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Friday, October 24, 2014

The push for quantity

Zak's post, Howard's post, Bridget Crawford's post, and Orrin's post and the comments to them pose some questions and some answers about the quantity of publications law professors and candidates for teaching positions have. Underlying these is a tension about tradeoffs between quantity and quality and concerns about the source of the pressure to produce. I would even go farther than any of them, and suggest there is something of an arms race afoot that we ought to be concerned about. Based on my experience as a VAP and on the hiring committees of two schools, I also think there are reasons in addition to those already suggested for that arms race, and I'll list them in no particular order. There is a lot of overlap among these, but I use a list for convenience (quantity over quality).

1. Labor market competition. There aren't very many desirable positions available in any given year. Something like fewer than 10% of those who apply through the AALS (which is the only easy place to track hiring stats) are successful, and especially as faculties are shrinking, the market is only getting tighter. Given that scarcity, candidates need to be ever more accomplished to even be considered.

2.  Publications are the coin of the realm. Most, even if not all, law schools use scholarship (defined relatively narrowly) as a central criterion for evaluation of law professors. This might be because the universities law schools are a part of consider scholarship to be the hallmark of an academic discipline and so put significant pressure on their law faculties to demonstrate that they are academics rather than practitioners. It might also be because U.S. News, by giving so much weight to faculty peer evaluation, creates an incentive for more scholarship. In addition, because the focus on scholarship and "productivity" have been part of law school culture for a fairly long period of time, law faculties take for granted the central importance of publishing--and tend to expect more and more of their newer colleagues as a matter of course.

3. Tenure has weird effects. The meaning and value of tenure is subject to serious debate right now, and I don't intend to make any value statements in this post. That said, job security of any kind is unusual in the U.S. system of employment, and so requires special justification to exist at all. Tenure is thought to be a way to protect academic freedom--the ability to say unpopular things--that helps ensure that as much data and full debate can happen as a way to contribute to knowledge. Scholarship is seen as the justification for tenure, and also, then, the consideration for tenure. And because it's the quid pro the quo of tenure, schools want to ensure that even after tenure, professors continue to contribute to knowledge through scholarship. What better way to predict future productivity than past productivity? It's kind of like content validity of employment testing--the best predictor of job performance is the chance to perform a sample of the job for a period. And because denying someone tenure means essentially firing them, and maybe ending their career at least as a teacher, no one wants there to be any question about whether tenure will be awarded. So, the pressure to demonstrate future productivity moves to the point of hire (or even before, ever earlier) to ensure no problems in achieving tenure later.

4. Quantity as equalizer. One of the commenters noted that it's easier to count than to evaluate quality, and this is especially true across disciplines. But that is not the only way that quantity is used as an equalizer. Hiring decisions are based on proxies for qualities schools think are valuable--merit badges, in the words of my friend Brannon Denning (as noted by John Nelson in this comment to a thread on the nontradition JD candidate). Traditional badges of merit have been the ranking of the law school one went to, class rank, membership on law review, clerking for a federal judge or possibly a state supreme court judge, and short experience in a big firm. They are almost literally stamps of approval by some other person who has judged the intelligence or abilities of  the candidate. Because of the system of student-edited law reviews (and the number of outlets for publication), those of us without those merit badges have the opportunity to make our own by engaging in the conduct that law faculties say they value. And that conduct is much more within our own control. That pushes those even with the merit badges to also engage in that conduct to remain competitive. It also gives a more diverse group of candidates access to opportunity. Finally, it allows law faculties to rely on what looks like a more objective measure of candidate quality.

5. Increasing requirements in faculty evaluation. Schools continue to increase the number of publications as a requirement for tenure. At one time, a single work in progress was enough in some schools for a person to be awarded tenure. Now, the expectation seems to be 1-2 articles published per year. And those expectations are being "codified" into tenure and review requirements.

6. Technology. This may sound trite, but it is simply so much easier to produce and disseminate our writing that we do it a lot more. The advent of the word processor spawned a revolution in the length and number of briefs filed in cases and the length and number of court opinions. It just became so much easier to draft and revise writing that writing proliferated. The ability to transmit that writing via the internet spawned another revolution. Access to readers and avenues for writing meant more of it.

Working all together, these create a lot of pressure to publish early and a lot.

Posted by Marcia L. McCormick on October 24, 2014 at 12:52 PM in Deliberation and voices, Getting a Job on the Law Teaching Market, Life of Law Schools | Permalink


Just realized that I read past the last part of Marcia's last paragraph and substantially repeated her analysis--sorry! But another vote for that take on it, at least. :)

Posted by: Scott Bauries | Oct 27, 2014 9:14:41 AM

I would add to what Marcia and Howard say that what Marcia aptly calls the "common law" of tenure (we use that term at my school, too) develops to "require" more articles in part because junior professors are naturally risk-averse. Because of this orientation, where a junior professor is able, he or she is likely to produce, for example, that fourth "kicker" article where only three are understood to be required. Over time, as several junior faculty earn tenure with the fourth "kicker" article, it becomes expected that tenure applicants will show up with that article. I have seen my school go from an expectation of 2 completed pieces plus a third substantially complete by the end of the third year (we tenure earlier than most) to an (unspoken, but real) expectation of three completed pieces. Not saying this is a good or bad thing, but I do attribute it to our having no codified expectation of the number of articles required for tenure.

Posted by: Scott Bauries | Oct 27, 2014 9:05:17 AM

Howard, I agree with you completely on #6, and an email someone sent me added SSRN to the mix as making debates faster.

I think that #5 is happening in 2 ways, one faster (relatively), and one slower. First, the slow change--schools revisit their tenure guidelines, and when they do, often look to schools they want to emulate to match guidelines with them. If the quantity is less, increasing is one easy way to show parity. I have heard from people making these decisions that number of publications being viewed as lower than peer institutions is viewed negatively by lots of their colleagues. Also, even if the numbers are similar, schools wanting to be be more "rigorous" might simply add an additional publication as a measure of merit to demonstrate that rigor.

The faster ratchet in the arms race is what I like to call the common law of tenure. Every school has written rules, but those are often broad and vague even when they include a specific number. Many schools develop a common law through practice that has much more stringent requirements than the written ones, often including more articles, with rules on placement, etc. And even if the practice doesn't punish people who meet the minimum, risk averse faculty members try to make the best case they can for tenure by over-achieving what the written rules are, and maybe over-achieving the records of the people who have already received tenure at their school. So the numbers creep upward, and the pressure continues to push them up.

Posted by: Marcia | Oct 24, 2014 5:50:01 PM

Is # 5 happening? At my school, the standard is 3 articles by the start of the fifth year (so, basically one piece every two years), which I thought was fairly consistent with many schools. Are some schools moving that up?

As to # 6, I would add the advent of blogging to this. Writing is a habit and blogs provide another, fast outlet for writing and for putting ideas down. Sometimes posts reflect a seed that grows into a full article, sometimes it's just a one-off idea that one puts out there. But the habit of continuous writing, even 500 words at a time, certainly helps in writing the bigger things.

Posted by: Howard Wasserman | Oct 24, 2014 3:58:41 PM

Quality is very difficult to measure. Letterhead bias prevents us from merely looking at the publication outlets and those outside the field at issue may not be able to evaluate quality well even if they take the time to read the research.

Posted by: anonprof | Oct 24, 2014 2:26:19 PM

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