the many, many privileges and advantages of the job. Complaining about grading exams can seem like complaining that your other car is in the shop or that it's hard to find good help these days. I worry that what this means in practice is that any such post will have some obligatory, boilerplate preface or caveat, that this will have little to do with real candor or sensitivity, and that some readers will draw wildly oversensitive conclusions about the callousness of the writer if the standard formula is skipped. And I worry that people will just stop writing about those matters altogether. But I agree that there is room for recognition that these are not the biggest or most challenging problems in the world, even for the law teachers who write about them.

Second, I think there is room for a recognition that any job also involves mechanics and personal considerations; that some people--law teachers, obviously, and would-be teachers, and other academics, and even law students--may be interested in those mechanics; and that it's not per se unreasonable or insensitive to write about them, even in an era of "law school crisis." There must surely be people out there who take their jobs--or their nice cars or nannies or what have you--for granted. But writing about the mechanics of one's life or job does not automatically mean that one takes these things for granted or lacks any perspective about them.

I imagine there are surgeons out there who discuss what music they like to play in the operating theater, and may even do so publicly. In a one-on-one conversation with my own surgeon, I'd probably prefer she not bring it up unless I raised the question first. But I might indeed be curious about that question, and I wouldn't assume that because she's interested in it herself, she doesn't care about the patient or the surgery. Nor do I think all surgeons should be obliged to pretend they don't care about it, that every minute they spend in the OR is taken up thinking about their patients' hopes and dreams, that it never crosses their minds that their feet are tired or that some particular procedure is routine or a pain in the ass. In talking about the mechanics of our job, we should be sensitive. But that's not the same thing as concluding that it's always insensitive to talk about them. That's not reasonable sensitivity.

If I may offer an example closer to home, the Chronicle of Higher Education recently ran an article--under a pseudonym, alas--titled: "I Don't Like Teaching. There, I Said It." The author's point was not that he or she hates the job altogether, or that anyone should pity him or her. Nor was it that he or she would phone it in from now on. It was a simple human admission that, even in plum jobs, there are times in one's career when one gets more or less personal rewards or has more or less warm and fuzzy feelings toward that job or some aspects of it. The author concluded (my emphasis): "Too often we look at whether a colleague or a prospective colleague seems to like teaching, and then use that as a proxy for whether they are good teachers. We should look at whether they engage in the right behaviors." 

I didn't agree with the whole article, by any means. But I didn't think it was insensitive--especially in a journal that is primarily read by an academic audience (as this blog is). It is true that there are plenty of people who would love to have that person's job. It is also true that there are plenty of humanities students who would like to have better teachers--or less crippling debts, or some kind of job upon graduation. That's true for law schools too, and we should think about, write about, and (the hardest part) act on those concerns. It's also true that on a straight utilitarian measure, if it were insensitive to ever write about anything other than the worst problems, we would all be better off writing about (and moving to) Syria or Haiti rather than anything having to do with American law professors--or American law students. I take Luke 14:26 and Matthew 19:21 very seriously, and I don't care for readings of those verses that domesticate them. Most people fail that standard, of course; certainly I do. It's a good, if brutal, standard for moral self-judgment. It's not a very good standard for judging others. And it's not a very realistic standard for choosing writing subjects either.