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Wednesday, October 29, 2014

Tenure's "New Normal"

Building on the recent conversations about productivity and tenure standards: An untenured emailer asks: What is the "new normal" for tenure, whether as a matter of written standards or the "common law" of tenure? And, as I asked in Marcia's post, are schools upping the numbers, either in writing or in common law? Are we increasing the pressure on pre-tenured faculty, both by raising the bar and through the uncertainty? Relatedly, if you were writing tenure standards from scratch in the current writing and publishing environment, in the current scholarly environment, what would you adopt as the tenure standard?

The standard at FIU is three substantial scholarly works either published or accepted for publication at the beginning of the sixth year. That standard was adopted before I got here, although I imagine it was consistent with other schools at the time. As for creating a new standard, it seems to me that one article per year (and I agree with Orin that a new prawf should try to send something out in February of Year One) is more than reasonable, meaning a more approrpiate statutory minimum might be five pieces and a productive tenure applicant would be be in the 5-10 range. I would add that, to the extent coming in off a VAP is the new normal, many faculty would "count" anything written during the VAP but published after starting on the tenure track.*

    * So going Orin one better, someone coming off a VAP might be encouraged to hold that final VAP piece for the August cycle, which allows her to begin at her new school by immediately placing a piece.


Posted by Howard Wasserman on October 29, 2014 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink


I have seen no evidence or any reason to believe that the quality of teaching, writ large, has gone down (nor am I sure how to measure it). At every school I have taught at or attended, the most productive scholars were also generally excellent teachers. And that covers people who began teaching in the '70s, as well as people who began teaching in the past decade.

Posted by: Howard Wasserman | Oct 30, 2014 10:31:39 PM

I just want to reiterate how completely unhelpful it is to compare law with other disciplines for this topic. Law is the only discipline where it is conceivable to have an article that is 70 or 80 pages long. The task of writing an law review article is quite different than writing a sociology or anthropology article. It is ordinary to have articles that are 5-15 pages in most other disciplines.

And, I suspect because of the insecurity of being a generally non-empirical exercise, law review articles are heavily footnoted. Whereas, the methodology section would be the source for claiming your study is valid for other disciplines, the footnotes do the heavy lifting for most law review articles. Using footnotes properly is a time-consuming exercise.

Posted by: Anon | Oct 30, 2014 10:13:29 PM

Do we care if the quality of our teaching goes down while we raise our productivity standards?

Posted by: NewlyTenured | Oct 30, 2014 4:35:12 PM

If (almost?) everyone hired on tenure track gets tenure, it is very hard to tell what the "real" requirement to get tenure are. In order to find the line you need to have some cases that fall on either side of it.

Posted by: brad | Oct 30, 2014 12:18:27 PM

Great, thought-provoking post, Howard. Fear I'm venting to no avail, but if it makes me feel better.... But want to interject collaterally that there is a dramatic disparity in resources at play that gets ignored in the hiring brawl. The junior who produces 5+ with full governance load, no course release, minimal library and staff support, and minimal experienced mentorship, is a miracle worker, but is regarded in the pool on an equal footing with the 5+ junior from greener pastures. This perpetuates a "wealth disparity," if you will, where those who labor at lower ranked schools (fewer $$/student expended) are prejudiced to stay in those ranks regardless of talent or potential, while those who are nurtured receive applause for no better than comparable output. It would have irked me as a junior had I known enough to be irked, and it enrages me now as a mentor. Upshot on point is that output numbers do not necessarily equate 1:1 across institutions.

Posted by: Richard J Peltz-Steele | Oct 30, 2014 11:48:25 AM

Great point by Howard -- not the remark related to my explanation for the quantity inflation -- but the one about what the job is about. Every interviewee I've ever talked to claimed to want to teach and write and to be brimming with ideas. One substantial piece a year should not be a burden.

On a different point. I have rarely seen an article that could not be better if more time were spent on it. Thus, higher numbers probably have some impact on quality. In fact, it may be that professors feel that satisficing is the goal when the pressure is on -- will this be good enough, not is this the best I can do?

Posted by: Jeff Harrison | Oct 29, 2014 10:05:41 PM

This is an empirical question that can be answered by looking at folks who received tenure in the last 2-3 years and counting their articles on SSRN as of the tenure date. Based on my own observations, I would guess the new normal is much closer to 5 than it is to 10.

Posted by: Michael Risch | Oct 29, 2014 3:34:27 PM

Longtime 1L Teacher,

I'm a little confused. Are you saying that placement with a "good journal" is not a signal for article quality? Because if the pieces are "disposable junk" and placement in a good journal is evidence of quality, then how can more junk articles make placing good work in good journals harder?

Posted by: Former Editor | Oct 29, 2014 2:50:48 PM

Longtime: No, I am not "suggesting that more is better, period." Rather, I am suggesting that the proper perspective is what's good for legal scholarship as a whole, not what's good for the self-interest of particular professors already in the market. As I see it, increased competition for spots in top journals is a good thing for scholarship, not a bad thing for scholarship.

Posted by: Orin Kerr | Oct 29, 2014 2:50:47 PM

Orin, you seem to be suggesting that more is better, period. Surely it is clear that law journals these days are filled with disposable junk -- junk often pushed out by legal academics who feel themselves under pressure to produce reams of output.

Posted by: Longtime 1L Teacher | Oct 29, 2014 2:11:56 PM

"Longtime 1L teacher" complains that when junior professors write so many articles and submit them for publication, "the problems of placing good work in good journals get worse for everyone."

Maybe I misunderstand, but this is like complaining that a competitor has started selling better products at a lower price.

Posted by: Orin Kerr | Oct 29, 2014 1:56:44 PM

Anon2 makes an important point that is often lost in the discussion of "standards" and what we "have to do" to get tenure: If you are doing this job, you should want to write and you should write because you want to and because you have something to say, not just to get tenure or to do "enough" to meet the standard. Someone who is genuinely committed to writing and to being a scholar can easily do one piece a year, even with new class preps.

Posted by: Howard Wasserman | Oct 29, 2014 1:45:55 PM

Our tenure standards say three substantial pieces. I know of some people in the last ten years or so who went up with only three pieces, but that is not the norm. I would guess 4 or 5 is the norm. I definitely wanted to err on the side of over-producing (also, I really enjoy writing), so I went up recently with seven law review articles and two book chapters. And yes, I was advised to hold my job talk piece until the fall of the year I started so that it would count for tenure.

Posted by: anon2 | Oct 29, 2014 1:41:41 PM

I am happy to have that conversation. Or you are welcome to start that conversation on your own blog. I wanted to write about scholarship in this particular post.

Posted by: Howard Wasserman | Oct 29, 2014 1:30:41 PM

Two quick thoughts related to the quantity/quality issue. First, as a veteran of another department it was common to have far more articles that law profs. Many of these were very short reports on an empirical work and had multiple co authors. And from the same batch of data, several articles could be written. This is not to suggest that that work is not of great value especially when compared to legal research but it is a whole different undertaking.

Part of the numbers race can, I think, be traced to the relative fear of law prof reviewers. If all or most articles get positive reviews as a qualitative matter, numbers become the substitute evaluative tool. In fact, the "review letter market" may encourage predominately positive reviews. In short, law professors are generally too worried about being openly critical of someone else's work to write unbiased reviews.http://classbias.blogspot.com/2006/12/letter-marketand-easy-writers.html

Posted by: Jeffrey Harrison | Oct 29, 2014 1:26:00 PM

Yet no requirement for or discussion of teaching proficiency . . .

Posted by: Teary-eyed anon | Oct 29, 2014 1:21:24 PM

Why does "quality ha[ve] to suffer" because a junior professor is publishing 2-3 or more pieces per year en route to tenure? Why can't that person simply be more productive than others who publish less?

Posted by: Doug Richmond | Oct 29, 2014 1:17:31 PM

I think Howard is correct that the bar is being raised, but my impression is that this is not a result of increasing demands by tenured faculty for greater productivity. Rather, the problem seems to be created by untenured faculty themselves reacting to the incentive structure by behaving in a way that is individually rational but collectively maladaptive. As I see it, what happens is that junior faculty understand the publication requirements but seek, understandably, to clear the bar with plenty of air. So if the school might tenure someone with three articles, they are inclined to write five. People with five articles are tenured. New juniors look around and see that all the recently tenured people had five pieces, so they assume that safety lies in having seven. Some junior scholars at elite schools are going up with eleven or twelve pieces; I saw one example of something like 17 or 19. That is crazy. Quality has to suffer, and the problems of placing good work in good journals get worse for everyone.

Anon, medical school profs may have 100 articles, but they all have 20 co-authors, and they are typically five pages reporting single results. That's a perfectly reasonable model for someone with an ongoing lab but it's irrelevant for anyone outside the sciences.

Posted by: Longtime 1L Teacher | Oct 29, 2014 12:46:50 PM

I'll go anon one better: For all N, where N is a professor in a discipline other than yours, N is a slacker.

Posted by: Bruce Boyden | Oct 29, 2014 12:33:41 PM

My spouse is a humanities prof. In his/her department, de facto tenure requirements seem to be one publication per year with one of those being a manuscript at least under contract from a legitimate press (though not necessarily a university one), and at least half of the publications being peer reviewed.

Posted by: Humanities spouse | Oct 29, 2014 11:20:54 AM

I will just comment that when I was on a medical school faculty, one as required to have 100 publications PLUS grants to get full professor. So, having 3 or 5 seems really... weak.

Posted by: anon | Oct 29, 2014 11:05:19 AM

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