Brian Leiter's View of the Tenure Process:

Prof. Leiter also says something about the tenure process that struck me as quite odd:

Mr. Non-Volokh gives as the reason for anonymity concerns about getting tenure. I confess I wonder about the prudence of that rationale: I would think a tenure process deprived of the information that the candidate had been writing about legal matters for years on a very public website would be invalidated once that information became known.

I only know first-hand the tenure process as it operates at UCLA, but I had thought the UCLA model was representative of the legal academy: Junior faculty -- who, at most law schools, were generally hired with something of a presumption that they would indeed be tenured -- are judged on (1) scholarship, (2) teaching, and (3) service to the university, profession, and community. One's nonscholarly writings, such as columns in a local alternative newspaper, blog posts, and the like might be seen as a form of community service; but they are not a major factor, and if a candidate didn't want them to be considered, they wouldn't be (at least in the absence of unusual misconduct such as plagiarism).

And this makes perfect sense. Evaluating a law review article is evaluating what should generally be a thoughtful, thorough, carefully footnoted work that pays close attention to counterarguments. Even so, ideological prejudice will inevitably color the evaluation; even if we try hard to be objective, we'll naturally think (all else being equal) that articles that come to views with which we agree are better reasoned than those that come to views which we have rejected. But at least we'll see the many pages that carefully engage our preferred arguments, the close discussion of ambiguities in the sources, and the product of many months or years of thinking; and we may therefore often accept the article as meritorious even if we disagree with its bottom line -- which is often only a small part of the article's value.

Evaluating quickly written and necessarily highly incomplete op-eds or blog posts will necessarily prove to be a much more partisan process. Such pieces tell us relatively little about the author's qualities as a scholar, and pose a relatively large risk of ideological bias in the evaluation. Of course some people on the Right are sometimes impressed by some blog posts coming from the Left, and vice versa; yet this will often not be so -- and more often than with scholarly articles -- for reasons that have to do with ideological disagreement rather than any objective failings on the poster's part. Considering such nonscholarly writing is not irrational; one can argue that they do shed some light on the author's qualities of mind. But since the important qualities for a scholar are the ones that he exhibits in his scholarship and teaching, and the tenure process already thoroughly evaluates those qualities, it makes little sense to also focus on material that has much less bearing on the subject, and poses more of a risk of unfair evaluation.

In any event, I am pretty sure that at UCLA people (1) would barely even read a person's blog posts, newspaper columns, op-eds, and the like, (2) if the person asks, would entirely exclude them from the analysis, and (3) certainly wouldn't go back over a tenure case because they had learned that the person had been writing newspaper columns or blog posts on the subject.

Am I mistaken? Do other law schools carefully follow a person's nonscholarly ideological writing in deciding whether to give the person tenure? Does Prof. Leiter's own University of Texas Law School do that?

jallgor (mail):
Alternatively, is Leiter suggesting that the tenure process should take into account the professor's personal views on legal issues?
6.22.2005 2:06pm
Goober (mail):
I don't have much to add about how other schools do it (I suspect they're similar), but so far as I can agree with your concession that blog posts are pretty trashy, I do so wholeheartedly and wish more bloggers would realize the limitations of their little projects.

But I can't share what appears to be your supposition that the only reason someone would object to a blog post would be partisan in nature. It may be the likeliest explanation, of course. But bad ideas are bad ideas, and it's possible to object to them without being part of some spooky partisan cabal.
6.22.2005 2:22pm
Larry (mail) (www):
Short answer: YES. People take into account blog posts. Indeed, blog posts can indicate:

1) an unhealthy obsession with politics or current events (quite frankly, I don't see why law professors care about politics (as in who gets to live in the white house) except as a creature of constitutional law since they are supposed to be above partisan bickering);
2) a lack of maturity;
3) extreme sexism or racism;
4) an obsession with something other than the law.

Now, if blog posts want to be used as a way to get comments on new ideas, in theory this would be a good thing. However, some people on some faculties love to skewer other peoples' ideas (and sometimes grammar) by pointing to rough drafts or half-formed ideas. So, perhaps there is some benefit in anonymity.

Like it or not the tenure process takes into account peoples' personal views on legal issues, as they are probably reflected in the persons' scholarship. Of course, the irony is that a number of academic bloggers, most of whom have tenure, seem to constantly whine about how they, as "conservatives" are "oppressed" because of who they voted for. If I was on a committee tasked with dealing with the tenure of someone who was passionate about the Swiftboats vets (and why they are good or bad), I would wonder if this guy applies the same intellectual rigor to his work as he does to just cheering for some guy to win some election.
6.22.2005 2:24pm
frankcross (mail):
As I understand it, the reason for anonymity was a fear that the blog writing would in fact be considered in the tenure process. I'm not sure about this as a strategy. I would hate to work and gain tenure at a place where I felt afraid to speak my views, but I suppose it might be best for a person in some circumstances.

Should blogs be considered? On the one hand, they provide some evidence of ability to reason, etc. But I fear such an analysis of blogs might well become a beard for the sort of ideological bias that may be feared. But it is obvious that tenure decisions are at least marginally influenced by factors outside the standard list, such as personal likability, collegiality. And anonymity certainly reveals a level of mistrust of one's colleagues that might be relevant
6.22.2005 2:35pm
Craig Oren (mail):
I want to raise a point that I hope is sufficiently related. I'm a participant on a number of webboards, all of which allow posters to use pseudonyms (sp??). I notice that these boards rapidly become very combative, and that posters eventually begin to post material that hinges on personal attack either on other posters or on third parties. Heavens knows that we should not suspect that any law professor would stoop so low (and I am certainly not trying to imply that any poster has done so in my brief acquaintance with the board); still, I encourage Eugene to consider whether it's desirable to allow pseudonyms.

As for Eugene's specific queston, I think my institution, Rutgers-Camden, would give minor consideration to blogs as compared to law review articles. But the same might not be true if the posts seemed to have patently poor reasoning or to constitute personal attack. But we've never faced the question and so my remarks on this are necessarily tentative.
6.22.2005 3:03pm
Larry88 (mail) (www):
In my experience extra-academic writing only becomes relevant to the tenture process when they don't like you. Otherwise, people think it is "cute" or community service. Eugene and Randy are liked. I don't know about Oren (I like him, however.)
6.22.2005 3:55pm
Just curious (mail):
If you don't think blogging will matter to the tenure committe, why not blog under your real name?
6.22.2005 4:11pm
chris (mail):
It should be noted that Leiter has retreated from his stance of publicly outing Juan Non-Volokh, posting excerpts from e-mails that stroke his ego - e.g., someone lauding Leiter's "rhetorical beat-down" of Non-Volokh - before they suggest his quest to out Non-Volokh is wrong-headed. But Leiter insists that he still wants to find out who Non-Volokh is for his own edification. What's the point? Leiter has his own outlet, and he can debate (or, more likely, berate and insult) Non-Volokh on essentially equal terms. Could it be that the point is that Leiter wants to know precisely because he may at some point have a say in whether Non-Volokh is hired or tenured (even indirectly so, by criticizing Non-Volokh to more sympathetic peers at the institution where Non-Volokh teaches)? It is a supposition not out of line given Leiter's relatively recent thinly veiled threats against the Harvard student that wrote on Intelligent Design (see here.). Leiter's approach to matters of debate, and his response in this particular case, seem to justify Non-Volokh's anonymity by themselves.

One other point. Given Leiter's over-the-top approach to alternative political viewpoints, i.e., showing absolutely no tolerance for them, would anyone that disagrees with him want to take his class and be subject to grading on a final exam that might require discussing issues of philosophy over which they and Leiter disagree? Perhaps, I suppose, that is one argument for including such material in tenure consideration.
6.22.2005 4:30pm
Craig Oren (mail):
and I like you, too, Larry88, whoever you are. (I'm not fussy about knowing the names of my admirers!) By the way, my friends, of which you are clearly one, call me Craig.
6.22.2005 4:34pm
Leiter seems just the sort that would blackball someone from tenure based on their political beliefs and casual writings. From reading his screed that started this whole thing, I would expect that Leiter would disqualify anyone from receiving tenure that thought that either Bush should not be impeached, or that Original Intent had any place in Constitutional interpretation.
6.22.2005 4:53pm
Larry (mail) (www):
People have been blackballed for far less than the examples Kazinski cites. (I don't know if Leiter would do such a thing or not, but neither does Kazinski) I think we need to stop pretending that politics doesn't have a place in tenure decisions just like we need to stop claiming that politics of judges doesn't matter when we all want judges with "our" politics.
6.22.2005 5:10pm
I am professionally interested in the question but somewhat unworried. If a person is not required to submit all writing (viz., op-eds or blogs) and chooses not to I think that currently there is little chance it will come up. I asked a member of our Tenure and Promotions committee if they had thought to google candidates. She looked at me blankly.

I think my cover is safe with the current tenured faculty.

Should Prof. Non-Volokh not MENTION his activity to the committee I feel that he is also not likely to be discovered, even if his name is attached to the blog posts.

If there were someone like Prof. Leiter in my department or school I would never have blogged in the first place, nor (basing my opinion on his public performance on his blog) would I cheerfully submit to his judgment. Having met him I would have returned to the job market most vigorously, no matter the reputation of the institution. But perhaps Prof. Leiter is a great-souled human being in the classroom and takes his frustrations out on the blogosphere?
6.22.2005 5:20pm
Ignorance Given Form (mail):
I think "Mr. Non-Volokh" has a real concern, not on behalf of the tenure committee necessarily, but with regard to the students at his school.

I just finished law school, and early in my second year, there was a controversy involving the hiring of a new adjunct professor. The faculty interviewers liked him fine, but the student advisory panel had Googled the academic and found some posts on a subject that grated with their personal views. As a result, the student advisory panel gave the candidate a thorough inquisition based exclusively on his web posts.

I could see that similarly, when tenure becomes an issue, a politically-motivated student group could seize on blog posts to, while not necessarily scuttle a professor's career, make his life excessively difficult.
6.22.2005 5:33pm
Juan Non-Volokh (mail) (www):
I think a few of the above posts have identified the dynamic that initially caused me to start blogging under a pseudonym when Eugene first asked me to join the VC. I am reasonably confident that I will get tenure; most tenure-track faculty at my institution are hired under the assumption that they will be tenured if they meet the publication requirements and my last non-tenure promotion went through without a hitch.

While the risk of not getting tenure may have a relatively low probability, it is of a great magnitude. The nature of the academy is such that a failed tenure vote can have substantial negative repurcussions. So it makes sense to be wary of that risk even if it is not all that great.

A second relevant aspect of the tenure process (like the hiring process) is that a small, committed minority can have a disproportionate influence on the process. So even if the vast majority of my colleagues were happy about or indifferent to my blogging, it could still be a bumpy ride if one or two were bent out of shape by blogging (or anything else I have done outside of my official academic capacity).

As for what a tenure committee should consider, I've been told that my tenure committee has no particular interest in the content non-academic writing barring some extraordinary circumstance. As I understand it, they would not care to review any blogging I have done unless I had bad-mouthed my institution and my colleagues, or otherwise did things that would cause embarrassment to my institution. This is also their view with regard to things like op-eds. I have not thought deeply about whether this is the proper standard, but it seems reasonable to me.
6.22.2005 5:51pm
Chris Lansdown (mail) (www):
Not being an academic I'm out of my field, but I fail to see the point in the sort of holistic review being discussed which concerns itself with every aspect of the history of a person up for tenure. Obviously every employee to some degree represents the instituion at which they're employed, and tenured professors perhaps more than typically, but isn't a holistic review of tenure candidates not only in danger of making the perfect the enemy of the good, but also in danger of academia just taking itself way too seriously?

The question at hand is tenure, not canonization.
6.22.2005 6:10pm
SupremacyClaus (mail):
Prof. Oren: Anonymity permits the reaching of a tiny island of free speech, the internet, for the exhausted intellectual swimmer. I have used my real name. It wasn't good.

There is no free speech at your school, nor anywhere else in Amerika. The supervision is as tight as in any tyrannical country. Even jokes are not allowed here. At least, the victims of Stalin could take refuge in jokes. Any remark about a privileged group will result in reprimand, firing, expulsion.

The A/C is on full blast for speech. Characterizing a law prof as a Hate America, doctrinaire Commie, flat-earther, beneath specificity, peddling criminal cult enterprise swill, what result? The icicles are running down the nose of shivering free speech.

You advocate additional refrigeration. You are appalling, Sir.

I need a favor. Do you know a way to get a transcript of the law school commencement speech of Chertoff? Thanks, in advance, for any help.
6.22.2005 6:23pm
Anderson (mail) (www):
We must wonder what UT-Austin knew of Prof. Leiter's politics (and rhetoric) when it granted him tenure. I probably agree with Leiter more often than 90% of the VC's readers do (and his book on Nietzsche is quite good), but his pettiness is obnoxious. And god knows, nobody needs a prof with tenure to condescend to those who lack it.
6.22.2005 6:41pm
Stephen M (Ethesis) (mail) (www):
a small, committed minority can have a disproportionate influence on the process

I think that is a legitimate concern.

Wish you well, look forward to hearing you obtained tenure.
6.22.2005 6:47pm
Craig Oren (mail):
May I suggest that your post might illustrate the ills I was writing about?

Although you find me "appalling" (remember Adlai Stevenson's line about Norman Vincent Peale, "I find Paul appealing and Peale appalling"), I am of course happy to do you a favor. After all, I'm a wonderful guy. I have not seen a transcript. I am almost 100% sure that we do not transcribe speeches at commencement. If there is one available, Secretary Chertoff's office would have it, and so I suggest you contact it.

I hope you enjoyed the speech and that your summer goes well.

P.S. feel free to write me privately (but, please not anonymously) if you want to discuss this matter further.
6.22.2005 8:11pm
Adam Scales (mail):
This is pretty depressing. I've always enjoyed reading JNV's posts, and have difficulty seeing how I would be better equipped to agree or disagree with them if I knew his name.

There is no question that expressing conservative views at the majority of law schools will quickly distinguish one from one's colleagues. That distinction will not often inure to the benefit of the untenured.

Law schools are straining at the limits of institutional competence simply to evaluate tenurability on the basis of potentially novel or unfamiliar scholarship or the generally uninformative student evaluations. I am certain that I would form an impression of someone's intellect and judgment from reading blog posts (Professor Leiter, you can be certain this is true in your case). But I would be horrified to see someone's Op-ed piece trotted out PRO or CON in a tenure vote. What the hell would we do with it?

Perhaps blog writing will emerge fully as an evaluable mode of scholarship. I don't think this would be a bad thing, though I wonder how it could be done. Until that day arrives, I fear they will be used to transform an effective teacher and scholar (I speak generally) into someone who has "brought discredit to the institution" or some similarly precise, politically malleable phrase.

6.22.2005 8:24pm
EugeneVolokh (mail) (www):
A few thoughts: (1) Please don't call each other appalling. A softer word will almost always be more effective, and create a nicer environment for everyone (and an environment in which the critic's objections are likely to be taken more seriously).

(2) Please try to stick to accuracy in place of hyperbole.

(3) In Stalin's Russia, jokes were not safe.

(4) At a law school, it most surely is not the case that "Any remark about a privileged group will result in reprimand, firing, expulsion." I made many remarks about many privileged groups before I was tenured, and I wasn't reprimanded, fired, or expelled. This is even more clear as to students than faculty (I take it the poster was referring to students because of the word "expulsion").

(5) I don't know exactly what the phrase "Characterizing a law prof as a Hate America, doctrinaire Commie, flat-earther, beneath specificity, peddling criminal cult enterprise swill, what result? The icicles are running down the nose of shivering free speech." means. But I do think that both calling people names and being incomprehensible is likely to be unpersuasive.
6.22.2005 9:10pm
SupremacyClaus (mail):
Prof. Oren: If we were to converse by real names, we would like each other. I would tone down the dissent to the cores of the profession, to not hurt your feelings, and to avoid having you feel threatened. Even if you found my antics funny for a time, their seriousness would get to you. You would complain. My affection would then corrupt my message, and it would tone down.

You would miss out on fundamental if brutal news to the legal profession from high school and freshman Western Civ 101. The content of the latter courses has totally been erased from your memory by your cult indoctrination. You would find my high school World History points new and brilliant, if sickening, despite your 30 point IQ advantage on me, not to mention your being better looking. Think Stone Age culture, brilliant Chief being handed an aspirin by a mediocre doctor, and thinking the cure to his headache is a miracle. Not a miracle, just a mismatch of cultures, yours from 1600 AD, mine from 1960 AD, never mind 2000 AD.

Civility would preclude this opportunity. We hopefully each have enough friends in the flesh, do not need more. However, you do not have enough of my anonymous dissidence. It gets detailed, but increasingly intolerable. I can go page by page in any Hornbook of your choice to document the criminality of the profession, and score a corruption crime on 90% of the pages. That opportunity is possible only with anonymity, like an intellectual witness protection program.

I would want to read a candidate's anonymous postings if I were on a tenure committee. Why? It may be the best stuff in every way, including brilliant, surprising originality. I would have to trade absolute immunity from any retaliation by the Gidgets running the law school. The full tenure committee should only be allowed to get ratings of the intellectual aspects, not the specifics nor the identity, to be known only by a single member trusted by both sides, but who is known to be able to keep secrets. As that committee person, I would even be interested in the quality, wit, persuasiveness of the writing of the candidate on the Teen Loveline Connection, with full secrecy assured. "Yes, a perv, but really a compelling and persuasive advocate."

Most legal bloggers open all postings to comment. You then get an idea of what subjects will draw a response. You may get the benefit of interaction and synergy from the wisdom of the crowd. That may generate more ideas for academic projects. Even a dumb comment from a commentator, may inspire something brilliant in the blogger. This is a system, unexpected advantage that deserves more than an automatic dismissal.

If I were a working attorney, as well as a prof, anonymity would be an absolute necessity. Targets of the writing could be in position to hurt my clients. Anonymity is a kind of duty to the client (OK, not yet addressed by the ABA). Retaliation by the target (a judge) would generate a malpractice lawsuit against the prof, and an ethics complaint against the target of the posting. Candor about a judge is a violation of the Rules of Conduct, and a rare island of lawyer accountability to third parties without privity (please, heirs are really third party beneficiaries and do not count as an exception). If the message can withstand disclosure of the name without consequence, why bother writing it? There is likely nothing in it news nor of value.

You also have to explain to the lay person why someone so bright and knowledgeable as a law professor is willing to take an 80% paycut to work so hard to earn tenure.
6.22.2005 10:05pm
SupremacyClaus (mail):
Prof. Volokh: Thank you for your advice, which I take seriously. The word "appalling" was in parody, and in self-mocking support of Prof. Oren's point, as to the rapid degeneracy of anonymous postings. Not funny enough. Sorry. (He got it.)

All seriousness aside, I suggest you open all postings to comment. Most law bloggers are doing that, following an informal standard of practice these days, endorsing the lively exercise of the First Amendment.

Chill of free speech: You have an universal blog provider Hold Harmless clause. Keeps me from blogging. Read my browser agreement. It is there. This is contract unconscionability in adhesion interfering with First Amendment Free Speech. How does one not agree to a browser contract and function these days?

Comment appreciated: contracts and the UCC versus our American way of life.
6.22.2005 10:37pm
Robert Schwartz (mail):
I have run across this Leiter creature before. He is a blowhard and bully, and he trashes anyone who dares to disagree with him. He only wants Juan's name so he can slime Juan. I say send Leiter to the Devil.
6.23.2005 12:00am
Alan Meese (mail):
I agree with Eugene 100 percent on this. Blogging, Op-Eds, television appearances, and letters to the editor are not the sort of activities that are relevant to the tenure process. They don't seem to constitute "scholarship," and they don't seem to constitute teaching, either. Moreover, "service" in the tenure process generally connotes participation in Faculty governance, and maybe things like law reform committees, though most engage in such activities after tenure, not before

Moreover, it's not clear why one would need to review Blog Posts in the tenure process to assure their quality. Certainly the blogging market does that! A blogger who consistently gets it wrong will likely lose readers pretty quickly, and bloggers by definition care about readership. The market mechanisms deterring poor legal scholarship are more vague and indirect.

Finally, it is sometimes a nice question whether a letter to the editor on a "mixed question of politics and law" is done in one's personal capacity, or in one's capacity as a Professor. To the extent it is done in one's personal capacity, and signed as such, the tenure process has no business reviewing such materials.

For what it's worth, here at William and Mary we do not count Op-Eds, Blogs, etc. as "scholarship."
6.23.2005 1:24am
Eugene's guidelines are a great ideal, but the funny thing about it is the Leitner would have trouble complying were he to post here.

And I'd say if Juan were at an institution where Leitner has anything to say about his tenure, he'd have reason to sweat. What is it about Juan, that when he makes what is really an innocuous post it sets off blowhard (sorry Eugene) academics? About a year ago Brad DeLong went ballistic when Juan included a quote from Irving Kristol in a post
6.23.2005 2:48am
Interesting thought: Compare Leiter's ridiculous suggestion that tenture would be "invalidated" because of anonymous writings on a blog with his hysterical defense of Churchill and his right to "academic freedom."

Calling the victims (and by extension every American) of 9-11 "little Eichmanns" is protected speech, but blogging anonymously about tangential political and current events is grounds for "invalidating" tenure.

Read Leiter talking about "protected nonsense" here.

In other words, you can pretty much say whatever you want, you just can't do so anonymously. Uh, OK, Mr. Leiter.
6.23.2005 8:05am
Larry88 (mail) (www):
Challenge, Since when does constitutionally "protected speech" give rise to a right to tenure?
6.23.2005 9:14am
I'm not sure if I get your criticism, Larry.
6.23.2005 9:31am
SupremacyClaus (mail):
1) Can a fictional character be sued, jailed for illegal or tortious speech? Should a fictional character receive credit for brilliant intellectual discourse, for celebrity, and have it transferred to its author? Should a fictional character be held accountable for plagiarism, copyright violations, software misuse, etc? Fictional characters downloaded MP3's from other fictional characters. They were sued in real court.

A fictional character in a novel does unspeakable acts of cruelty. Yes, that character must be targeted by the fictional hero and gets due comeuppance. However, the readers are titillated by the villain's antics. No one cares about the hero. Clearly the author knows a great deal of vivid detail about the perverted perfidies of the villain.

If blogging is a real act, then it might count. Should blogging as a fictional character be subject to discovery in a lawsuit? Let's say, failing candidate sues the school, will it then become interested in the blog? Should all the fictional names and passwords be subject to discovery, let's say in a custody dispute where child molesting accusations are flying? There was no mention of that in the Jackson trial, at least in the news articles.

All is in the direction of chilling free speech. Refrigeration courtesy of the criminal cult enterprise that now utterly controls 3 branches of government.

2) As to the purity of the tenure qualification process, does celebrity influence the review, obtained, for example, by 1 minute sound bites on the news? One candidate writes 100 page articles, read by dozens. The other is known from TV, and fills up classes, brings in donations from rich friends. The tenure committee ignores that as not scholarly.

One candidate has written only one short paper, downloaded and cited 1000's of times, including appellate justices in decisions. Another writes 10 long ones a year, read and cited by few.

A Supreme Court Justice does the right thing, resigns after 10 years. Still young, applies for an academic tenured position. The committee refuses to read the decisions.

One candidate is hot, fills up classes, gets decent student ratings. One candidate empties the room.

One candidate has written a Hornbook, even expert judges find difficult to read, basically a turnoff, making the subject unnecessarily repulsive. The other has written a Gilberts or made a bar review CD, that has gotten 10,000's of students through.

The prolific academic windbag has generated lawsuits by students, seeking tuition refunds, and proposals for funding cuts in the state legislature. The less prolific has popularized the subject, and has friends in the legislature.

The windbag has sent a detailed notice of intent to sue letter from a downtown law firm. The other is a nice person, who would never sue anyone.

Both candidates for one spot match well in academic output and student ratings. One candidate is a Hate America, Commie flat earther, with something against shaving her legs. The other is a Christian Evangelical, annoyingly saintly, politically conservative father of 8, with one on the way.

One candidate is friendly, just well liked by everyone on the committee. Another feels free to criticize the pedagogy and intellectual horsepower of the committee members, in public, and by name, is thought to be obnoxious. The latter is a prolific government grant getter, bringing in $mils in overhead profits to the school. (Someone on the committee has to say, this is "business," at some point. If the latter does not get tenure, the Ivy shop across town would love it, not to mention, the transfer of all that overhead pay.)

This tenure process may be more bogus and corrupt than the legal system. At least the criminal cult enforcers on the bench are busy, and must get things done. The academics have all day. Why would an intelligent person subject themselves to such humiliation, to be followed by an 80% paycut compared to a productive job on the market?
6.23.2005 9:35am
Anon Again (mail):
Interesting thought: Compare Leiter's ridiculous suggestion that tenture would be "invalidated" because of anonymous writings on a blog with his hysterical defense of Churchill and his right to "academic freedom."

Perhaps Leiter is stating that his tenure should be revoked based on things he did when he used a pseudonymn.

That would explain a lot. His repulsive self-hate and guilt are driving him towards a public resolution.
6.23.2005 12:04pm
Larry88 (mail) (www):

In its simplest form, whether speech is protected or not prevents the government from regulating it. Most regulations are in the form of criminal statutes, but regulation can come in the form of taxation, restriction, and sometimes discrimination. In general, Challenge, this constitutional protection only extends to government actors (which include state universities), but there are some statutes (not particularly relevant here) which attempt to protect certain speech against discrimination by private employers.

Tenure, in its purest form should be a question of whether or not someone is being a "good" professor. (I know, and you know, that it is crazy to think that this is objective, but everyone plays along with this notion.) At a state university, the definition of "good" professor cannot run afoul of the constitution. So, for example, a tenure decision cannot be made on the basis of race, sex, political affiliation, and such. The question you raise is whether a tenure decision can be made on the basis of a scholar's work, TAKEN AS A WHOLE contains both "good" scholarship and "bad" rumblings, that happen to be protected. Insults against people who died on 9/11 are protected, but probably are bad scholarship. On the other hand, the constitution may demand that at a public university, only scholarly works may be considered for tenure, because everything else someone does is protected by the constitution.

You seem to argue that the second alternative (that the constitution requires that state university tenure decisions be made based on scholarly work, viewed in isolation from political discourse) is the practice, and that it this view is wrong. However, you have not shown any authority that would indicate that this is true.

For example, most of the bloggers on the VC are lawyers, and quite smart ones, but as soon as something political comes up, they don't even bother analyzing it, but gleefully turn into cheerleaders. Now, if the VC were a record of scholarly research, and I was a tenure committee, I could either 1) view all of a posters posts; or 2) conclude that some of them are "protected" because they are not meant to be "academic" but rather "political" and then exclude them from consideration. You seem to indicate the second option is required but don't explain whether this is really "the law."
6.23.2005 12:52pm
Bill (mail):
I agree that blogging should be taken into accout in the tenure process, but also the differences between the format and standard publications should be.

Reading the comments, though, I find so much to disagree with about HOW blogging should be taken into account that I feel drawn toward Eugene's view that the "professionally relevant" should be carefully cordoned off. Still I know that can't be right. How one comports oneself in public discussions has always been relevant and the web has just given rise to a new and vastly broader forum for conversations that remain public.

(This comes from someone who has learned the hard way that you can't fully take back ill-advised comments made in cyberspace.)
6.23.2005 1:07pm
Larry, I don't get what your odd lecture has to do with what I wrote. Leiter thinks that Churchill's inflamatory remarks are NOT grounds for dismissal or revoking tenure, but he DOES think writing anonymously on a blog is. That simply makes no sense.

As I said, following Leiter's logic one can say pretty much whatever one wants to say, but one must not post anonymously on a blog. That's nonsensical, to say the least. If nothing Juan has posted is grounds for revoking tenure (using Churchill as the standard, I think that's without a question), then why would posting it anonymously be grounds for revoking tenure? Understand?
6.23.2005 2:07pm
Larry88 (mail) (www):
You mentioned protected speech, but I am not entirely sure you understand the concept.

If you assume that Leiter's position is correct as a matter of law, but incorrect as a matter of policy you are arguing that professors have a right to segregate the speech that they consider non-academic and or "political" from the material that is considered for tenure. So, under this view, one can maintain a blog, but make it clear that such a blog is not really part of their teaching duties, and never have that brought up in any discussion of tenure. Indeed, there is quite a bit of appeal to this way of looking at things, because Juan is not attempting to use his blog to get tenure, and his first amendment rights are preserved. Likewise, Mr. Churchill can say what he wants about the victims of 9/11, and so long as it isn't considered "academic" it can't be considered as part of the "record" for tenure purposes. With Juan it to determine which is which, since his non-academic work is anonymous and therefore will never make it into the record. With Churchill it is more complicated. (I have to admit I don't follow most news for the lay-people, so I don't know the details, but as I understand it, he said something and invoked the name of the university and maybe his credentials as an academic, but didn't attempt to contribute to any scholarly discourse.) I don't think this is the law, but I am not 100% sure, so I figured you could point to some authority.

Now, you seem to argue that this is a bad idea as a matter of policy and that Leiter is wrong. Your argument is that it is nonsensical to accord constitutional protections to Churchill's speech, but no protection to Juan's. It would seem that you are arguing that it would be better for a tenure committee to consider a person's work as a "whole" (both Juan's and Churchill's) and then give lesser weight to non-academic work. So, in your view, Churchill's speech "looked" academic, so it would be accorded more weight, and Juan's doesn't look as academic, so the constitution requires that it is given less weight. Posting anonymously, in this view, would be grounds for revoking tenure, just like non-academic statements, if the posts demonstrate such a fundamental disagreement with everything that the university is purporting to do. This isn't constitutionally required, either, because most of the time people like to speak in absolutes about protected speech, but one could probably make a case that such a sliding scale might do some good. (Though, of course, Juan would probably want his blog counted if, after he released his brilliant insights to the public, people concluded that he really was brilliant, but this would seem to give him an unfair advantage: he could pick and choose, after the fact what he considered "academic" or not.)
6.23.2005 2:23pm
untenured prof:
Eugene, or someone, would you consider a blog entry on a not-unrelated issue? As an untenured person considering blogging, I'm wondering whether blogging, as such, would be considered by most elite law schools to be a good thing, bad thing, or neutral thing. Assume the blog would be mainly but not 100% about legal issues - much as this one is. I'd like to try blogging, but with a year to go until tenure time I'd certainly wait if I thought the mere fact of blogging would be perceived negatively. I've had lots of conversations with peers about this and others have voiced the same anxiety. Thoughts, anyone?
6.24.2005 8:32pm