Moving LRW Colleagues To The Tenure Track

I joined the STCL faculty in 1994.  I’m approaching 50, so my mind isn’t what it used to be.  But as I recall, our faculty was asked to consider, every two or three years, whether we should move our LRW colleagues off of a contract term of employment and onto the tenure track.  About five years ago, we did make the move.  Now the tracks for both LRW and doctrinal colleagues are the same.  The scholarship requirements for both LRW and doctrinal colleagues are the same.  The service expectations for both LRW and doctrinal colleagues are the same.  Rights and privileges with respect to matters of faculty governance for both LRW and doctrinal colleagues are the same.  Opportunities to teach in our foreign summer programs for both LRW and doctrinal colleagues are the same.  The only noticeable (to me, anyway) difference is that LRW colleagues have significantly less flexibility in what courses they teach, being expected to teach LRW I or II every spring and fall semester (with the opportunity to teach a doctrinal course only in the summer).

I’m convinced that we made the right decision, and I’m puzzled why we remain one of the very few law schools (less than twenty?) to do so.  The switch yields many benefits.  First, it removes the stigma that those who teach LRW are somehow “second class” colleagues, a stigma that promotes an “us” versus “them” perspective and significantly undermines any faculty-wide spirit of collegiality.  Second, the tenure track allows schools to draw from a deeper and richer pool of applicants than does the enticement of any short- or long-term renewable contract.  Some of my LRW colleagues received a JD or LLM degree from Boston University, Columbia, Duke, Harvard, Texas, and Virginia.  And we have seen LRW applicants with credentials that were equal to, if not better than, those of some doctrinal candidates we have interviewed.  Third, there is (or if hiring decisions are rigorous and the mentoring process is thorough, there should be) less turnover and more stability when LRW colleagues are on a tenure track.  And fourth, it offers another source of scholarly production (traditionally not required of contract hires).  For example, our LRW colleagues, since moving to the tenure track, have placed articles with the following journals (alphabetical):

                Alabama Law Review
                Arizona State Law Journal
                Baylor Law Review (twice)
                Berkeley Journal of Criminal Law
                Catholic University Law Review
                Florida State University Law Review
                Fordham International Law Journal
                Georgetown Journal of Legal Ethics
                Hamline Law Review
                Journal of Criminal Law and Criminology
                Lewis & Clark Law Review
                Maryland Law Review
                Mississippi College Law Review
                Nebraska Law Review
                New Mexico Law Review
                Penn State Law Review
                Richmond Journal of Global Law and Business (reprint)
                St. Mary’s Law Journal (three)
                Willamette Law Review

So what might the negatives of such a move be?  It’s hard for me to find a reason that I find persuasive.  But let me anticipate and respond to three (below the fold).

First, placing LRW professors on tenure track increases costs.  Perhaps there is some truth in this proposition if a salary for a tenured candidate will always exceed that of a contract hire, regardless of the number of years of service.  I imagine, though, that the prophecy is self-fulfilling to a great extent because contract hires see no long-term security and, as a result, stay few years at any one place.  True, a tenured colleague may be paid more than a contract colleague, but at least part of that difference is attributable to the scholarship requirements associated with tenure track that are not placed on contract colleagues.  One would think that schools would be happy to raise salaries in return for increased scholarly production.

Second, LRW colleagues don’t do what doctrinal colleagues do; the former teach “how,” but the latter teach “how to think.”  Again, I’m unconvinced.  This argument, to a great extent, rests on the fallacy that LRW colleagues teach only Bluebook citation rules, hold spelling bees and grammar contests every Friday, and give “floor of the month” library tours every now and then.  LRW professors trade in the same currency as do doctrinal colleagues – legal analysis – and they carry out Professor Kingsfield’s mandate to teach students to “think like a lawyer” with the same fervor and emphasis as do their doctrinal colleagues.   Whether the course is doctrinal or skills-based, our shared goal is to make the student a better lawyer, a superior advocate, a more effective attorney.  The talents necessary to carry out one’s duties to clients and the profession are not limited to those taught solely within the confines of a doctrinal classroom.  Students may leave my class after fourteen weeks reeking with UCC brilliance.  I’m not sure, though, how that knowledge translates into anything positive, absent the foundation laid by my LRW colleagues in proper research, writing, analytical, and advocacy skills.  Cf. I Corinthians 13:1-3 (NIV) (“If I speak in the tongues of men and of angels, but have not love, I am only a resounding gong or a clanging cymbal.  If I have the gift of prophecy and can fathom all mysteries and all knowledge, and if I have a faith that can move mountains, but have not love, I am nothing.  If I give all I possess to the poor and surrender my body to the flames, but have not love, I gain nothing.”)

Third, teaching LRW leads to burnout, and tenure only postpones the burnout but precludes easy termination.  Again, I’m skeptical.  I’m not sure that LRW leads to burnout any more than does teaching the same doctrinal courses again and again.  In fact, I venture to guess that it may be just the opposite.  Doctrinal professors change casebooks every three to five years, so unless the law changes, the cases and the problems and the legal issues remain constant for several consecutive semesters.  In an LRW class, though, the professors are researching, crafting, and devising new problems every semester – built around doctrinal issues.  Also, in many doctrinal classes, the professor has no interaction with a student outside the classroom and awards a letter grade solely on a final exam, never to see the student again.  In an LRW class, though, teacher and student meet frequently to review work, to chart progress, to build a dynamic learning experience.  A path to burnout?  Nonsense.  And even if some burnout might exist, a more appropriate remedy might be to offer a generous sabbatical policy (everyone at STCL is eligible to apply for a sabbatical every five years, so the first sabbatical often is taken before tenure).  Or maybe schools should more rigorously review post-tenure performance (of all colleagues).  But to deny LRW colleagues the option of a tenure-track slot over burnout concerns just isn’t the answer.

So why aren’t your LRW colleagues on the tenure track?

Comments

[legalwriting]

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

[Ani]

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.

[Ani]

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."

[Ani]

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.