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Tuesday, January 22, 2019

"Pre-Tenure"* and "Post-Tenure" and Why They Should Be (Mostly) the Same

I commend to readers Carissa's post below and, by extension, the answers she got to her questions on That Awful Social Media Site. Someone recently reminded me of a post I wrote almost exactly a decade ago on advice for tenure. I wrote there, "Tenure generally isn't the biggest hurdle in the legal academy, for better or worse, so there's no point being unduly paranoid about it; and if that tenure is really going to be worth anything, you ought to be willing to risk it at least a little.  I should hope that we all decided to pursue legal scholarship for a reason, and that the reason wasn't just job security; so pursue it." It was admittedly written shortly after I had received tenure, but these were my views by the time I had reached the application for tenure stage. (Indeed, I passed up the chance for tenure to take a lateral position, which required me to move without the certainly of tenure. I can't say that the decision loomed large for me. And I made a number of decisions during my application period that were expressly about doing what I thought was right rather than professionally prudent, in part to remind myself of and commit myself to those views.)

Some of the same spirit is evident in Orin Kerr's response to Carissa's call for comments. Orin writes that "an ideal answer is not to change much at all, as in the ideal world the professor was already doing what they loved and wasn't doing what they were doing [because] of tenure considerations. This is more likely in law than other fields, I think, given high tenure rates." And he notes that he did a variety of things before tenure that were not on the usual menu of recommended actions.

I generally think that one should behave the same before tenure as one does after tenure. But Larry Solum's list of advice items was useful in clarifying this view slightly. There are some items on his list (specifically, 2, 4-6, and 8) that seem to be relevant to the potential difference between tenure-track professors who are untenured* and those who are tenured. For example, he writes that tenure "imposes a time frame" while tenure "removes it," and that this can affect the kinds of projects one undertakes. And he talks about using the time after tenure to "retool." Similarly, he talks about using the advantages and longer time-frame of tenure to consider new areas of teaching. As a final example, he writes in the same item that untenured professors are often more narrow, focusing on a particular subject or issue, and that one should consider expanding (including into new areas) after tenure.

Most of his other items seem equally applicable to both those without and with tenure. "Read inside and outside your field" is something that anyone pursuing this calling ought to be doing as a matter of course, in part because reading "outside your field" often adds new insights to the state of things "inside your field" and in the world, and in part because it is what civilized people, in or out of the academy--even those who generally focus on a particular subject matter--ought to do. "Self assessment," again, is something that should always be on anyone's mind, in or out of the academy, at least if they are interested in self-knowledge, humility, and the remote hope of wisdom. And remembering and focusing on "the intrinsic rewards" of one's calling, or being "present for your family or friends," are goals we should keep in mind at every stage of our adult and working lives.

There are, I think, two features common to all of the bits of advice Larry offers that seem most pertinent to untenured professors on the tenure track: 1) Those who are seeking tenure have a deadline in mind, albeit a generous one, and one that is even more generous now that many people start teaching in medias res, after already having done a fellowship and some writing and teaching. 2) Those who are in an early stage of their academic career are newer and younger and perforce have less knowledge--of their field, of the world, of their own strengths, weaknesses, and limits, of their colleagues and of the folkways of their own institution and of the legal academy. The first calls for some degree of care in choosing at least a few projects that can be completed in time, and for similar reasons in focusing to some degree on a particular area rather than having to learn new things for each project. The second calls for humility. Not necessarily prudence, of the political or strategic kind, and indeed too much cultivation of that kind of "prudence" may make one into a life-long calculator, flatterer, and self-censor. But it is fair to recognize that one doesn't know everything--about one's field, about teaching, about one's colleagues, and so on. The person who remains silent at a faculty meeting before tenure for purely calculating reasons arguably is failing in her duty of faculty governance; the person who hesitates before speaking because she is aware that she may not be aware of everything, that she may not have the right answers, that things might be more complicated than she thinks, and that the issue may have its own institutional history, and who thus wants to learn a little first, is acting wisely and humbly--prudently, even, but this kind of prudence is about one's best self rather than one's self-advancement. There are good reasons for these two factors to influence one's choices prior to tenure. The rest of his advice, it seems to me, is good no matter the stage of one's career.

So, both as practical advice and as a matter of academic and professional values, I would argue in response to Carissa's call for opinions and advice that for the most part, barring questions of timing and humility, one should be and act the same both pre- and post-tenure. As Orin notes, tenure rates at law schools are, as best as I can see from the data I have, much higher than they are for many sectors of the academy. It's true that one may also be thinking of "lateral" advancement, of fame and reputation, and so on. But even if one never moves from one's first job, for those of us who are called to this line of work even the "worst" job is the best job we have ever had. Given that, and however nervous one naturally gets about it, the reality is that tenure is not the highest of hurdles. One can, and should, think about the long term even as one keeps in mind basic shorter-term needs. Given the relatively small number of pieces required for tenure, there is room to write that book, or at least start writing it, especially if one has already done a good deal of writing and publication on the subject. There's room to think about one's teaching and service, even if humility and timing counsel not reinventing the wheel every semester. One should not see oneself as two radically different individuals--one calculating and cautious, one "liberated"--before and after tenure. 

I suggested that this advice is both practical and value-based. On the latter front, I have deliberately used the word "calling" throughout this post. That is what the life and job of a scholar and teacher is supposed to be, and one should treat it as one, and ponder and cultivate from the beginning the values and conduct of one who is called to this work. One's duties as an associate and as a partner may be different at the kinds of firms many of us worked at; but one doesn't save ethical conduct until one is a partner, and many an associate who is "called" to partnership will be thinking about clients, client development, and business questions early on, while many of us who are definitely only short-term associate material only sit in our offices and work. In any profession and/or calling, the younger professional may still have much to learn, but certain values and behaviors are supposed to be ingrained in one from the moment one begins and, in many cases, literally takes one's oath as a member of that profession. Someone who treats academia as a calling will, at least ideally, act with that calling in mind from the start and put the values, traditions, and ideals of the calling first, including putting them ahead of questionable calls that might aid one's own career. 

That said, the practical and the prescriptive are by no means wholly separate. The ideal conduct and values I'm urging here are not radically inconsistent with the hope of promotion and tenure, especially given our generally high tenure rates; even leaving aside how one should act, one generally need not be radically calculating before tenure. But there's another reason they're not separate. From the start of one's career, one is engaged in professional and personal formation. One's choices and actions inculcate values and habits that are likely to last a long time--perhaps for the whole of one's career. Without wanting to overstate the point, I worry that those who think they can act in a more "prudent" fashion pre-tenure--"prudent" in this case meaning cautious, careerist, deliberately silent, calculating, and so on--and will then act as they think they should act once they are tenured are underestimating the effects of their early choices on their longer professional formation and their identities. The person who learns early on to hide her thoughts, flatter the great, and judge every decision by how it will affect their advancement may internalize those habits and make a career of them. Tenure won't necessarily lead them to shed these habits. Moreover, they may end up applying those habits in turn to junior colleagues. The person who tells herself she should act "prudently" before tenure lest she harm her own professional chances may tell herself at the time that these are bad but necessary habits, that in an ideal world she would not have to act this way, and that she certainly won't treat new colleagues the same way. (On the other hand, cultivating humility and an awareness of what one doesn't know at an early stage of one's career is something one should do regardless of professional advancement.) But upon reaching tenure, she may find that she is repeating the same advice she got when she started--and she may even end up judging negatively those who don't play this kind of game as juniors, thinking of them as presumptuous, incautious, unwise, naively unaware of "the game," stubbornly or rudely unwilling to take her advice, and so on. What everyone is supposed to be thinking of as a temporary and unfortunate expedient may simply become the culture of the institution, both one's own local institution and the broader (legal) academy. We will reproduce careerism just as we reproduce hierarchy. 

Combining the two strands of this post, I would offer the following advice. 1) By all means remember that if you want tenure, you have a deadline and a set of requirements to meet by that deadline. Don't let it creep up on you and surprise you, and don't get so distracted by other things that you fail to do what is needed. 2) By all means remember that you are just starting out and don't know everything: not only about your field, but about your colleagues, your institution, and what it means to be a good or great academic. By all means don't hold your tongue at every faculty meeting, including on issues that matter a great deal to you, simply for reasons of self-preservation. Once you are a faculty member you are a part of the governance of your institution and have a right and sometimes obligation to speak. But remember that there are sometimes good reasons to be cautious in speaking: namely, that you may not know as much as you think you do about the issue, its history, or what your colleagues have already done. 3) Those two considerations aside, think of your work as a calling, think about what kind of academic you want to be, what academic values entail, and what kind of world you would want both untenured and post-tenure faculty to occupy--and act accordingly. Deadline and humility issues aside, do nothing before tenure that you believe you would find objectionable after tenure. Your views may change over time. But you will be getting an early start at cultivating the kinds of habits and values that will serve you, your home institution, and the legal academy as a broader institution well. 4) When the time comes to give advice and support to untenured colleagues, by all means offer prudential advice. But make sure the junior colleague knows that it is only prudential advice, that it's only instrumental, and that there are other kinds of advice they need as well. Offer and model deeper values and the concept of a calling, and encourage your junior colleagues to be their best and not just their most calculating selves as academics--and be sure to support them if and when they do so, rather than punishing them for not following regnant careerist conventions.

If you find that you are not doing so--that you are acting differently before tenure than you would want to after tenure, that you are acting as a careerist now while promising yourself that you will be "liberated" to pursue legal academia as a "calling" later, or what have you--then there are several possible conclusions you might consider. I say this with all due consciousness that we are all human and imperfect, that this includes tenured and senior colleagues as well as untenured colleagues, that it's understandable to want to keep one's job and achieve goals like tenure and advancement, and so on. One possibility is that your colleagues are failing in their duty: they are failing to treat the academic life as a calling and act according to its values. If it is really the case that they expect you to behave differently before tenure, and not for reasons of timing or humility, then your institution has a problem and its members need to think seriously about their values and conduct and about whether they are in the right place. Another is that you are making undue assumptions about your colleagues. You may assume that they all expect you to act in a particular way, and in doing so be giving them too little credit. Don't assume the worst of them right off the bat--even if it is true for some of them, and even if a senior colleague, perhaps one of those who imbibed certain "prudent" habits early on and forgot to let go of them after tenure, and who assumes the same is true of everyone else, tells you, with what might be undue confidence and certitude, that everyone and everything is political and you should act accordingly. 3) Although this seems harsh, it's not meant to be. It may be that it's you, not your colleagues, who needs to rethink things--including whether you really have a calling as an academic. It's surely better to think about that relatively early (although one hopes that one would think about it long and hard before ever taking the job or going down that road, and then commit to the right values once one has committed to that path) than too late--not just for yourself and your own happiness, but for the sake of the effect you will have on your own institution and on legal academia more generally as you become a senior colleague. 

* I have used the term "untenured" rather than "pre-tenured" throughout. I don't know when "pre-tenured" became the norm. Certainly there are times when one might need to distinguish descriptively between different professional lines or offices within the academy, the most prominent being tenure-track versus non-tenure-track. But when one is clearly talking about people on the tenure track, "untenured" seems a better word than "pre-tenured." There is no normative implication to "untenured," no insult or lack of dignity; it's a pretty simple descriptive term and, on the whole, a neutral one. "Pre-tenured," on the other hand, is technically accurate but seems to be designed with some vaguely therapeutic or validating purpose in mind, and to carry the loaded assumption that everyone who is untenured ought to be tenured. Except in cases where it serves some precise delineating or defining purpose, I'm not sure what justifiable linguistic purpose is served by the widespread adoption of the term "pre-tenured."     

 

Posted by Paul Horwitz on January 22, 2019 at 10:22 AM in Paul Horwitz | Permalink

Comments

I take your point on "un" versus "pre." Both, however, are superior to "junior."

Posted by: Jeff Lipshaw | Jan 26, 2019 11:27:16 AM

Getting tenure is like losing your virginity. It matters a lot more before it happens.

Posted by: AJ | Jan 24, 2019 10:25:13 PM

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