Sunday, April 28, 2013
Does Tenure Skew Law Professors' Publishing Incentives?
If you want to be a law professor, you have to publish. That's the oft repeated advice of those in legal academy and the harsh truth for those looking to break in. Publish early and publish often.
This fact is reflected by rankings of law professors which focus on instructors' "scholarly impact," or the frequency and citation value of law review articles and books. Brain Leiter maintains a ranking of law schools by scholarly impact which approximates the USNews ranking of law schools generally. Leiter also ranks law professors individually and by specialty. Last year, Above The Law ranked the top 50 law professors by, you guessed it, publishing.
Other measures of law professors are available. For example, faculty could be ranked by student evaluations, peer assessment, or by employers for how well they prepare future lawyers. But for a variety of reasons, legal scholarship is the measure of a good law professor.
Schools incent professors to publish early in their careers using the all-important carrot of academic tenure. Tenure describes an academic's contractual right not to have his or her position terminated without just cause. It is awarded to faculty members who have demonstrated writing prowess through a strong publishing record. In fact, professors with poor student or peer evaluations may be tenured on the basis of their scholarship alone.
But what happens after a professor is granted tenure? Do academics still have an incentive to keep writing after a law school has spent its carrot?
Certainly, there are many tenured professors who continue to publish frequently throughout their careers. But not all professors are so diligent.
Barbara Holden-Smith is a Professor of Law at Cornell Law School where she has taught since 1990. It is not apparent from the Cornell Law faculty directory when Professor Holden-Smith received tenure (Professor Holden-Smith is the only active professor in the directory who does not post her CV on the law school website). However, the American Association of University Professors recommends a probationary period of seven years before tenure is granted and this time period is the norm at Cornell and most other academic institutions.
Thus, we assume that Professor Holden-Smith was given tenure around 1997. Now look at her publishing record as described by Cornell. She published in the Cornell Law Review in 1993 (cited 18 times) and the Yale Journal of Law and Feminism in 1996 (cited 41 times). She also wrote a book review in the Journal of Criminal Law and Criminology in 1996 (cited 6 times).
I am unable to locate any law review article or book published by Professor Holden-Smith after 1996. Her articles have been republished as chapters in books, but she has no original scholarship in over seventeen years.
Clearly something went wrong. Faculty publishing is important for a school's ranking and to help keep professors engaged with changes in the legal profession. When a tenured doctrinal professor at a school with a small faculty does not publish, the other professors have to pull the weight.
What accounts for this drought? Without the tenure carrot to encourage Professor Holden-Smith to keep writing, she stopped. She received her life appointment and then stopped working—because teaching a few lectures per week can hardly be called a full time job.
It's clear that, at least in the case of Professor Holden-Smith, and probably for other professors at major law schools as well, tenure is a shield against the demands that more junior faculty members must satisfy and that senior professors generally do meet and exceed.
How can a Dean encourage a tenured, unproductive professor to publish? Without any meaningful pecuniary threat, any effort to exhort or cajole productivity is purely hortatory. Lazy professors are free to ignore requests for more writing from the administration because they are tenured.
The administration can give unproductive professors undesirable class times such as an 8:00 a.m. lecture or delegate unwanted administrative tasks. In fact, Professor Holden-Smith does hold a title of "Vice Dean" which probably includes many of the bureaucratic obligations that productive professors refused.
But even that is not working to induce publishing.
The next step is public embarrassment. Maybe her students and peers can embarrass her into doing her job. Students could post signs on the school's bulletin boards asking Professor Holden-Smith to publish or send her emails asking about her most recent scholarship.
The school has given up its best incentive to promote productivity. Perhaps the real puzzle is how do you take pride in your work if you're not working?