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Will the ABA Eliminate Tenure Requirements for Accreditation:

Inside Higher Ed says "maybe" (hat tip: Instapundit). Given that I don't think the ABA should be in the accreditation business to begin with (at least not to the extent that government relies on such accreditation to decide who gets to take the bar, and who gets student loan funding), a fortiori I'm against the ABA's enforcement of ANY particular standard.

But I specifically agree that giving full-time "regular" faculty tenure (much less clinicians, deans, and library directors) should not be a requirement for accreditation. As a commentor on the IHE site notes,

Once tenured, there are many in the academy who adopt an entitlement mentality whereunder they rarely or never do research, teach classes from the same notes year after year until they are well past stale, and fail to meet minimal standards of service and compliance, yet are largely untouchable. And why should a library director or a dean, both of whom are much more administrators or fund raisers than academics, be given such absolute protection if they screw up in their jobs and are not quality teachers/scholars?

I know that when I was on the teaching market, I was amazed when looking at law school brochures to see how many senior faculty at various schools had published nothing beyond an occasional state bar journal article for many years running, and I continue to be surprised at how many law profs seem to manage to have more or less full-time law practices on the side (the latter in violation of ABA rules!).

Also, there are many professors (and potential professors) out there who are fine teachers, but really don't have much to say scholarship-wise. Current ABA standards require that they be given low teaching loads, and also be eligible for tenure, which means that they are forced into a "scholar" persona even if it doesn't fit. Lawyers who are ready, willing, able, and eager to teach are discouraged from joining the academy because they aren't ready, willing, able, and eager to write turgid law review articles for the sake of writing them, just to meet tenure standards. The overall result is a lot of largely unread mediocre scholarship published in obscure law reviews, and a lesser teaching environment for students.

I expect that with or without ABA requirements, law schools that consider themselves to be research institutions will continue to have tenure for their research-oriented faculty. But abolition of the requirements will allow law schools that see themselves primarily as teaching institutions to pursue that goal in a far more efficient manner. Academic freedom is important, but tenure is hardly the only way to protect it (and, in fact, the greatest violations of academic freedom seem to occur when candidates are considered for positions; faculties tend to be much less tolerant of applicants with "deviant" ideological views than of their colleagues).

somethoughts:
I think tenure is a bad idea. Supporters also state that it guards freedom of expression by faculty. But it really just gives faculty like the Duke 88 an impenetrable shield to hide behind. If you produce you'll have a job. Tenure really is a joke.
5.4.2007 1:29pm
Special Guest:
I think tenure for law professors is essential, given the dangers of law students. Professors without tenure will be continually beseiged and threatened by students who think they "deserve" a better grade, who disagree politically, who resent the socratic method and are bitter about law school in general, who feel in any minor way slighted or insulted by the professor.
5.4.2007 1:40pm
Dave Griffith (mail):

I think tenure for law professors is essential, given the dangers of law students. Professors without tenure will be continually beseiged and threatened by students who think they "deserve" a better grade, who disagree politically, who resent the socratic method and are bitter about law school in general, who feel in any minor way slighted or insulted by the professor.


And the least intrusive fix for this problem that you can think of is lifetime sinecure?
5.4.2007 1:53pm
Not Surprised:
I know that when I was on the teaching market, I was amazed when looking at law school brochures to see how many senior faculty at various schools had published nothing beyond an occasional state bar journal article for many years running, and I continue to be surprised at how many law profs seem to manage to have more or less full-time law practices on the side (the latter in violation of ABA rules!).

Why, precisely, should they bother to 'publish'? A blog or one op-ed in even a local newspaper is going to have more readers than the Harvard Law Review. And the only way to get published in a major journal is to publish something completely useless and absurdly theoretical. It's probably for the best that tenured scholars are good enough not to publish yet more useless works; it would just lead to the creation of more journals, and we already have too many of those.
5.4.2007 1:58pm
Viscus (mail) (www):
I do not see how academic freedom is threatened by a selection process that takes into consideration ideological considerations.

That is like saying that my economic freedom is threatened if someone won't hire me because I do not bring the attributes to the table they are looking or won't pay me exactly what I like.

If you are not a good ideological fit for a particular institution, you can go elsewhere. You know markets. I thought libertarians were supposed to like markets, but now your talking about how markets threaten "academic freedom." If you aren't an ideological fit for Yale Law School, go elsewhere. Like George Mason Law. It would take someone who was unprincipled to change or hide their views merely to gain a job at a particular institution. Academic freedom does not require that Yale Law hire far right libertarians, any more than it requires George Mason Law to hire far left communists.

There is something to be said for institutions that have definite limits on ideological diversity with respect to particular issues. Would George Mason Law be a better place if you hired pro-slavery advocates or racists in the name of ideological diversity? I think not.

Increased ideological diversity is not always a good thing. To some extent, it can be useful. But there are definitely limits. George Mason Law is probably a better school because it has all sorts of wacky professors who are ideologically in sync. Likewise, Yale Law is better to the extent that it excludes libertarians.
5.4.2007 2:00pm
Viscus (mail) (www):

And the only way to get published in a major journal is to publish something completely useless and absurdly theoretical.


As someone who has obviously not published in a law review article, you obviously have no idea what your talking about. Some law review articles are highly theortical. Others are quite practical and useful.
5.4.2007 2:02pm
Special Guest:

And the least intrusive fix for this problem that you can think of is lifetime sinecure?


Honestly, yes. I didn't graduate so long ago, and the thought of law students having any more power over their professors than they do now is scary. I can't think of any way to isolate them from this influence if they weren't tenured.
5.4.2007 2:04pm
Houston Lawyer:
So untenured law professors are afraid of their students? Only if they are packing heat and insane.

Law school is primarily a trade school. Some people are better teachers than others. I imagine that the correlation between good teachers and those who are published often is not high.

I had one law professor who was over 80 and fairly deaf. It appeared to have been quite a while since he learned any new law. His teaching skills could have been matched with those of a tape recorder.
5.4.2007 2:41pm
DavidBernstein (mail):
Viscus,

You can't actually be trying to compare the incentives of a business owner with the incentives of nonprofit educational institution faculty? Business owners try to maximize profits. There is no equivalent measure for educational output, and professors have lots of stuff they'd like to measure besides scholarly output, including having colleagues they enjoy hanging out with, using school resources for ideological purposes, making their own lives easier, and so forth.

As for academic freedom, what sense does it make to say "once we hire you, we won't discriminate based on the ideological bent of what you write, but we will discriminate on such criteria before we hire you?" Either you believe that academics should be able to write free from ideological discrimination, or you don't.
5.4.2007 2:42pm
Special Guest:

So untenured law professors are afraid of their students?


Well, as a student, I'd be afraid of (or at least greatly annoyed by) fellow-students thinking they had any more chance to influence their professors through organized whining than they already do.
5.4.2007 2:43pm
DavidBernstein (mail):
I meant, "lots of stuff they'd like to maximize," not "measure."
5.4.2007 2:44pm
Bruce McCullough (mail):

I continue to be surprised at how many law profs seem to manage to have more or less full-time law practices on the side (the latter in violation of ABA rules!).


This very probably is in direct violation of university regulations, and the offending faculty member very probably can be terminated for this. Blame the persistence of this on weak-kneed deans and provosts who ignore blatant violations of the rules.
5.4.2007 2:49pm
The Red Menace (mail):
Increased ideological diversity is not always a good thing. To some extent, it can be useful. But there are definitely limits. George Mason Law is probably a better school because it has all sorts of wacky professors who are ideologically in sync. Likewise, Yale Law is better to the extent that it excludes libertarians.

How do us poor, unenlightened sorts determine which kinds of diversity are "good?" Please GodYahwehAlllahBuddhaChuckNorris, send us a man who will tell us which kinds of diversity are good and which are not.
5.4.2007 3:08pm
e:
There's already something odd about a world where we expect those with almost no life experience to produce most of our scholarship and be our most vital teachers. I might follow the trend and be a classroom corpse after presenting the same foundational material for 25 years, but expect those on their second or third career to naturally be more excited and exciting.
5.4.2007 3:13pm
Bill Sommerfeld (www):
It's not just law schools..

I went to an engineering school. It had an award for excellence in undergraduate teaching which, for whatever reason, became known as a kiss of death for aspiring faculty -- very few of the awardees got tenure, and thus most of them wound up teaching elsewhere a few years after they got their teaching award.
5.4.2007 3:16pm
Advantage?:
The flip side of eliminating tenure is that universities would need to pay faculty more---significantly more---to make up for the loss of security.
5.4.2007 3:25pm
John McCall (mail):
My undergraduate school (Carnegie-Mellon) maintains four separate academic appointment tracks:
professors have both teaching and research obligations;
research scientists have only research obligations;
lecturers have only teaching obligations;
librarians and archivists are what you'd expect.
Only appointments in the first category provide the possibility of tenure. This always seemed like a sensible division (although, as an undergraduate, I didn't have the context to judge); it surprises me that the ABA requires all faculty positions to be tenure-track.
5.4.2007 4:24pm
Viscus (mail) (www):

what sense does it make to say "once we hire you, we won't discriminate based on the ideological bent of what you write, but we will discriminate on such criteria before we hire you?"


The freedom to change your mind. If you manage to persuade a liberal professor at Yale Law who is originally ideologically in sync with the faculty to change to a libertarian, that would really be something. The ability to change your mind or explore different ideas due to intellectually honest dialogue is something we should protect.

The way I see it, early in your career, in makes sense to plan on going to an institution that is somewhat ideologically in sync with you. But it would be too much to expect established professors to up and walk away from a well-established position, just because they changed their mind. Once your in, you should be able to evolve in a natural and open manner, without having to hide your thoughts. But, when it comes to initial hiring, you can target institutions that are ideologically in sync.

The is a huge difference between firing someone for their ideological views and not hiring them to being with is enormous. In one case, we are talking about uprooting someone and people having to work under the constant fear that faculty politics will turn against them. In the other, it is just a matter of orienting yourself to an appropriate institution early in your career.
5.4.2007 5:08pm
Jeremy T:
So, Viscus, what you're saying is that conservatives who want to be law professors should lie to everyone and pretend to be liberal until they get tenure, then pull a Reverse Souter and come out of the conservative closet?

You dress it up with fancy words and prose that is doubtlessly 12th grade level on Microsoft Word's grammar checker, but do you realize the utter inanity of what you're arguing?
5.4.2007 7:28pm
neurodoc:
In medical schools, those who teach future clinicians clinical medicine are themselves practitioners of clinical medicine, devoting at least part of their time to attending to patients. Why is it that apart from those supervising some law school clinics, among those who teach future legal practitioners so many faculty have little "hands on" experience of the law beyond perhaps a clerkship after law school? If fewer law school faculty were granted tenure, maybe law schools would come to resemble more closely medical schools, for better or worse.
5.4.2007 8:37pm
Viscus (mail) (www):

what you're saying is that conservatives who want to be law professors should lie


No, I am saying go to a law school where you are ideologically in-sync with existing faculty. There are existing conservative law schools (Ave Maria, Regents, George Mason, etc.) that lean to the right or ideologically balanced law schools that will hire conservatives (like Harvard).

If you lie about your beliefs to get a position at a particular institution, you have acted dishonorably. I would never advocate such behavior.
5.5.2007 3:50am
Advantage?:
Let's just revisit this in a few months, when more evidence is in; this administration has repeatedly made tinfoil hat conspiracy theorists look good.
5.5.2007 9:25am
KBM:
Viscus, you state that potential professors should just move/apply to a school that is ideologically in sync.
1) What if the professor also has a law practice part-time and wants to also give back and teach part-time; they usually cannot just pick-up and move;
2) Why is it better for a law school to have all their professors ideologically in sync? Seems that a differing of opinions is good, no?
5.6.2007 4:28am
Beem:
I think the counterargument to Prof. Bernstein (which has already been articulated by others) is the tenure is merely compensation by other means, and that any school which denied tenure would find it harder to attract quality faculty. Tenure may make it more difficult to drop undesirable profs, but it also plays a role in attracting and keeping good candidates in the first place.
5.6.2007 5:00pm
Viscus (mail) (www):

1.) What if the professor also has a law practice part-time and wants to also give back and teach part-time; they usually cannot just pick-up and move
.

It is precisely for this sort of professor that tenure is a good thing. Even if their views evolve in a way that makes them unappealing to their colleagues, they do not have to worry about faculty politics leaving them out of a job.

With respect to unestablished individuals looking to go into law teaching, you can't just expect to get a job as a law professor in your ideal city (though some people do get lucky). You have to be flexible if you really want the job.


2. Why is it better for a law school to have all their professors ideologically in sync? Seems that a differing of opinions is good, no?


Some level of ideological diversity is good. But, ideological diversity is not an unqualified good. Do you think having a facist or racist on the faculty would be a good thing? I don't.

At public law schools especially, it makes sense to avoid hiring libertarians. Do you really want voting faculty members who believes that the world would be a better place if public law schools were shut down is going to be able to contribute constructively? Why should they be teaching, when they don't believe in the legitimacy of the mission?

Overall, it is best to avoid extreme ideological struggles within a law school, as groups from different factions struggle for control. One way to avoid such polarized atmospheres (which decrease productivity and increase stress) is to consider ideology as a factor in hiring. Basically, will the person in consideration add tension, or will they be a good colleague?

To conclude, yes, some ideological diversity is good. (But one might question to what extent such diversity must exist within a particular institutions. If I want to read a libertarians perspective, I can pick up a law review article written by Bernstein without being on the faculty of GMU Law.) But ideological diversity also has its costs and it is not an unqualified good.

Whatever you views on ideological diversity, there certainly is no injustice in excluding someone from a professorship at a particular institution due to their ideology.
5.7.2007 3:10am