Tenure Track Hiring: Risks versus Rewards

Just for clairification, by a CV that is "not so obviously glowing" do you mean one that lacks publications, or one that's not from a top-10 (or so) school, or doesn't have a fancy clerkship, or some combination? I ask because it seems to me that these things represent risks in different ways, and since, it seems, having published in the past is the best indication of likelihood to publish in the future, and if publishing is what gets one tenure, then a CV with someone from a school outside of the normal group but with several good publications should be a stronger candidate than someone with a top school/clerkship but no publications. Without knowing more about what you have in mind it's hard for me to know what to think about the case. But also, it surely wouldn't hurt law schools to put _some_ real tenure standards in place.

Thanks for your comments, Matt. Completely agree with the need for some better tenure standards in place!
We've talked a lot about what makes a good entry level CV on our committee over the years. My own personal leaning is the same as yours ie I do think that solid publishing in the past is generally the best education of likelihood of doing good scholarship in the future. I know some of my colleagues put more weight on things like clerkships, what school the candidate graduated from, where they were ranked in the class, were they on law review etc? And I do think those things are perhaps good indications of scholarly aptitude, but I like to see some record of at least halfway decent scholarship as an indicator of a strong candidate.

I'm curious about schools that do hiring like you've indicated, i.e., where tenure is far from assured. From everything I know, tenure is close to an assured thing everywhere (in part because there are high threshold requirements imposed nearly everywhere). At what (types of) schools is tenure not an assured thing?

Also, I'd raise the same question as Matt: can you clarify the type of candidate you would consider "a risk?"

It may be that I've oversimplified the case in my original comment. Maybe there are gradations of "likelihood of tenure" from school to school rather than a binary choice between "hiring effectively equals tenure" and "hiring doesn't assure tenure". Or maybe the candidate pool is now so strong that pretty much anyone hired should be tenurable at the school that hired them. I can't name specific schools where hiring does not indicate strong likelihood of tenure because I just developed this impression from talking to random faculty at other schools. I've been at the same school all these years so have never been privvy to faculty meetings on hiring at any other schools (other than overseas schools where the hiring process works differently). So my impressions may be incorrect.

So what would I consider a risky candidate? Probably someone who hasn't published/written anything, but has interesting ideas – just query whether those ideas will get put down on paper in a publishable form. Also, perhaps, candidates who have published before, but not for a long time (because they've been doing something else in the interim) – or candidates who have published well, but in different fields (at least for a school that requires "traditional legal scholarship" – however you might define that – for tenure). Perhaps also candidates who have written a lot, but have predominantly co-authored and it's not immediately clear how much work they have done on their own and what aptitude they might have for writing on their own during the tenure process. Other potentially risky candidates might be people with great editing experience (either in clerkships or on law review), but again unclear whether they can write well on their own. These are just off the top off my head, though, and they're my own personal reflections. I'm sure others would have different thoughts.

I think Leiter has done 2-3 posts within the last decade that explain why tenure at most law schools is close to an assured thing. Though the post below, for example, was written in 2003, I suspect this trend has only been reinforced by what everyone indicates is a more competitive marketplace (when it comes to entry level hiring).
http://leiterreports.typepad.com/blog/2004/06/why_is_it_so_ea.html

I suspect the more moderate claim of "gradations of 'likelihood of tenure'" is what we're talking about and that these gradations are small to begin with.

Regarding the types of risky candidates, it is unclear to me why – with there being far more candidates than can possibly be hired who have done significant, non-coauthored publishing subsequent to law school – a school would want to "take a chance" and hire someone who hasn't written anything, or hasn't written anything recently, or hasn't written anything in law, or has only co-authored, or has only "great editing experience."

Matt, Jacqueline, what do you mean by "real" tenure standards? 2-3 articles ain't enough for you? What about 4? Since a crazy junior faculty is ideal, how about 5-7? Or maybe a book or two? Or do you mean we should start paying attention to teaching? Or require young profs to completely neglect teaching, viewing it as a waste of time, like most law schools and the rest of the academy?

This loose talk, this constant casual grumbling by senior faculty about the need for "real" tenure standards strikes me as pretty cruel to junior faculty. And pretty unnecessary too. If you're unhappy with current tenure standards, is it because you want to be the last person up the ladder, before it is cut off beneath you? Or better yet, is it because you're dissatisfied with your tenured colleagues, and think that most of them don't deserve to be there? I think you owe us more of an explanation and demonstration of just how rampant a problem this is. So, would you please list the names of faculty who met the applicable standards but shouldn't have gotten tenure because they didn't meet your ideal requirements. We can then debate their merits. And once we determine whether they truly belong in the academy, we can start talking about what the tenure standards should be. (I'll start: beloved Abe Chayes clearly skated by on lax tenure standards, given that he refused to write a "tenure piece"! And what a shame that would have been.)

Or maybe — here's a modest proposal for you — we should just get rid of tenure. That way, people would not be allowed to coast once they cross the threshold, and as an added bonus, they wouldn't have to suck up so much (sorry, I meant to write "show so much deference to their smarter and wiser senior colleagues") on the way up the ladder.

With respect to FRC 09's comments, I think the main reason a school might look at a "riskier" candidate is for curricular fit. In some areas, there are not that many candidates – a lot of the corporate/commercial areas for example where people (at least until recently) could earn a lot more in practice and might prefer that kind of career. So I'm not considering all candidates as being fungible. Other issues go into a decision to look a particular candidate outside "best athlete" type credentials (although I do take your point more generally).

With respect to "Hazed Junior", I'm not talking about real tenure standards with respect to quantity, but rather with respect to quality of scholarship. So I think I'm actually on your side here. What is "unreal" or "vague" about a lot of current tenure standards is that they don't give much idea of what type of contribution a piece has to make to the literature in order to "count" towards tenure. So someone might write three (or four or five) articles or a book under many current systems and have the P&T committee say it doesn't think they should count towards tenure because they're not the write kind/quality of scholarship, whereas someone might write two or three articles that the committee/faculty thinks are of an "exceptional" standard and would ground a tenure vote. So I think it would be nice if we could have a clearer idea of what kinds of contributions we're looking for our junior faculty to make in the 2 or 3 pieces we ask them to write, not that I think they should have to write more pieces.

Also, I do like the idea of getting rid of tenure. I think people who are really productive wouldn't be too concerned about this and people who are not productive should be worried anyway. I know that others would object to this because tenure is supposed to protect those who express unpopular political viewpoints. I don't have a great answer to this charge, other than that at least at my school I can't imagine anyone not getting their contract renewed (ie if we didn't have tenure) because of the contents of something they wrote in terms of political or religious slant etc. But I know that answer won't satisfy a lot of people and I'm only talking about my experience of one school in the United States.

Hazed Junior – I am also a junior faculty member, so I will not sign my name to this, but I don't think it can seriously be claimed that law schools have tenure standards that are anywhere near those in other academic fields. In any other field, getting tenure on 2-3 articles would be impossible–ludicrous, really. The tenure clock is much longer in other fields, much more writing is required, and tenure is regularly denied. I would guess that in most law schools, hiring is very, very close to tenuring. And frankly, I find it bizarre that people get permanent job security for writing just two articles–maybe 75 law review pages–over four or five years.

My concern with the entry-level market is that now, to even be considered a viable candidate by many hiring committees, you have to have at least two post-note publications – and preferably three. I found it more than a little ironic when I was on the market to be told by members of the faculty appointments committee that I needed to have more publications than they did at the time they were hired (and I'm talking about people hired 5 years ago, not 25 years ago) in order for them to consider me a "serious scholar."

Jacqueline,

Interesting post and comments. I just wanted to add one comment about tenure, or more specifically about a potential reason for maintaining it.

While protection of unpopular political viewpoints and academic freedom are most often brought up as the reasons to maintain tenure systems, I think a more concrete reason to retain tenure systems is maintaing faculty governance as a possibility. Faculty governance is really what tenure is protecting. If you take away tenure, you take away faculty governance. The person or body of persons who make employment renewal decisions would govern (in reality if not on paper).

Perhaps you could create some sort of middle ground, where a basis for non-renewal would have to be established to justify the decision, but I really do think that it would still involve eroding away faculty governance. Any reduction in job security, including any amount of uncertainty coupled to high risk, reduces faculty governance.

It becomes a tradeoff. You have to weigh the potential benefits of getting rid of tenure (and perhaps the benefits of getting rid of faculty governance) against the benefits of maintaining faculty governance.

I'm not sure where I come down on these issues personally.

Hazed Junior- I don't have a well worked out theory of how tenure review should work in a law school, but in my other field (philosophy) the tenure process involves, at any school where research is taken seriously, sending the written work of an applicant to an outside body of reviewers who are experts in the applicant's field who then read all the work and write a long evaluation that includes comparisons to other people in the field and recommendations on tenure, as well as a review by a committee at the university and the department. One cannot just meet an objective requirement (X number of articles in top-X journals) but must have done work that experts in the field agree is good enough. Obviously, the standards vary a lot between institutions (it's harder to get tenure in the Penn philosophy department than at SUNY Albany, to use two schools I've gone to), but the general idea seems to me to be a good one if one wants real standards.

Unfortunately, tenure may soon become a concept from days gone by. Although http://www.nytimes.com/2010/01/03/education/edlife/03strategy-t.html seems to refer to positions in universities as a whole, law schools may not be far behind.

"I found it more than a little ironic when I was on the market to be told by members of the faculty appointments committee that I needed to have more publications than they did at the time they were hired (and I'm talking about people hired 5 years ago, not 25 years ago) in order for them to consider me a 'serious scholar.'"

I think that's a valid point–and there's another point to be made. The more you publish on your own, the more likely you risk not publishing in "top" law reviews or writing one "bad" article. Strangely, law review rank is considered by many to be a proxy for scholarship quality (why not just read the article and decide yourself?)–but the student gatekeepers rely, as empirical studies have shown, on factors that discriminate against non-profs. So, maybe you've published 3 Articles, but none are in "top-20" journals. The fact that you have published may actually hurt you because of placement.

Scott: Interesting point. It made me think back to when I worked on faculties in other countries where we had tenure, but not faculty governance ie the dean just made a lot of the decisions by himself/herself that faculties have to vote on here – including hiring and promotion decisions. There would generally be a committee vote, but the deans tended to sit on the committees and I don't think deans were constitutionally bound to follow committee advice. So that's at least one model where faculties work fine without the kind of faculty governance model we have in American law schools. Of course, that may not translate here, and faculties in the other countries I worked in were tenured anyway.

Re the point about prior publications hurting a candidate (Anon), when I am on an appointments committee I try to focus on the quality of the work published rather than where it was placed – although of course I notice Top 20 placements. (I can't help it – it's like a Pavlov's dog thing since I've been indoctrinated into the U.S. system over the past 10 years or so.) I'm aware of the issues you raise, as I'm sure a lot of other committee members are. Often entry level folks who have published in great journals have managed to do so because of contacts rather than quality of their work, while those who have not published in "top" journals could be doing better scholarship. My own personal view is that committees should look at the actual scholarship and not where it is placed, particularly on the entry level market.

First, this is not sour grapes – I got multiple interviews and an exciting job out of FRC at a great school that I'm going to love, so I'm not whining and moaning because my brilliance was not recognized.

That said, the law faculty hiring process is just plain stupid. And gutless. And based more on propping up existing faculty egos than on recruiting and developing talent.

Take the now universal screen for multiple prior publications. What does that really screen for? I'll tell you. It screens for having had a job that gives you time to write law review articles. Given the 500 plus journals out there, if you have a couple of years free and can't get something published somewhere, you must be unable to type, much less write. Lord knows, I've seen published "scholarship" from professors that wouldn't get a B in a seminar I was running. On the other hand, if for some reason you were unable to take a VAP or a fellowship, or didn't do a Ph.D., and stayed in practice, you are not in today's 2500 minimum billable hours world going to have time to bang out letters home, much less articles (or even, in some cases, access to the research tools you would need). So it all becomes very circular – the academy screens for prior publications, which pushes people to work as day laborers in VAP and fellowship positions so they can have time to do multiple publications, which in turn makes the publication bar that much more important. If for any reason can't do a VAP or fellowship, whether that be need to pay down loans or inability to move in pursuit of the job due to family issues, well, there are other careers that might prove satisfying.

Just as idiotic is the emphasis on which law school you attended. What does that really screen for? It screens for LSAT scores and undergraduate grades. You do well in college, get good LSATs, get into Yale or Harvard, and you are on track. Work two jobs getting through college, or maybe just party too much, or take time finding yourself, and go to a pretty good state law school that you proceed to dominate – it's not impossible, but it's very close, unless you somehow repair your resume. Does that really make any sense?

So why do faculty screen on publications and schools? Here's why. They don't know what makes a good professor. They have no idea what criteria to apply to get the right people – the great teachers, the creative scholars, the empowering colleagues – so they apply the criteria they can apply. Even within the limited scope of the FRC form, they can count publications and identify schools, and so they do what they can do, which, wonderfully enough, helps them to select people that remind them of themselves when they were younger.

The idiocy is only more pronounced when you look at schools outside of tier one. To get top talent, they would have to apply different criteria than the top fifty, because they will get only the picked over remains of the more desirable schools if they follow exactly the same strategy. No matter. It feels good, and like you belong to the club, if you apply the same criteria your betters in tier one apply. So what if the publications you require end up being pedestrian and "published" in online only law reviews? So what if the candidate's record at a top law school maybe suggests they were an admissions error? So what if the Ph.D. is from West Nowhere State in Supply Chain Management? No matter; the criteria are those of the tier one schools in the academy and so can't be wrong.

I don't see schools addressing this whacky system by moving to stricter tenure decisions. That would entail admitting that the hiring committee made a mistake, and that will happen only in the most unavoidable circumstances.

I actually agree with a lot of what Young Curmudgeon has to say, but I want to disagree with the comment about not being able to write while in practice. I wrote my first big article when I was a big firm associate billing serious hours. If it is a priority, it can be done, and I don't have much sympathy for people who don't write because they allegedly don't have the time.

I agree with Young Curmudgeon that the focus on faculty hiring outside the T1 is absurdly narrow and results in a large number of schools chasing the same few (elusive, for the vast majority) candidates. I also agree that a big part of the reason for this is ego-stroking on the part of the faculty. What I did not realize, however, until after spending a couple of years in the academy as a visitor is how this ambition is fed in a very tail-wagging-the-dog manner due to institutional obsession with the U.S. News rankings. I never would have believed it if I hadn't seen it with my own eyes – law school deans shamelessly referencing the importance of rankings (both of their own school and of others) in assessing the quality of faculty candidates, faculty scholarship, and things that can be done institutionally to "game" the rankings (i.e., hiring alums to prop up employment statistics and meddling with part-time programs so as not to take a hit in the USNWR rankings).

This focus on what I believe is the epitome of form over substance – how can we look better, without actually *being* better – is a huge a problem in the legal academy, and not just in terms of faculty hiring, promotion, and tenure. However, so long as this practice of law faculty buying into the alleged measures of quality dictated by a magazine in selecting both its faculty and its student body continues to be of paramount importance to the people in power, nothing will change and the FRC will continue to be an exercise in futility for a large number of otherwise well-qualified candidates.

Professor Barros:

We may be at a your mileage may vary point. When I was practicing, with a spouse in an 80 hour a week job with lots of travel, with small children, and with a value system where family comes ahead of any job, I wasn't going to be writing articles that I would sign my name to. If your life situation was similar, and you did write articles, you are just better than I.

As it happened, in the end I was able financially and geographically to take a non-tenure track position in a law school that gave me time. In my case, the FRC process screened me in, rather than out, because I had that luxury.

I think I'm going to be a great professor, but I think I would have been a great potential professor who never got hired but for what were essentially accidents of geography and personal finance given the filters now applied by hiring committees.

I hate to be an old curmudgeon myself, but bear in mind that there are lots of folks who'd be great at lots of jobs and for various reasons (family, opportunity, money, geography etc) never get to do them. If you look at it from the point of view of the institutions and what they are attempting to achieve – educating students, producing good research output etc – you could take the view that as long as the schools aren't hiring bad folks who are going to turn out to be bad professors, it's OK if some good folks get passed over. In fact, it's inevitable that some (probably many) good folks will get passed over. When I applied for my first teaching job in Australia, many years ago, I was convinced that I would be a great professor and that I was as good as anyone else out there. I ended up being first on the short list. The school made offers to three people and I was number 4. I ended up getting the job because one of the three turned down the offer, but when I spoke to the dean about it, he said he had received over 150 applicants for 3 positions, and any of the top 50 would have suited him just fine ie would have basically been overqualified for the entry level positions for which he was hiring. Different hiring system, but it showed me the difference between my own personal perspective re my individual career aspirations, and the hiring institution's perspective. I'm sure it was true that I, along with the other top 50 candidates, had the potential to be really good professors, but what happened to the 46 people after the top 4 choices (three original offers + one short list offer) when the positions were filled?

Young Curmudgeon:

I'm sympathetic, but you overstate things. It doesn't come across as sour grapes so much as a litany of reasonable points that aren't entirely right and don't cohere.

Re. the publication screen. You're mistaken if you think that this is *only* a screen for number of pubs, so that publishing anything anywhere counts; at least where I have taught, they are also reviewed for quality, and less is often more. This raises the barrier to entry, but the time-honored alternative (any personable, smart person who bothers to apply and who can reel off a few thesis statements must be capable of becoming a productive scholar) has its drawbacks. And the barrier is so much lower than in other academic disciplines that complaining seems ridiculous. That said, if you have a broader complaint about the place of scholarship in the legal academy, that's different.

Re: law school attended. I agree that this is overemphasized; however, I think it's even more heavily relied on if you don't rely on publications. And see below.

Re: self-replication/faculty ignorance of what makes a good professor. Do *you* know what makes a good professor? I can't identify the criteria on which you'd screen — though we're told you'll be great, of which I have no doubt, the issue is how hiring decisions are to be made. I'm sure there's a discernible tendency to hire like commodities, but do credit the fact that faculties have moved to hiring others very much unlike the kind of candidates they were. Perhaps this ironic, as claimed upthread, but the point is that faculty lacking books, PhDs, or VAPs are looking for them now. Complaints about criteria often boil down to the objection that others (just like the complaining candidate, it happens) are being screened against — so I guess the tendency to view oneself as the ideal is deeply ingrained.

Re. hiring by lesser institutions. Perhaps it is as you describe; my sense was that the "picked-over remains" approach was employed because superb candidates actually remain available. Of course, it may be that different skills are needed in such an environment, but I didn't read you to be making that point. In light of your prior comment about pedigree, I will overlook the reference to non-tier one schools and West Nowhere State.

Re. use of stricter tenuring. You are probably right that this is unlikely, but not just because it requires admitting a mistake — it's just painful for all concerned and divisive as hell. However, if the bottom line is right, it becomes all the more important to screen at the beginning, including for tendency to do scholarship, doesn't it? I took this to be one of the post's points . . . making me all the more curious to know how you would make decisions absence an emphasis on the kind of criteria you deplore, but understanding that the sense one can develop from a couple of days with a candidate (conveyable to a collegial body) are somewhat limited.

Reading the deft and wry takedown delivered by Older But Still Curmudgeonly made me exceedingly grateful for the comfortable cloak of internet anonymity.

There’s not enough glory in anonymous comment posting to make me put in the hard work required to make my thoughts cohere, but I am willing to take a few more pot shots.

If faculties are unwilling to take on the painful and divisive task of making hard tenure decisions, should they be entrusted with those decisions? In much of the non-US world, these hard decisions are made by deans, not the faculty as a whole. It’s hard to justify faculty governance when the faculty members confess it’s just too painful and divisive to bother actually doing the job.

The alternative to tough tenure decisions – and we are almost there – is creating a system where wannabe faculty jump from fellowship to VAP to VAP until they’ve proven they can publish enough to merit a permanent job. This system, compared to making tough tenure calls, has disadvantages for both the candidates and the schools. (Not always, of course; my own VAP has been one of the best experiences of my life, but I’ve met others with less happy tales.)

First, the candidates. In Professor Lipton’s example, those passed over got to go on with their lives and their existing permanent jobs. In a world of taking whatever VAP becomes available, candidates are leaving their jobs and moving around the country in pursuit of what might be a chimera (and often trying to commute back on weekends to families and relationships left behind, because sometimes it’s not really sensible to uproot others for a temporary job). If it doesn’t work out – and sometimes it doesn’t – it’s not to be assumed that they can go back to whence they came, career-wise or personally. Is such a system sometimes exploitative? Are senior faculty taking advantage not only of students pursuing the unicorn of $160,000 starting salaries followed by big firm partnerships, but also junior scholars who pursue the dream without the protections offered real professors in the academy?

While the faculty avoids the painful conflict inherent in tough tenure decisions, there are costs for the institution as well. Most significantly, the school makes what is by default a permanent decision on skimpy information, and on far less information than is available when someone comes up for tenure. Once someone has been around three or four years, you have insights into their scholarship, their teaching, and their value as a colleague that you just can’t get from a one day callback. Beyond that, do we want a gypsy underclass teaching our students just because that’s less painful for the tenured faculty than making hard tenure decisions? Do we want to limit entry to the profession to those in a position to pursue VAPs and fellowships?

In terms of what makes a great professor and in terms of what criteria ought to be applied – that’s a hard question in part because of the hard questions that have to be answered before you get to that one, and these are hard questions that I think the academy as a whole doesn’t have sorted out right now. You can’t define what makes a great law professor until you have a handle on what makes a great law school, and you can’t do that until you have a handle on what value law schools need to provide to students and society. When I get that sorted out in a way that coheres, I’m writing an article, not a comment on a blog post.

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where tenure is far from assured. From everything I know, tenure is close to an assured thing everywhere (in part because there are high threshold requirements imposed nearly everywhere). At what (types of) schools is tenure not an assured thing?