Paul L. Caron

Thursday, February 13, 2014

Bodie and Tamanaha Debate: Should Law Schools Fire Professors Who Do Not Write Post-Tenure?

PrawfsBlawg:  Should Law Schools Fire Professors Who Do Not Write Post-Tenure?, by Matt Bodie (St. Louis):

My general understanding of the law school scene is that law schools hire people to produce legal scholarship, give tenure to folks who produce legal scholarship, gives raises (of varying degrees) for producing legal scholarship, but never fire post-tenure for failing to produce legal scholarship. And that this is true from the schools with the highest scholarly reputations on down. But Brian Tamanaha has challenged my thinking, in a comment to a post yesterday:

Tenured law professors have three core duties (as stated in bylaws and in ABA and AALS regs): scholarship, teaching, and service. We are paid to do all three. You are suggesting that we only have the latter two duties because schools don't fire professors who fail to write.

Holmes recognized the difference between a right or obligation and the chance someone will bring legal action to enforce it. You are using the low probability of the latter to claim that professors do not have an obligation to write--and therefore are not paid to write. Anything we do outside of teaching and service, by your reasoning, is just compensated "free time." This does not follow.

To see why, imagine what would happen if a law school threatened to fire "for cause" a tenured law professor who has not written in the last 5 to 10 years. You are right that this has seldom occurred in the past, but do not assume it is non-existent (rather than quietly settled to avoid embarrassment). And it is certainly possible in the future given current financial pressures. A law school in this situation would have a very strong case for legal termination. That is why your position is wrong. ...

Brian TamanahaMy position is more nuanced than the passage you quote suggests. While teaching, writing, and service are our three core duties, I believe we can contribute in different ways. A professor who does not write can make up for this through extra teaching or by doing extraordinary service beyond normal committee work, like running an important program for the law school. I would certainly not advocate terminating a non-writing professor who carries a full work load in these other ways. In the book I label this an "alternative contribution system." This is the best way to get the most productivity out of all of us.

Matt Bodie I think there is agreement on the reality out there. But I also want to be clear that this reality puts scholarship on a very different footing than teaching and service. Professors cannot choose not to be teachers or committee members. Deans do not tell professors, "You know, I haven't seen you teach in the last few years -- maybe you could write some more to make up for it."

Talking Head: As a practical matter, accounting for 40 hours a week is very difficult for faculty members to do if they are not spending at least some time researching and writing. We'd all agree that the first (and second and third and fourth) time you teach a subject, one spends an enormous amount of time preparing and refreshing. At some point, one has become something of an expert in the subject and it doesn't take so long to prepare the course. Unless you have very heavy service burdens, it's hard to account for one's time. If teaching two 3-credit courses in a week, there is 6 hours of instruction time plus (for the experienced instructor) maybe another 12 hours of preparation time (a generous estimate). That's 18 hours. If scholarship is 0 hours per week, is that faculty member really spending 22 hours a week advising students, serving on committees, etc?

If you ask me, this is how law schools are going to have to save themselves. Faculty salaries are a big fixed cost and schools just can't afford the deadweight loss of nonproductive faculty. Their salaries could be used for much less expensive new hires who are much more willing to engage in a law school's missions.

AnonI'm not sure if there is real disagreement here, so here's an effort at a consensus view:

  1. Ideally, law professors are supposed to be active scholars.
  2. Those who choose not to be active scholars can serve the law school by playing important roles in other ways, such as from outstanding service or extra teaching.
  3. Some law professors choose not to be active scholars and also choose not to play important roles in other ways.
  4. Deans should (and often do) encourage those professors in category #3 to be more engaged in scholarship/teaching/service.
  5. When a professor in category #3 nonetheless refuses to be more engaged, they generally get a pass from the Dean. The professor won't get good raises, at least to the extent raises are not in lockstep, but he won't get fired.

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No one is hired to a tenure track position without the clear expectation that scholarship will be produced and will continue to be produced as a condition of the "three prongs" of the job commitment. If a professor stated in the interview that "I expect I will produce just enough scholarship to achieve promotion and then tenure but have no interest in continuing that part of the job once I am tenured" then that person would not be hired in the first instance. So there is a kind of false promise by candidates about the intensity of their scholarly interests and other than the existence of the "Old Boy or Old Girl" networking system they would be terminated for a breach of their initial employment terms. Of course there is also a "there but for the grace of God go I" feeling in operation.

Posted by: David | Feb 13, 2014 8:04:38 AM

As good a place as any to say that in all of the years I have been haunting this and so many other legal & law prof sites, I have yet to come across a single piece of scholarship from any professor from my dear, dear law school. Nor do I recall any of them working on anything of substance while I was attending said law school, which currently costs something like $71,000/year.

Posted by: Unemployed Northeastern | Feb 13, 2014 8:51:27 AM