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Tuesday, February 11, 2014

Should Law Schools Fire Professors Who Do Not Write Post-Tenure?

My general understanding of the law school scene is that law schools hire people to produce legal scholarship, give tenure to folks who produce legal scholarship, gives raises (of varying degrees) for producing legal scholarship, but never fire post-tenure for failing to produce legal scholarship.  And that this is true from the schools with the highest scholarly reputations on down.  But Brian Tamanaha has challenged my thinking, in a comment to a post yesterday:

Tenured law professors have three core duties (as stated in bylaws and in ABA and AALS regs): scholarship, teaching, and service. We are paid to do all three. You are suggesting that we only have the latter two duties because schools don't fire professors who fail to write.

Holmes recognized the difference between a right or obligation and the chance someone will bring legal action to enforce it. You are using the low probability of the latter to claim that professors do not have an obligation to write--and therefore are not paid to write. Anything we do outside of teaching and service, by your reasoning, is just compensated "free time." This does not follow.

To see why, imagine what would happen if a law school threatened to fire "for cause" a tenured law professor who has not written in the last 5 to 10 years. You are right that this has seldom occurred in the past, but do not assume it is non-existent (rather than quietly settled to avoid embarrassment). And it is certainly possible in the future given current financial pressures. A law school in this situation would have a very strong case for legal termination. That is why your position is wrong.

Just to be clear (and not go through the entire thread) -- I actually agree with Brian that law profs have an obligation to produce scholarship.  But is that obligation legally enforceable?  Has any prof been fired for failing to write post-tenure?  Or has any professor been pushed out the door *solely* for failing to write post-tenure?  So -- good teacher, good institutional citizen, no scholarship, and threatened with termination?  My sense is that this just doesn't happen.  Am I wrong about this?  And if not, why do we not see more of the enforcement that Brian suggests?

Posted by Matt Bodie on February 11, 2014 at 10:20 AM in Life of Law Schools | Permalink


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p.s.-- Those of you who know me might think the dean was exacting retribution for my conservative political views, but I doubt that very much in this case. I think it's just a stubborn resolve to stick to objective rules even when they don't make sense. To which might be added that the rules could be an attempt to divert faculty from interdisciplinary research (e.g. law, for me) to topics and journals more likely to help in the magazine rankings.

Posted by: Eric Rasmusen | Feb 13, 2014 12:22:12 PM

Currently, a professor does have to show up for his classes, and show up sober (maybe), but preparing for them is optional. That might be enough; shame induces preparation if he has to show up anyway.
With research, perhaps just having to produce enough pages of published output would be enough. I have a personal story of the dangers of this, however--- though in a business school setting. My past two deans have been management professors, who like bureaucratic quantification for incentives. They keep a list of “A” journals. Last year the dean reviewed my 5-year research output, which was lower than usual but still, I think, respectable for an old guy, and thought only the boldfaced journals below should count, and hence I should fall in the “research inactive” category and my teaching load should be raised from 3 semester courses per year to 4. My chairman had to argue quite a bit with her to get an exception made. I don’t know if it helped that my Harvard Law frequent co-author was willing to publish with me in these journals--- Indiana Business isn’t as slack as those Harvard guys!
I’ll list the cites, as both useful for the example and to try to get more of you to read my papers. (All but the book chapter were referee’d, by the way)

48. "Convictions versus Conviction Rates: The Prosecutor's Choice," (with Manu Raghav and J. Mark Ramseyer). The American Law and Economics Review, 11: 47--78 (Spring 2009).
49. "Public and Private Firm Compensation Compared: Evidence from Japanese Tax Returns," (with Minoru Nakazato and J. Mark Ramseyer). Korean Economic Review, 25: 5--34 (Summer 2009).
50. "Career Concerns and Ambiguity Aversion," Economics Letters, 108: 175--177 (August 2010).
51. "The Industrial Organization of the Japanese Bar: Levels and Determinants of Attorney Income," (with Minoru Nakazato and J. Mark Ramseyer).Journal of Empirical Legal Studies, 7: 460--489 (September 2010).
52. "Executive Compensation in Japan: Estimating Levels and Determinants from Tax Records" (with Minoru Nakazato and J. Mark Ramseyer). Journal of Economics and Management Strategy, 20: 843--885 (Fall 2011).
53. "Can the Treasury Exempt Companies It Owns from Taxes? The $45 Billion General Motors Loss Carryforward Rule" (with J. Mark Ramseyer),The Cato Papers on Public Policy, Vol. I, Article 1, pp. 1-54 (2011) edited by Jeffrey Miron, .
54. "Internalities and Paternalism: Applying Surplus Maximization to the Various Selves across Time." Social Choice and Welfare, 38: 601-615 (2012).
55. "First- versus Second-Mover Advantage with Information Asymmetry about the Size of New Markets," (with Young-Ro Yoon). Journal of Industrial Economics, 60: 374–405 (September 2012).
"Are Americans More Litigious? Some Quantitative Evidence" (with J. Mark Ramseyer). An American Illness , edited by Frank Buckley, Yale University Press (2013). .

Posted by: Eric Rasmusen | Feb 13, 2014 12:18:27 PM

Frankly, if a professor is not getting articles accepted, they might not really be writing very good articles. What's interesting about legal academia is that while getting a research degree requires one to have one's work constantly critiqued for years, legal academics generally do not have that kind of review, so sub-par writers are more likely to make it into the academy. The editorial staff of a law review is, in most cases, not competent to evaluate legal scholarship in any serious matter; if you can't get an article accepted by them, then that may reflect substantial flaws in your work.

Posted by: TWBB | Feb 13, 2014 9:28:58 AM

"What about law profs who write and write, but whose articles aren't accepted for publication"

There are a truly extraordinary number of journals out there. How often does a tenure-track or tenured professor cast a wide net and come up empty? I suspect rarely, unless there are unusual circumstances (e.g., sending off-cycle, writing article in Sanskrit, and so on).

Posted by: andy | Feb 12, 2014 8:20:48 PM

What about law profs who write and write, but whose articles aren't accepted for publication? Given selection bias and networking effects over the course of a career, this would seem to disfavor profs producing great research at lower-ranked schools (whose publication prospects already suffer the effects of their school's ranking), and favor profs producing mediocre research at higher-ranked schools (whose school ranking already redounds to their benefit). Should the latter enjoy greater job security to boot?

Of course, Matt's post leads one to consider the publication venues for legal research. Blind peer review would make the concerns I raise here moot.

Posted by: Monica Eppinger | Feb 12, 2014 1:06:55 PM

Law professors who offer no value to students in that they no nothing about the actual practice of law and instead spend their time dwelling on irrelevant topics that only interest them and their friends should be fired. We law students believe that it's a joke that we're being taught by people who know virtually nothing about the real practice of law. I guess we should have known this going in, bud didn't, and I suppose that that's our fault.

Posted by: JMC | Feb 12, 2014 12:23:00 AM

To "once a student": did you ever email those professors whose "door was never open"? Ever try to do independent work and seek advice from anyone? Every try the clinic?

As for profs who "teach, write, and serve" well--there are plenty. There are also plenty of students who put in minimal effort and barely try to get engaged with the scholarly and community service missions of their school. I was one of those my second year--totally alienated. I found my way third year.

Posted by: Angry Nerds | Feb 11, 2014 8:52:09 PM

The law schools should never fire a good teacher and servant because he/she is not producing "scholarship." Students don't pay for "scholarship," they pay for people to teach them. I could care very little about what law review article you are writing (which maybe five people will read). But, I do care about your ability to (1) inspire students; (2) teach them the law; (3) be a mentor; and (4) promote ethical behavior. I had several professors who were viewed as productive scholars, but they were AWFUL teachers. Just plain awful. Their doors were never open, they viewed students as a necessary evil, they had no idea what the practice of law was really like (because they never did it), and it was obvious they spent a sum total of 25 minutes preparing to teach their class. Students tried arranging their schedules to avoid those professors. Yet, it was well known (and publicly available at my state school) that those professors were often the ones with the biggest salaries.

I know "scholarship" is a big deal in the academy. And, I think writing about things you teach is a good idea and should be encouraged. The production of scholarship, however, should not be the primary focus of a law school faculty member---teaching the law well, educating lawyers, and serving the institution should be the primary focus. I will take the "non-productive scholar" who can teach the phone book over the "respected scholar" who stands in front of the class and reads the same outline he/she has read for the past ten years and ignores students so he/she can spend time on some writing project. Ideally, we would have professors who could do all three well (teach, write, and serve). Unfortunately, such people are few and far between.

Posted by: once a student | Feb 11, 2014 6:03:26 PM

As a practical matter, accounting for 40 hours a week is very difficult for faculty members to do if they are not spending at least some time researching and writing. We'd all agree that the first (and second and third and fourth) time you teach a subject, one spends an enormous amount of time preparing and refreshing. At some point, one has become something of an expert in the subject and it doesn't take so long to prepare the course. Unless you have very heavy service burdens, it's hard to account for one's time. If teaching two 3-credit courses in a week, there is 6 hours of instruction time plus (for the experienced instructor) maybe another 12 hours of preparation time (a generous estimate). That's 18 hours. If scholarship is 0 hours per week, is that faculty member really spending 22 hours a week advising students, serving on committees, etc?

If you ask me, this is how law schools are going to have to save themselves. Faculty salaries are a big fixed cost and schools just can't afford the deadweight loss of nonproductive faculty. Their salaries could be used for much less expensive new hires who are much more willing to engage in a law school's missions.

Posted by: TalkingHead | Feb 11, 2014 5:51:51 PM

The headline is "should" but the kicker paragraph is all about "do".

On the should question, certainly if tenure is all about scholarship and you aren't writing scholarship than you ought not to enjoy the benefits of tenure. That doesn't necessarily mean you should be fired if you are contributing in alternate ways, but you should be year to year.

On the "do" question, I'd say that by and large not writing very rarely gets you explicitly fired and only rarely leads to any sort of meaningful pressure. On the hand, I think there's a bit of a false dichotomy there with respect to teaching and service. While you certainly can't say I'm not showing up at all, you can do a lazy, terrible job in both those areas and also have very little to no risk of being fired.

Posted by: new anon | Feb 11, 2014 2:38:38 PM

Carissa's comments lead me back to the "funding" question, which is what got us started on this. But just to make one thing clear: I did not call scholarship a luxury good! Here's what I said: "Many schools may look upon scholarship as a 'luxury good' that the school can no longer afford, especially when compared with teaching and service." But I don't personally agree with that view.

Posted by: Matt Bodie | Feb 11, 2014 2:27:14 PM


It is true that professors do not (and probably can not) refuse to teach. But I am sure that there are a number of faculty members at schools across the country who regularly shirk teaching duties --- e.g., refuse to take on an additional class, refuse to prep a new course, refuse to supervise independent studies, insist on teaching classes with low enrollments.

A similar story could probably be told about service: Faculty who refuse to serve on more than one committee; who regularly miss meetings and refuse to take on any of the tasks that are handed out in those committees; etc.

The big difference between the stories I just told about teaching and service and the story you tell about scholarship seems to be that no one seems to accept a zero productivity level for teaching and/or service. In contrast, at most every school you can find one or two faculty members who have published zero scholarship in three, five, seven (or more!) years.

I do wonder, though, if that isn't attributable to how workloads are distributed on law faculties. All faculty members are, to some extent or another, given their teaching and service assignments by the administration. As for scholarship, we are left to our own devices. No one tells me how many words to publish each academic year. But I am always told (with at least some input from me) how many classes I will be teaching and on what committees I will serve. In order to not teach or do service in a given year, I would have to affirmatively refuse. To not publish in a particular year, I would simply have to not get my writing done and submitted to wherever it is supposed to go.

Maybe that tells us something about how law schools could make changes in order to ensure more scholarship production. Or maybe not . . .

One more thing: when asked what scholarship they are working on, how many of these non-publishers would say "nothing"? I suspect that many (though not all) would claim to be working on some sort of project. Or that they would identify other writing---such as amicus briefs, op-eds for the local paper, or small somethings for a local bar journal---as the scholarship they have produced.

Posted by: carissa | Feb 11, 2014 2:09:36 PM

Matt, yes, that's right. Part of that is because scholarship is hard to measure: We value quality as well as quantity, so it's hard to know with certainty if a prof who hasn't written recently just is playing golf all day or is researching a brilliant idea that will be turned into an amazing book. And part of that is because, as you said, scholarship is a luxury good. We like it, but we don't strictly need it.

Posted by: Anon #245 | Feb 11, 2014 2:05:39 PM

I think people can in effect choose not to be committee members: they just don't show up much if at all.

Posted by: Michael Froomkin | Feb 11, 2014 1:58:28 PM

I think there is agreement on the reality out there. But I also want to be clear that this reality puts scholarship on a very different footing than teaching and service. Professors cannot choose not to be teachers or committee members. Deans do not tell professors, "You know, I haven't seen you teach in the last few years -- maybe you could write some more to make up for it."

Posted by: Matt Bodie | Feb 11, 2014 1:51:32 PM

I'm not sure if there is real disagreement here, so here's an effort at a consensus view:

1) Ideally, law professors are supposed to be active scholars.
2) Those who choose not to be active scholars can serve the law school by playing important roles in other ways, such as from outstanding service or extra teaching.
3) Some law professors choose not to be active scholars and also choose not to play important roles in other ways.
4) Deans should (and often do) encourage those professors in category #3 to be more engaged in scholarship/teaching/service.
5) When a professor in category #3 nonetheless refuses to be more engaged, they generally get a pass from the Dean. The professor won't get good raises, at least to the extent raises are not in lockstep, but he won't get fired.

Posted by: Anon #245 | Feb 11, 2014 1:44:15 PM


My position is more nuanced than the passage you quote suggests. While teaching, writing, and service are our three core duties, I believe we can contribute in different ways. A professor who does not write can make up for this through extra teaching or by doing extraordinary service beyond normal committee work, like running an important program for the law school. I would certainly not advocate terminating a non-writing professor who carries a full work load in these other ways. In the book I label this an "alternative contribution system." This is the best way to get the most productivity out of all of us.


Posted by: Brian Tamanaha | Feb 11, 2014 12:03:37 PM

I think the issue is more difficult than you present. First, you assume that the senior tenured faculty member is a good teacher and administrator many faculty's have individuals who cannot be characterized as good teachers, or willing administrators. This creates problems of using increased teaching loads to offset the lack of scholarship. Most deans I have encountered state that they are unwilling to increase the teaching loads of bad teachers because its bad for the students. In any event, most students don't take this person's classes, so they run small classes or classes are cancelled. Second, you assume that a dean is willing to put pressure on a senior faculty member in the ways you describe. While I think pressure should be increased, many deans take the path of least resistance and just let the "deadwood" float along. These deans are also unlikely to bring up the possibility of firing a tenured faculty member up for cause for failure to teach well, write, or engage in administration. Perhaps the question is also how we encourage deans to force the issue.

Posted by: anonyprofs | Feb 11, 2014 12:01:15 PM

I agree with you, Matt, that we don't see law faculty being fired for failing to write.

But I do think that pressure (informal or formal) sometimes is placed on those faculty. That pressure may take the form of increased teaching loads, increased service expectations, or even (for more senior faculty) pressure to retire. Not all institutions engage in this sort of pressure, but I know of at least a few that do.

Does that mean that there is no obligation to write? I don't know . . .

Posted by: carissa | Feb 11, 2014 11:53:14 AM

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