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Saturday, October 04, 2014

A Law Professor Who Doesn't Want Tenure

I'm a big fan of the writing of Kyle Graham (Santa Clara), and I think a recent post at his new blog deserves some extra attention.  Titled "Tenure," it begins:

So, I decided a while back that I didn’t want to apply for tenure, and advised the administration and (more recently) the faculty at Santa Clara Law of my decision. I reached this conclusion after conducting an inventory of my strengths and weaknesses. Pursuant to this census, I determined that, assuming I remain in academia, I’d probably be a better teacher and scholar without the cushion that tenure provides.

The post concludes: 

I don’t want to be that guy — the professor who gets tenure, and then sits on his hands and reads straight from the casebook in class. I don’t think I’d be that person even with tenure. But why take chances? And although a professor without tenure is more likely to get dismissed than one with tenured status, that’s OK, too. I see it as my job, going forward, to perform well enough to make certain that doesn’t happen. If it does, well, I’ve still got my bar card, and being a park ranger wasn’t so bad, either.

Posted by Orin Kerr on October 4, 2014 at 11:14 PM in Life of Law Schools | Permalink


Brian Tamanaha: "Kyle is showing his courage and integrity."

If you were to plot law school outcomes (vertical) by tuition (horizontal),
Santa Clara would be one of the outliers, a school with high tuition and lousy
outcomes. His living comes from federally backed loans taken out by students
who are among the most deluded/ignorant of law school students.

Posted by: Barry | Nov 13, 2014 10:00:56 AM

" But I would rather get fired if I prove to be dead wood, than to continue to leach a salary for thirty years until retirement for little to no ongoing useful work."

First, you're presenting a false choice - get tenure and rot, or don't get tenured and do good work. Second, frankly, you are not doing good work - your school has sky-high tuition and horrible outcomes. The legal market doesn't want around half of your grads. Your job depended on students not realizing this, and getting government-backed loans which socialize the risk.

Posted by: Barry | Nov 12, 2014 8:03:12 PM

Three points:

1) I can verify that Kyle has been thinking about this for a long time.
2) If Kyle intended this as a way to get traffic to his new blog, he's the worst advertiser ever. He didn't tell anyone about the post and no one noticed it for a week until I happen to visit the blog and found the post worth sharing.
3) One reason I blogged about Kyle's post is that I'm familiar with his work and I think very highly of it. There's no question he would get tenure where I teach, for example. And it wouldn't be a close call. So the story is "professor who easily surpasses the tenure standard doesn't want it," not "professor who might not get tenure pretends he doesn't want it to get attention."

Posted by: Orin Kerr | Oct 8, 2014 10:02:11 PM

Normally, I wouldn't see the point of adding to a Comments thread that seems like it’s petering out on its own accord.

But since (1) there’s been a little bit of inaccurate guesswork in the comments about the motives behind my decision; (2) PrawfsBlawg keeps its comment threads visible forever, meaning that silence on my part would elevate this speculation to Permanent Truth (I’m pretty sure the Supreme Court’s recent Salinas v. Texas decision implies as much); (3) and I have an hour to go before I have to walk my dogs, I thought I’d chime in and quickly clear up a misconception or two. Not that anyone cares.

I’ll focus on the comments by Anon Untenured Prof., if only because it seems pretty clear from Jason's comment that he fundamentally misunderstands the core rationale behind my decision -- it's not that I want to do less work, but more, and I feel that I will work harder and be more productive without the safeguards of tenure. I don't have much more to say in response to Jason, than that.

Oh, except this -- between you and me, Jason, I would really, really prefer not to get fired. As for whether I should get fired right now, because I am "uncommitted" or otherwise, well, I'll let me record speak to that. I made sure to post a link to my CV on my website, if it helps you decide my proper fate. But I would rather get fired if I prove to be dead wood, than to continue to leach a salary for thirty years until retirement for little to no ongoing useful work.

Turning to Anon Untenured Prof., “Untenured” – if I can call you that – I am guessing we don’t know each other. If we did, you’d realize that most people who know me are perfectly comfortable questioning my motives, reasoning, and indeed, my sanity to my face, without any need to use a pseudonym. I appreciate the utility of anonymity when speaking truth to power, but my reserves of Wrath, Vengeance, and Retribution are woefully limited.

Anyhow, Untenured, you surmised that my post on Tenure was, in your word, “clickbait.” I didn’t know what that word meant, so I went online to find a definition. According to the Urban Dictionary, “clickbait” amounts to “an eyecatching link on a website which encourages people to read on. It is often paid for by the advertiser ("Paid" click bait) or generates income based on the number of clicks.”

This definition confused me. I don’t have ads on my website, because no one who wants to turn a profit ever would affiliate with a site largely dedicated to photos of my deceased relatives, auction-house updates, and bad parody pieces. So my “Tenure” post can’t be “clickbait” in that sense.

As for “encouraging people to read on,” well, guilty as charged. I absolutely do want the handful of people I expect will read my blog – namely, my family, my friends, and people I wish were my friends, but would in general prefer not to associate with me - to know of my decision, and the reasons for it. To borrow your words, in the “worst sort” of way, too. And if another junior law professor, deciding whether or not to seek tenure sometime in the future, were to read the post and learn that other academics also have regarded the tenure issue as something other than axiomatic, so much the better.

What about “hastily justified”? Untenured, do you have any idea how slow a thinker I am? The hamster only runs so fast in my upstairs wheel. I was debating whether to apply for tenure for AGES. I made my decision several months ago - coincidentally, about the same time I closed my other, older, better-read, much-more-pitched-to-a-general-audience blog. I chose not to blog about it then in part because I wanted to think about the decision as carefully and deliberately as my limited faculties would allow.

But, Untenured, I must confess I like your idea of making important life decisions for the primary purpose of having additional blog fodder. If you check out my blog next week, you just may see me propose to a Kardashian, or decide to move to Palau, or whatever it takes to get me to five Feedly subscribers. Stay tuned.

Posted by: Kyle Graham | Oct 8, 2014 9:33:17 PM

Maybe I'm cynical, but Kyle's post strikes me as the worst sort of click bait: provocative, hastily justified, and arriving at a time when page views are needed to keep/make a site relevant.

Posted by: Untenured Prof | Oct 8, 2014 4:02:25 PM

I think I see Agree's point here. Tenure is partially problematic because of the way one's behavior before shapes their behavior after. Someone on a tenure track has no job security (or not much) until they get tenure, so during that time, they might work hard to not do anything that will make anyone who might have input on that decision mad. That means not taking chances in teaching, service, or scholarship. And once you have six or seven years of habits built up in that direction, it might be hard to break out.

Posted by: Marcia | Oct 7, 2014 10:35:01 AM

"So I guess I really don't see much if anything admirable about the decision to not seek tenure. I hope my institution *never* hires someone who doesn't want to get tenure--if the position if for a "research" faculty member, I want them to desperately want tenure, and to publish as much as they can to get it."

I don't understand this slide from not admiring the decision to denying its possibility to others. Assume it makes sense for every institution to provide tenure as an attainable option for all research faculty (at least). Assume tenure provides a good incentive to publish, both because it is alluring and because if the candidate fails, the job goes. Graham says the lack of tenure keeps *him* performing; your account is not at all inconsistent with that. Unless you really think that for *all* people, tenure maximizes the incentive to perform over a lifetime . . . and you are so confident of your clam that you are unwilling to let someone else gamble his or her job security on the prospect you are wrong in his or her case. Really? Perhaps there's a story about how university jobs are invariably secure, and this merely removes an incentivizing prize/brass ring, but that too is a complicated justification that would have to invariably be true.

Hesitancy, it seems to me, is much better predicated on concern that this purports to justify non-tenure for everyone, which is not how I read it. Or that it *will* appear to work well for those preferring it (who might, of course, work well under any scheme), and encourage universities to erode the availability of tenure for others, for whom it will not work so well . . . and that other benefits of tenure will erode simultaneously. That story, though, involves a fairly steep and slippery slope.

Posted by: Anon | Oct 7, 2014 8:54:07 AM

I believe that at many research universities there is not an option; it's up or out. And I think there is nothing in theory wrong with that rule. The demands of getting tenure are supposed to be a "costly signal" -- only those who will be relatively research-active post-tenure are able--again in theory--to get through the tenure process. Of course, the theory doesn't work out perfectly in practice, and we all know senior faculty who, allegedly, don't "carry their weight". But I wonder if the actual numbers of those folks are relatively low. And if its not, is the problem really that many law schools of pretty lax research-oriented tenure standards? Some end-of-career folks may not do extra admin work, and they may be research-inactive. But if we have a life-cycle theory of career expectations, what's so wrong with that? As long as you set the teaching load at a reasonable level, I don't see what the big deal is.

SCU may allow someone to "not go up for tenure" and to yet stay on indefinitely, but why would they do that? Is that a wise rule? If SCU is really worried about "dead weight", then get rid of tenure. Does SCU really want to keep on someone is who so uncommitted to the job that he is OK with getting fired, and becoming a forest ranger?

So I guess I really don't see much if anything admirable about the decision to not seek tenure. I hope my institution *never* hires someone who doesn't want to get tenure--if the position if for a "research" faculty member, I want them to desperately want tenure, and to publish as much as they can to get it. If they don't want tenure, then be a clinician (but note--many of those folks also have some form of job security! Getting fired is not as easy as you would expect at a public university). Or remain a forest ranger.

Posted by: jason yackee | Oct 6, 2014 6:47:05 PM

Kyle is showing his courage and integrity.

Posted by: Brian Tamanaha | Oct 6, 2014 12:02:59 AM

Professor Graham is naive when he says "I see it as my job, going forward, to perform well enough to make certain [getting fired] doesn’t happen." He fails to understand that keeping his job, now more than ever, depends on things outside his control, in particular the financial resources of his employer.

If he were at a successful law that was worth its tuition, and had a healthy endowment from of grateful alumni, he expectations might be reasonable. But he is at Santa Clara, a school with high tuition ($47,000) where, as the school itself reports at
http://law.scu.edu/careers/employment-statistics/ less than half of its graduates got full time jobs as attorneys and over 20% were unemployed (they didn't even have jobs at Starbucks). It looks even worse when one looks at the data more carefully. Over one third of the grads who supposedly had full time jobs as lawyers were in firms with less than 10 lawyers; its hard to imagine how they will pay their loans back with jobs at such small firms.

Schools like Santa Clara will have to give ever larger "merit scholarships" which are actually nothing more than discounts. That leaves less money to pay the faculty. When cuts have to made, the untenured faculty will be the first to go. The school will cut an untenured professor, no matter how good his teaching and research, before the worst tenured faculty.

Professor Graham says he still has his bar card in case he gets fired. I hope he's got more than that. A bar card did not enable more than half of Santa Clara's grads to get a job. But, like most professors at schools with terrible job outcomes, Professor Graham has a big advantage over his students, he did not graduate from Santa Clara law, he graduated from Yale (funny how these schools never hire their own graduates for tenure track faculty). Maybe the Yale degree will make the difference for him.

Posted by: anon | Oct 5, 2014 8:24:52 PM

Agree, if you're making the argument that being less secure creates a more energetic mentality, than that's fine -- that's the argument Kyle is making. But if you're suggesting that having tenure makes you less likely to challenge your employer or to do something your boss might not like, isn't that the opposite of how it usually works? Tenured professors are somewhat famously not beholden to their employers -- so much that most probably feel they don't have a boss at all.

Posted by: Orin Kerr | Oct 5, 2014 6:39:04 PM

One of America's great scholar-poets observed that "freedom's just another word for nothing left to lose." The same is not true of academic freedom; the issue isn't tenure, or not, the issue is arbitrary firing or reorganization by a new manager, or not. Agree's point, although perhaps not Professor Graham's, seems inconsistent with serious, long-term, specialized scholarship. This is not necessarily a criticism.

Also, Professor Graham's decision has a distinguished pedigree; astrophysicist David Helfand formerly at Columbia did it in the '80s. http://www.nytimes.com/2012/01/22/education/edlife/david-helfands-new-quest.html But he got promoted etc.

Posted by: Jack | Oct 5, 2014 5:34:50 PM

You can do what you want you are not beholden to your current employer. Why limit yourself and your intellectual ambitions? So you risk not having tenure - you can move on and do something else. People who stay in the same place get into ruts and usually want to change but are fearful for losing that steady income from the source.
My point is if you free yourself from the tenure mentality you will be energized and emboldened to try new things and if for example you want that visitorship at a school that your dean has a personal rivalry with so be it.

Posted by: Agree | Oct 5, 2014 4:13:02 PM

"Agree," how does having less job security give you more freedom to do things that your employer frowns upon?

Posted by: Orin Kerr | Oct 5, 2014 10:29:02 AM

Another significant advantage is that the school doesnt "own" you - you do not need to play politics. If you are valuable they will tow ho to you. You can also re-create yourself and take on assignments (i.e., visiting gigs at certain institutions) that the school may frown upon.

Posted by: Agree | Oct 5, 2014 7:33:23 AM

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