Friday, October 11, 2013

Law Professors' letter to the ABA regarding the proposals limiting tenure

A few days ago I caught, via Faculty Lounge, a letter being circulated among law professors, written by the AALS Section on Minority Groups, opposing the ABA's draft recommendations which support dropping law school tenure requirements.

The basis of their arguments in favor of tenure is that "lack of tenure protection for professors will cause a negative impact on academic freedom, the creation of safe space for dissenting voices, and recruitment and retention of minority law professors . . . Notably, tenure facilitation meaningful academic freedom by protecting a law professor's ability to engage freely in the teaching and writing of groundbreaking subjects."

I would disagree that many law professor's "engage freely in the teaching and writing of groundbreaking subjects."  Most law professors teach the same subjects from the same books based on the same old appellate court opinions, regurgitated from the teacher's outline.  Most scholarship, bluntly, is non-peer reviewed garbage, read by a handful of people.  Just like there has been a glut of JD's for decades, the glut of legal scholarship reduces the value of the average article.

Tenure for law professors is a sweet deal.  Who wouldn't want comfortable, low-stress jobs, complete with six figure salaries in a never-ending contract?

No one could dispute the importance of academic freedom, creation of safe spaces for dissenting voices, and removing discrimination from employment in any field.  However, those arguments in support of leaving tenure as is seem tacked on, and typical of elites trying to protect their privileged position by invoking certain sacred cows.

As it is the AALS Section on Minority Groups, I expect them to focus on traditionally under-represented minorities in legal education.  However, it seems curious to me that they invoke tenure as a way to increase diversity, as tenure benefits all law professors, regardless of skin color or sex.

They also lob a thinly-disguised attack on the racial motives of the ABA's proposals by questioning the timing of the tenure-reducing suggestions just as "such protections are beginning to accrue increasingly to nontraditional groups."

The timing of such tenure-weakening proposals are made in light of the crisis in legal education, which are economic in nature, and have nothing to do with attacking rising minority groups in legal education.  And as I, and many others believe, the ABA's proposals, some of which are interesting and possibly helpful, are still ludicrously short of what needs to be done: greatly reduce the number of law students and the cost of educating said students.  (If an attack on tenure causes racial bombs to be thrown, just imagine the outcry in the future debates about closing low-performing law schools, having an LSAT requirement standard for accreditation, and the most important one: eliminating subprime student loans).

The AALS Section on Minority Groups at least accurately (if perhaps grudgingly) acknowledges that the articulated reasons for removing tenure protections are economic.  They quote Dean Maureen O'Rourke, who identifies that law schools' largest fixed costs come from tenured law professors, and that
"the solution is not to give everyone tenure, but to give no one tenure.  Frankly, we don't need 200 law schools that look like Harvard Law School and value the same things as Harvard Law School.  Somewhere down the line, the students get lost."  

Of course, the AALS Section on Minority Groups "find Dean O'Rourke's arguments unpersuasive."  They note that law schools can reduce their fixed costs by "curtailing hiring or declaring a financial exigency, among other options" (which are not later articulated).  First of all, most law schools have curtailed hiring, and many are trying to get rid of senior faculty by buying them out.  Second of all, financial exigency is a red herring because it would be the last resort of any law school, short of all-out closing, because if any law school would publicly admit that their admissions would crash and they would close anyways.

Instead, the AALS Section on Minority Groups (from now on, "SMG") distracts away from the issue by insisting that O'Rourke misses the point, misconstruing her statement to mean that she believes that "legal education would somehow be improved if law schools paid less to their most experienced teachers."

The reason that the ABA is even putting forth a weak recommendation that endorses weakening tenure, again, is the pop of the legal education bubble.

No longer can the quality of legal education be solely measured on the "quality" of the classes (which are taught using outlines and unhelpful casebooks) and the ability for law professors to produce legal scholarship thanks to their low "work" hours.  The SMG cannot hide from the fact that legal education prepares students for the legal profession.  Not only are law graduates not prepared for law practice, but they are not financially prepared.

A law graduate with $1200 loan payments, earning $45,000 a year for 60 hour workweeks in a small firm isn't going to care about the "quality" of their classes, as defined by the SMG.  However, this argument is made with the assumption that the SMG cares about what happens to law students after they graduate.  However, the word "debt" and "outcome" are never mentioned, and "salaries" are only mentioned in conjunction with law professors.  As O'Rourke said, "somewhere down the line, the students get lost."

Frankly, the SMG becomes a parody of the legal establishment, and themselves, near the end.

Two notable gems:

Legal education, indeed, higher education more broadly, has prioritized core values that include academic freedom and debate, intellectual curiosity and rigor, diversity and social justice.
(as they criticize the private sector, "where some see short-term maximization of shareholder profit as the primary value.")

Law schools have acted like any rent-seeking institution, justifying their enrichment in an inefficient market, propped up by oodles of taxpayer cash, by invoking their favorite "feel-goodisms." 

Their other fun quote:

Too often, in faculty hiring and tenure decisions, "flexibility" has resulted in the exclusion of minority professors.  "Flexibility" perpetuates the status quo of underrepresentation of minority professors in legal education." 
I really have to laugh at their description of "flexibility," especially in the year 2013.  It reminds me of invented "racist code words." "IRS."  "Incompetent."  "Entitlement society."  And now we have another one: "flexibility."

Not surprisingly, the letter ends with a call for "more diverse representation" on the ABA Council, and calls the "omission of important demographic groups" a "process failure."

There are many that call the Council's Draft Recommendation a failure.  It doesn't go far enough, but we can only wait to see what the final version is like, and if it is actually acted upon.

In the meantime, we can see what sort of weak defenses establishment figures and groups make defending the status quo, such as the letter by the SMG here.


  1. ABA: The current tenure system for law schools is increasingly dubious, philosophically, and economically unsound for current and future law students, as those students bear the burden for said system. Reasonable revisions should be considered immediately.

    LawProfs: Waaaaah! Waaa Waaa Waaaahhhhh!

  2. Oh, yes, Prof. Dipshit's article "Miscellaneous Preliminary Speculations on the Desirability of a Critical Neo-Rawlsian Theory of Law and Soap Operas" so bristles with controversy and dissent that Prof. Dipshit's pampered ass absolutely must receive a guarantee of lifelong employment that is practically unknown outside the sable-carpeted halls of hackademia. All of three people have read that vitally important article—and one of them was the harried editor stuck with the task of turning Prof. Dipshit's illiterate ramblings into an approximation of legible prose.

    And of course tenure for Prof. Dipshit, the tag-along spouse of another tenured professor in the same institution, does ever so much to promote racial equality. After all, the same inbred white asses that occupy those posts will keep racialized people out of them for decades to come.

    Shit, I can't go on writing in this vein. It makes me want to puke.

  3. These arguments seem really strange. Even a cursory review of the so-called literature published by law profs displays a notably uniform world view. It would seem that the protection afforded by tenure is not creating a diversity of opinion and thought. My impression is that tenure (at least in law) is largely a system that allows for predominately left-wing ideologues to occupy tax-payer and/or student-funded positions, while collecting six-figure paychecks, working very limited hours, and producing a moderate volume of zero- or negative-value publications that few people will read, let alone act upon.

    The argument about minority representation seems particularly cruel, as I would expect that minority students are more likely to take on debt and less likely to secure remunerative (or any) legal employment. Essentially, minorities are actively harmed by tenure (since it's acknowledged that tenure causes legal education costs to be higher than they would be without tenure).

    1. It has been argued that tenure in any college or university is usually obtained by those who keep their heads down and their mouths shut, and who do not in any way rock the boat or contradict those in positions of authority. Hardly a recipe for fostering academic freedom or diversity of viewpoints.

  4. The legal institution has to come up with a better argument than "... but what about minorities?"

    Isn't that also the one they trot out in response to any attempt to reduce the number of students at law school?

    Exactly how many minorities are currently in legal academia, and how many are expected, given the stringent grade and school requirements (much stricter than Big Law). Law School is basically an exercise in academic hazing that culls out a certain type of student, with a certain type of personality, from a certain back ground. Those criteria result in an overwhelmingly white, male, upper-middle class cohort. So this argument is basically a non-starter.

    1. Law professors almost always hire people of their own kind: white people from privileged backgrounds. The rare token Black or other racialized person hired to teach law tends also to come from privilege.

      Nepotism infests law-school faculties. Frequently the spouse, child, or parent of a professor is a professor in the same law school or at least in the same university.

      The claim that the faculties of law schools are passionately striving to redress racism through hiring is a whopping lie.

    2. -The legal institution has to come up with a better argument than "... but what about minorities?"-

      Reminds me of the Minister's wife from Simpsons intoning out of context "Won't somebody please think of the children?"

  5. Friend of mine with solo practice that was making decent money (six figures) is asking me now, "what's up with the economy? My revenues have caved?" I said, "people are going online and getting forms for wills and estates..." Likewise, these professors don't realize the sea-change that is occuring under their feet. In a few years, they're going to be writing petitions such as "Preserve the Blue Book for Exams." (newsflash -- the "write with pen" methodology of exam execution became extinct with the pager.)

    1. No. I write my exams with a fountain pen. Then again, I was born before the Battle of Hastings.

  6. They should make two professor tracks/options:

    1. academic tenure - in this scenario, the professor is paid like a PhD student, they're encouraged to do research, and they have the protection of tenure.

    2. non-tenure - paid comparable salaries to private-sector counterparts, emphasis is on teaching, research is discouraged, and they are required to devote 40 hours a week to teaching activities.

    How many choose option 1?

    1. Love this idea - seriously. Since they are always talking about making different kinds of law schools, why not this? Different kinds of professors for the different kinds of law schools. An added bonus would be that it would blow the roof on their hypocrisy in about 10 seconds.

  7. You know you have suggested something that the modern liberal elite doesn't like when they start calling you a racist.

  8. This "racism" argument may backfire on the pampered white professors who invoke it so often without any meaning. Someone may just point out that tenure, with its associated costs, keeps young minority professors from getting hired. It isn't a huge issue for me, but if the white professors drive me and others out of the debate with cries of "racism," there won't be any voices remaining to advocate fair treatment for the few good professors.

    Most professors are greedy, pretentious, short-sighted idiots who don't deserve their positions, but some professors work hard and deserve tenure. Race-baiting is going to bite them hard if they don't stand up against it.

  9. Some of you don't want tenure to remain for anyone, and I'm fine with that. I do think that tenure, if it survives, won't be seen much outside the top 30--or maybe 50--prestige factories.

  10. The greatest barrier to the entry of the legal profession for minorities is the cost of tuition and the associated debt.

    Tenure is the greatest factor in the high and escalating cost of law school tuition.

    It seems that it would be racist not support a system different from tenure so as to enable students with fewer resources and connections, like many minority students, to enter the legal profession.

    It's really that simple.