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March 04, 2009


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Why aren't our LRW colleagues on the tenure track?

Most schools with full and equivalent tenure for all LRW profs are not public law schools with a main campus to contend with. My question to anyone who is in that category who has converted an entire group of profs to tenure track is, how did you do it? How, as a state institution, did you get approval for multiple tenure-track lines and their significantly higher cost?

I look forward to any responses.

Nancy Soonpaa
Texas Tech University School of Law


I start from a different place -- namely, that tenure is an extraordinary institution that should be extended only when institutional precedent or compelling functional reasons demand it. None of the advantages you recite provide an explanation as to why tenure is necessary for LRW faculty to perform their function, but instead sound in labor market considerations or the like. In those terms, there are some advantages: removing stigma is an advantage, though I suppose there will always be such divisions (see, e.g., adjuncts and staff); the ability to attract good applicants is also a plus, though the point about qualifications relative to doctrinal candidates seems both atypical and misplaced (each should, in theory, be demonstrating potential along different axes, and reducing it to origin of degrees may suggest that neither recruitment effort is being well served); I would assume tenuring would improve stability (perhaps overmuch). There are also decided tradeoffs in terms of cost and the capacity to replace staff; query whether you would be able to hire the superbly credentialed applicants you are now seeing if you had adopted a tenure-track scheme in LRW twenty years ago.

The scholarly production point comes closer to getting at the heart of the matter. I have no doubt that many LRW faculty can and will publish in law reviews; frankly, there's room enough at the inn for everyone. Why does this need to be encouraged, and how does tenuring do that? The legal academy presently wrestles with how to reconcile its emphasis on publishing scholarship with what is in significant part a form of vocational education; perhaps it is the case that because scholarship about constitutional law is intimately related to performance in the classroom, and because tenure helps in the performance of scholarly (and other) functions, tenure is necessary in that discipline. Is it really the case that law schools need to generate academic literature on subjects relating to legal writing? If LRW faculty write outside that particular field, is encouraging such dilettantism (to an even greater degree than at present among the tenured faculty) appropriate? Personally, I would favor a system designed to hire and maintain the best writing instructors available, regardless of whether they ever wrote in a law review; this may well mean giving someone a very long term or tenure-class contract, but not awarded on criteria that are anything like a doctrinal subject tenure case.

To a degree, I look at this like someone responsible for CBAs at a beauty school: perhaps we needed to make it nearly impossible to fire barbers, perhaps not, but I don't see why that means we have to do so for nails. But in addition, I don't have confidence that we want or need to encourage to this degree additional scholarship in the areas in which LRW folks are expert -- or, as my ignorance probably suggests, that non-LRW folks have any capacity to evaluate it -- and without that, the argument boils down to a claim that the labor market demands it.

P.S. The point about dealing with other branches of the university is potentially important. Law schools are already singular in many regards with respect to rates of tenuring and the sufficiency of student-run journals. With the proportion of tenured faculty already being challenged, how is expanding the ranks of the tenured at law schools going to fare?

Kathy Bergin

"perhaps it is the case that because scholarship about constitutional law is intimately related to performance in the classroom, and because tenure helps in the performance of scholarly (and other) functions, tenure is necessary in that discipline."

As a Con Law prof, I try to bring bits of my research and writing into the classroom, but I can only take it so far. First year students simply don't have the doctrinal background that is necessary to fully understand and critique most of what law profs write as scholarship. Nor should they be expected to.

That said, most of what I do that is "related to performance in the classroom" is borrowed from my LRW friends and colleagues, and their collective writings on pedagogy and teaching strategies. (hat tip to Millennial Law Prof Tracy Mcgaugh). I am better in the classroom not only because I know something about Con Law, but because the LRW folks have taught me how to teach.


Professor Bergin,

Thanks for the reply. I'm not sure that first year courses are the acid test -- then again, my point wasn't that the case for tenure among the doctrinal faculty was ironclad. The question remains, why extend it, rather than (potentially) contracting it? I can see the Fishian arguments as to its function for at least some segment of academically active law professoriate, and for clinical faculty engaged in client representation, but it's still not clear to me what the warrant is for LRW.

I'm a little surprised by what you say about the influence of LRW faculty on your classroom performance, but I'm sure experiences vary. My sense, based on my own conversations with my LRW colleagues, is that we confront very different classrooms and pedagogical objectives. It *has* been my sense, though, that the average LRW instructor is more prone to write about teaching methods and instruction -- that is, that the proportion of con law folks writing about con law instruction is much lower than the proportion of LRW folks writing about LRW instruction. If true, I think that helps explain why the scholarly enterprise of LRW folks is different in character than for doctrinalists, which I think Professor Zinnecker was generally downplaying. In any case, this is the nub of the question: is writing about teaching writing what LRW professors are trained for (generally having received JDs but not, say, PhDs in education), why they are hired, and why they should be given tenure?

To be clear, I am not downplaying the significance of legal writing instruction, or the need to create positions that attract sufficient talent. What I don't get is why that translates into tenuring, or why scholarly output of the kind normally privileged in tenuring should be assessed, as opposed to evaluating people based solely on classroom achievements. My sense is that students benefit from people who are passionate about writing with a rich background in legal practice, and somewhat less from people who write about teaching about writing. To be sure, the same may be said about doctrinal folks, but is the exceptional tenure file in that area that is predicated on scholarship about education.

Kimberly Phillips

I will venture to say that we would not be having this conversation if most LRW faculty were men instead of women; I believe this is an important factor (but certainly not the only factor) in LRW faculty status and salary discussions that we must acknowledge and address.

As to LRW courses constituting a law school student's "vocational education," my experience is that first-year law students, along with practical skills, learn as much about "thinking like a lawyer" and analyzing substantive law in LRW classes as in doctrinal classes.

Mr. Ani also makes a strong over-generalization to say that "students benefit from people who are passionate about writing with a rich background in legal practice, and somewhat less from people who write about teaching about writing." Just as successful doctrinal professors come from different backgrounds and have different passions (i.e., some doctrinal professors are more passionate about teaching than scholarship - but still make wonderful professors - and vice versa), so do successful LRW professors.

Finally, in my view, this issue has nothing to do with what I believe is an elitist viewpoint of what tenure is and is not, but is a discussion of fundamental fairness. Many LRW faculty write, perform service, teach, and do all the other normal faculty functions (serve on/ chair committees, etc.). Even if a law school decided that their LRW professors should not be "distracted" by scholarship, LRW professors work as hard and have as much influence on a law student's success as any other faculty member (I tire of hearing that LRW is "the most important class in law school"; while the compliment is nice, the mere "lip service" is very frustrating and demoralizing). Accordingly, LRW faculty deserve the same status, job security, and salary as "the regular faculty."


Professor Phillips,

Some concessions . . . Perhaps you are right that this conversation is gendered, though how much depends in part on whether the other differences mentioned are serious. And you certainly put your finger on a critical assertion -- that students get relatively less value from LRW efforts at scholarship than from efforts devoted more directly to the classroom (recognizing that scholarship can benefit the classroom, but also that there are often tradeoffs involved in emphasizing scholarly talents in promotion -- which is just as true for doctrinal work). You put the issue as one of fundamental fairness, and I also take that point to a certain extent. Finally, there is at bottom some assumption I am making about the relatively quality and degree of difficulty in scholarship, which you are probably too kind to call me on -- though I would defend that judgment.

I guess I would only ask that in return you consider what may be sacrificed by tenure, and to be appropriately skeptical about what is being attained. There is a lot of angst about going up for tenure in law schools, but the reality is that the bar is incredibly low; the criteria applied demand very little of by way of a proof that the tenured professor will be delivering terrific value to students for years to come, and no showing whatsoever that tenure is necessary to secure that value (indeed, despite the fact that in most cases there is good reason to think that tenure on balance reduces that kind of security). If the answer to an inquiring student as to why tenure is necessary is "Because we deserve it just as much as they do," I don't think that's sufficient, and I don't think that's an especially elitist point of view.

BTW, if we were really rewarding people on the basis of real-time effort and influence, we would remove perks from many senior faculty and award them to adjuncts or would-be hires waiting outside the gates -- but for the fact that we cannot easily do so due to the institution of tenure. And I suspect that if influence on student success were really the touchstone, tenure would be conferred most readily on the admissions office and career placement.

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