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Wednesday, October 29, 2014

The "New Normal" and Generational Change

Howard's interesting post below on whether there is a "new normal" for law school tenure standards brings up a broader subject: The different scholarly productivity expectations among law professors over time.  In the last generation or two, expectations have changed considerably.  Here are some broad-brush thoughts on that shift.

My understanding is that a generation or two ago, the usual scholarly expectation in law schools ran something like this.  First, getting an entry-level teaching job didn't  require any scholarship.  Instead, by the time a person came up for tenure, he (and it was almost always a "he") had to produce an article or two.  The lawprof job was more focused on teaching than scholarship, so an article or two was enough to get tenure. Consider now-Justice Stephen Breyer commenting on tenure standards at Harvard back in the late 1960s:

Those were the days when you just had to write one article [to receive tenure], and actually, I was the first person to whom Harvard ever applied the requirement that you have to write at least one. Erwin Griswold, who had been the Dean of Harvard Law School, had the theory that he knew which people were geniuses. If he approved of them, they would certainly do good work over time, and therefore they had to write nothing. After a while, however, people realized that was not such a wise idea, because someone has to push you to write something so that you see that you can do it. And probably everybody here has gone through that stage, and that’s not a pleasant stage. “How can I possibly write an article?” Everyone goes through that. Oh, they all think that I can, but they do not really understand.

Today, the idea of a tenure-track professor at Harvard asking “How can I possibly write an article?” seems exceedingly strange. The norm today is very different.  By the time a law professor today at any ABA-accredited school comes up for tenure, she -- and fortunately, the professor often is a "she" -- probably has been writing consistently for several years.  A typical professor up for tenure might have the following post-J.D. writing on her resume:

1.  The pre-VAP article(s).   This article (or articles) was written and placed to build credentials to get a VAP position. 

2.  The VAP article(s).  This article (or articles) was written and placed during the VAP window in order to build credentials for the tenure-track market.

3.  The tenure-track articles.  These articles were written during the tenure-track in order to prepare for the tenure decision.

One consequence of the new patterns is suggested by Howard's post: For many junior professors, the stated tenure standards at their law schools seem low.  If you wrote two or three articles just to get a tenure-track job, the requirement that you write two or three more over five or six years to get tenure has a certain Dr. Evil quality to it. It's not surprising that many tenure-track professors are doing more.

The contrast between the scholarly expectations of today's junior professors and today's senior professors when they were juior is particularly dramatic in the current hiring environment.  With many schools struggling, and lawprof vacancies few, there are many candidates on the market who can't get a job but who have more scholarship than already-tenured professors at the schools where they are unsuccessfully interviewing. 

Quantity doesn't mean quality, of course.  Some might say that today's junior professors write a lot, but not well.  But I think the relevant standard is a relative one.  Let's accept Sturgeon's Law that 90% of everything is crap.  Is the quality of today's tenure-track scholarship better or worse than that of tenure-track scholars in generations past?  I'm skeptical that the quality of such scholarship has gone down, and I think there are good reasons to think it has gone up.  

In any event, whether these developments are good or bad is a big question that is beyond this post. My point is really just that the dynamic Howard points to in terms of tenure standards is just a symptom of a broader shift over time.

(Update: I fiddled with this post a bit immediately after posting it.)

Posted by Orin Kerr on October 29, 2014 at 04:30 PM in Life of Law Schools | Permalink


Citation count!? see http://www.nytimes.com/2013/10/22/us/law-scholarships-lackluster-reviews.html?_r=0 ("About 43 percent of law review articles have never been cited in another article or in a judicial decision.")

Perhaps this is why you should have a consistent research agenda? At least you can cite yourself...

Posted by: Matthew Bruckner | Oct 31, 2014 4:45:30 PM

Where does citation count fit into this discussion? I know that it's imprecise, but in other disciplines there is a trend toward using quantitative metrics like citation count and Google scholar analytics to analyze the quality of one's scholarship. Surely, that is directly relevant to assessing scholarly impact and quality, no?

Posted by: Anon | Oct 31, 2014 6:19:54 AM

Matt, it depends on how you frame Mike Madison's concern. Do I worry that junior professors tend to write without being sufficiently aware of the relevant literature? Sure. Do I think the problem is worse now that it used to be? From what I see, no -- and probably the opposite.

Posted by: Orin Kerr | Oct 31, 2014 2:44:44 AM

Orin & Howard:

I'm interested in whether you are worried about the concerns that Mike Madison addressed in these posts:



VAPs don't have comps. I worry that in the rush to publish, junior profs are missing out on the opportunity to build an understanding of the existing literature before diving in.

Posted by: Matt Bodie | Oct 30, 2014 5:08:09 PM

There are many schools where the focus during the tenure determination purports to be on quality more than quantity; so long as the tenure candidate has met some minimum number of publications, her tenured colleagues talk about whether any of the articles is either good enough to meet an inchoate quality standard (usually defined with reference to that faculty's common law of tenure decisions), or bad enough to be disqualifying despite the other work. Coming up for tenure with six articles, each of them on the slight side, can be riskier than seeking tenure with only three, one of which strikes colleagues and outside readers as substantial, important, and likely to be influential. To the extent the tenured faculty asks itself, "how will voting in favor of tenure for this colleague enhance the reputation of the school for scholarly excellence?", a single ground-breaking article is likely to loom larger than six more modest contributions. (Also, if a candidate has six rather than three, there's a larger chance that one of them includes that unforgivable major mistake.) Determinations of "quality" leave a fair amount of room for subjectivity and conscious and unconscious bias, but they're unavoidable. To the extent that junior faculty perceive that they need to have published six or eight articles before tenure, though, that perception is probably not doing them any favors.

Posted by: Jessica Litman | Oct 30, 2014 9:31:31 AM

I think that I would write better papers if I had ~18 months to go from start to finish on articles than my time frame as a VAP. But perhaps I'll just learn to think faster.

When I was a VAP, I'll admit that I pushed articles out in order to have them ready as job talk papers even though I would have held them longer to tinker with them if I wasn't on the market. Those articles would have benefited from further gestation. As a result, I would hope that I could slow down a bit as a junior faculty member and take advantage of the (relatively) longer time horizon I have now. Even assuming I need ~5 articles to get tenure, I hope to have a longer window in which to complete each article.

To give more detail, the piece I used as my job talk for my current position was partially researched during Year 1 of my VAP, a terrible first draft was written over the summer between Years 1 and 2 of my VAP, I solicited comments in the later summer/early fall of Year 2, and then I submitted a slightly better second draft in September of Year 2 for publication. It was accepted while I was still getting comments, some of which were relegated to footnotes instead of turning into substantial overhauls. It was used as my job talk and landed me a position. But since it wasn't going to "count" (as I understand many pre-tenure track articles do not), I started on another article in the spring of VAP Year 2 instead of thinking further about my job talk piece.

In the summer between my VAP and my new position, I split my time between new preps and a new draft article (also terrible). I decided not to submit it this fall because I wanted the extra time. I will probably submit this Spring because Orin, et al seem to think that's best to show my institution what I can do. Still, this is only 1 year from starting research to submission. Maybe I'll be super productive writing this winter, while prepping for 2 new classes? But if I never get in the habit of letting papers gestate longer, then I suppose I'll wait until I'm tenure to write more deeply thoughtful pieces (unless I learn to think/write faster).

Posted by: wishing for an 18month time frame | Oct 30, 2014 8:46:02 AM

I think this is absolutely right. And it points to a different aspect of a comment to my earlier post: The increasing of standards may be coming fromfaculty hired under the new regime and with new scholarly expectations in the past decade, who now are tenured and senior and demanding the same of their junior colleagues.

Posted by: Howard Wasser134man | Oct 29, 2014 5:31:43 PM

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