When It Comes To Law Faculty, We’re All Post-Modernists (Or, My Tenure Is For Sale: Part III)

A few days ago, I argued that, even assuming that the costs of the tenure system outweighed any benefits, law schools would derive few benefits from abolishing tenure. Most schools show little willingness to implement less extreme measures designed to shame, intimidate, or otherwise induce faculty to perform consistently with valued institutional goals, so why should we expect them to take the even more drastic measure of firing someone they’ve worked with for many years, even when legally entitled to do so?  Isn’t it more realistic, I argue, to ask law schools to take the intermediate steps of (1) defining coherent institutional goals, and (2) coming to some consensus on when faculty are meeting those goals?  I believe that the first of these tasks is much harder than the second, because it requires a disparate (and, sometimes, disagreeable) group to come to some concurrence about who we are and what we value as a unit.  

This task may be even more difficult at law schools than within other academic departments for a variety of reasons (although, maybe not. If you want to feel good about the functionality of your own department, read this hilarious thread at Historiann on nightmare interviews – the comments are priceless).  But the traditional lack of peer-reviewed publishing by law faculty (which is increasingly changing), the high rate of tenure at law schools, the fact that we are a professional school, and a variety of other factors may mean that law schools face special difficulty in defining and meeting institutional goals.  Brian Leiter best summarizes some of these challenges in this now-dated but, I think, largely still-accurate description.

Let me briefly run through the typical objections to the suggestion that law schools should do more to tailor incentives to institutional goals and illustrate why they are off-base.

(1)   (1)  “But the quality of what we do is subjective.”  Yes.  But it’s not supposed to be standardless.  Every law school I know endeavors at both the hiring and tenure stage to make some assessment of a candidate’s scholarship and teaching quality.  The rigor and methods by which this are done vary significantly across institutions (with estimating the quality of even a seasoned scholar and teacher solely on the basis of a one-hour job talk of a paper no one has read constituting one end of the spectrum), but I haven’t seen any schools openly abandon that mission because it’s too hard or subjective.  It makes no sense to raise this objection only with respect to our existing ranks.

(2)   (2)  “You’ll just wind up counting [insert: articles, downloads, student numbers, here].”  Sometimes this is not such a bad idea.  Most of us have intuitions or biases about how hard or how well others are or are not working based on pretty sketchy information, often formed after initial impressions, that turn out to be off-base over the long term.  Updating them with new information is not an entirely bad idea.  Having said that, there is always a danger of “managing the numbers,” especially if we convince ourselves that quality is not discernable, or if we’re simply too lazy to make more detailed and time consuming assessments.  But I think that at a well-run school, there will be sufficient pushback (especially from those with more time-intensive fields or projects – i.e. a big book project, archival legal history, experimental work, or the compilation of original data sets that may take years to complete) to prevent the simple counting tendency from completely taking hold.

(3)   (3)  “But we don’t have good means of assessing these qualities.”  No, we don’t.  And we need to work on that.  As noted, the traditional lack of peer reviewed publishing (which I don’t mean to romanticize either – it has its own problems) means that law schools may need to work harder to come up with other mechanisms of scholarly quality assessment.  And as to teaching, I suspect that many of our B-school colleagues would gladly rant at length about the consumer-driven culture there that has turned teaching assessment into a popularity contest based on teaching evaluations that often reflect likability, rather than teaching skill.  (More on this in my next, and last, post in this series).  But the right answer can’t be to simply give up.

(4)   (4)  “Such assessments would disadvantage women and minorities.” In the wrong hands, yes they could.  Much has been made in the blogosphere lately of the underrepresentation of women in various measures of impact, including downloads and citations.  And hats off to Ann Bartow, Bridget Crawford and the other Feminist Law Professors for their on-going “Where Are The Women?” series. Moreover, it has been argued that women and minorities may bear a disproportionate service burden, which is unlikely to be rewarded to the same degree as the other parts of the academic “trilogy” (i.e. scholarship and teaching). Again, however, I don’t think that the answer is simply to throw up our hands in defeat, but to work at creating better mechanisms for evaluating each other.  Moreover, I’m probably biased on this point, but I think that some systematic evaluation may reveal women and minorities to be more, rather than less, productive than our institutions assume, if only because so many of us may be working in fields that are relatively unfamiliar to relevant decision-makers at the school.

In my last post in this installment, “We All Contribute In Our Own Ways” Is Not A Valid Institutional Goal, I’ll add some final ruminations on law schools as institutions with cultures, incentive structures, and habits that are amenable to manipulation in furtherance of a coherent academic agenda.

Related Posts:

I.               My Tenure’s For Sale. How About Yours?

II.             Incentives And Institutions: Why Stop With The Banks?

IV.            "We All Contribute In Our Own Ways" Is Not A Valid Institutional Goal

Comments

[In the Shadow of the Valle of Counting]

So what metrics would you use? And do you have similar concerns about how we evaluate students?

[LLL]

On the more general topic addressed in your original post on tenure: It is important that tenure protects not only those writing politically controversial scholarship, but also against being fired when, for example, a dean is enraged that someone has shared with a site inspection team the fact that seven professors would be leaving the faculty that year (when the dean has chosen not to share that information with the team), and is furious that someone shared with the site inspection team a copy of an article that had appeared in the Journal of Legal Education. When the dean then expresses great anger over this in a faculty meeting and declares that he will find out who did it and that the person or people will soon be out looking for work elsewhere, it helps to be protected by tenure. Especially when so many people in the room have no idea who did this but are targets nonetheless.

[Kim Krawiec]

Shadow -- part of my final post in this series is dedicated to your first question, so I won't spend much time on it here. My goal is to be concise, rather than coy, though. So if you don't find it sufficiently addressed in the last installment feel free to prompt me again in those comments. I will say, though, that I think this focuses on the wrong half of the equation. We perceive "the metrics" to be the hurdle to this type of evaluation, only because we fail to first develop a coherent institutional mission (which requires making uncomfortable choices and value-judgments about what type of activity will be encouraged and rewarded). Once those choices are made, the range of appropriate metrics becomes more apparent, although there may still be disagreements at the margins.

As to our students, I suspect we’re all in agreement that we could do a better job of evaluating them than we currently do. But at least we make some attempt at evaluation (and ordinal ranking at most schools) twice a year, which is far more than we typically do with each other.

LLL – excellent story. I’d certainly love to hear more about that one. Sounds like your school is one of those where the danger of being fired for using the aloe-enhanced Kleenex, as opposed to the anti-bacterial one, is greater than the risk of being fired for not publishing anything for a decade. I feel your pain. As I’ve noted before, I’m not sure that I’m persuaded by the frequently-invoked yet rarely-supported claim that tenure is vital for protecting politically controversial speech for most law professors (the other arguments in favor of tenure are to me stronger). Again, happy to hear more evidence on this point, though.

[Mike Madison]

Is the game worth the candle? What you characterize as objections to implementing incentives strike me (and resonate in my experience) as objections to the very difficult, prior process of realizing public consensus on coherent institutional goals. The fact that those objections bleed backward from designing implementation to identifying strategic goals underlines just how difficult that first phase is. It's possible for a strong-willed dean to force a faculty to accept incentives of a certain sort, but will they work to produce a set of desired outcomes? Or breed resentment, resistance, and cost-generating conflict?

I have no answers, only the growing, nagging suspicion that the best way to motivate a team to perform better is to have the right leader -- and then to put the right players on the field. [That last phrase is linked to this post -- http://www.concurringopinions.com/archives/2009/05/the-law-school-faculty-as-a-commons.html -- in case the comments don't take HTML.]

[Kim Krawiec]

Hi Mike – thanks for joining in, and thanks for the link. I very much enjoyed your Co-Op post. I think that you and I are quite in agreement on the causes of the problem: objections to the subjective nature of academic quality assessment are more easily resolved than (and are usually a smokescreen obscuring) the more serious problem of defining who it is that we want to be as an institution. But I do think that the game is worth the candle. In fact, it is vital to any institution’s long-term health to undertake that task, although I can certainly understand why it wouldn’t be worth your candle (or any other individual’s) to take on as research dean. But these disagreements, if left unresolved, tend to eventually become deeply repressed and then emerge elsewhere over time in a very unhealthy manner, harming innocent by-standers (like unsuspecting job candidates). It’s always been my belief that this is part of the reason that a faculty will spend three hours arguing over whether to eliminate minus grades and then hire someone for lifetime employment with no discussion at all. I hope to post on these issues more in my last post in this series. Hope you’ll join in again.