ORIGINALLY POSTED ON AUGUST 23, 2003
So asks a colleague in philosophy, who was recently a tenure referee for a law professor at a very reputable law school who got tenure, notwithstanding what struck the colleague as quite weak work. The answer is somewhat complex, and perhaps a bit speculative, but it goes something like this:
(1) Up until roughly the 1970s, law schools were essentially "trade" schools, tightly linked to the profession and to practice: law professors digested what judges were doing, and explained it to lawyers and judges, and to their students.
(2) When law schools were essentially "trade" schools, the traditional qualifications for law teaching--excellent grades in law school classes, a published student note in the Law Review (which digested what judges were doing, and explained it), clerkship(s) with excellent judges and/or practice experience with excellent lawyers--worked very well: unsurprisingly, someone with all those qualifications was usually damn good at digesting what courts had been doing and explaining it to judges, lawyers, and students.
(3) Folks with those qualifications also could earn a lot of money in the practice of law, and since the practice really wasn't that different than the scholarly side--a bit less relaxed, to be sure, a bit less reflective--law schools, to recruit these super-smart lawyers, had to both pay reasonably well (better than the liberal arts, to be sure!) and offer something that practice couldn't necessarily offer, namely, job security (i.e., tenure, or life-time employment, barring gross misconduct). And since the traditional qualifications were actually good predictors of success as a legal scholar on the "trade school" model, it was hardly problematic to start with a powerful presumption that everyone you hired, who had the traditional qualifications, is someone you had just hired for life.
(4) Starting in the 1970s, this whole paradigm fell apart, at least on the scholarly side. Starting in the 1970s, law schools started to move away from the trade school model, and become more closely integrated with the rest of the university. The rise of interdisciplinary scholarship began in earnest. The University of Chicago Law School, which in the 1940s was considered clearly the inferior of Northwestern, was the pioneer in law & economics in the 1970s, and moved, accordingly, in to the very top ranks of law schools. Michigan, which in the 1970s was a top five school on a par with Stanford and Columbia, began hiring PhDs in history, in sociology, in philosophy. A quarter-century later, the vast majority of faculty hired at top law schools have not only JDs, but PhDs in some cognate discipline; and even those without PhDs typically do interdisciplinary work, though often not of high quality.
(5) The interdisciplinary turn in legal scholarship, and the move away from "trade school" scholarship, meant that law schools, especially "top" law schools, became increasingly remote from the practice of law. This development was immortalized by Judge Harry Edwards of the U.S. Court of Appeals for the D.C. Circuit, who wrote a 1992 article on "The Growing Disjunction" between the world of practice and the world of scholarship. By then, however, it was far too late to change things. Yale Law School, the leading per capita producer of new law teachers (by a dangerous margin), and Harvard the leading gross producer of new law teachers, were squarely in the interdisciplinary, non-trade school camps--which meant that the law teachers they were training who would take up posts at Podunk U. had a conception of what was worth doing in legal scholarship that would simply reinforce the growing disjunction.
(6) Yet the change from a trade school to a PhD-program model for legal scholarship did not result in a change in tenure standards. (For awhile it didn't even result in a change in qualifications for new hires, which partly accounts for the huge amount of incompetent philosophy, history, economics, social science, etc. that appeared and still appears, alas, in law reviews. That's now changed in economics and history and some of the social sciences; it's starting to change in philosophy, though more erratically.)
(7) The crucial question is: why was there no change in tenure standards given all the other changes? After all, all those clever, scholarly JD/PhDs were certainly smart enough to be partners at Cravath, Swaine & Moore (New York City's "premier" corporate law firm) but they certainly weren't so inclined, and their scholarly work didn't lend itself to that career path. Yet still the salaries remain high and the tenure standards relatively low (though that is starting to change a bit--more on that momentarily).
On this point, we can only speculate, but here are a few at least plausible hypotheses. First, old habits die hard (just like old reputations!): if most of the faculty was granted tenure without a real tenure review, of course they're inclined to do the same for the next generation. That's just the way it's done, after all. Second, because publication in student-edited law reviews is still important for tenure, and because student-edited law reviews have no intellectual standards (the students are especially ill-equipped to evaluate interdisciplinary work, unless, by chance, the editors include PhDs from other disciplines), any assistant professor who isn't asleep can produce enough work in prestige fora for tenure purposes. And since their senior colleagues won't, by and large, be capable of evaluating the quality of interdisciplinary work, most of it gets a free pass. (Of course this is changing now that more and more interdisciplinary scholars, with appropriate training, are now in law schools.) Third, I suspect a lot of faculty hired by the more traditional criteria, recognizing that their younger colleagues are at least as smart as they are, are reluctant to apply to them a standard that they didn't have to meet.
This isn't to say that there have been no changes. Every top law school has turned down candidates for tenure in the last decade--even Harvard, which has lost considerable ground to Yale because of its general reluctance to do so, even while still hiring lots of entry-level candidates. (Yale largely stopped hiring entry-level candidates more than a decade ago.) Two top law schools--the University of Chicago and the University of Virginia--have even become somewhat notorious for turning down strong candidates (Virginia's "rejects" include, for example, William Eskridge, now at Yale Law School and one of the most widely cited legal scholars in the U.S.). Still, outside the ranks of the top 15 or so schools, most law schools tenure almost everyone they hire; and even within the top 15, a tenure review comparable to what one finds at Princeton or MIT is unheard of. One consequence: while the tenured ranks of the best philosophy departments are full of first-rate intellects (even if one might quibble about whether so-and-so's work is really "that significant"), the tenured ranks of the best law schools (including Yale and Harvard) are uneven, including not only first-rate intellects but also intellectual lightweights.
Even if tenure standards are starting to change, slightly, salary differentials have not, which has surely contributed to the influx of JD/PhDs in to law schools. An assistant professor at a top philosophy department might make 50-60K to start these days; an assistant professor at a top law school isn't going to make less than 110K, and perhaps as much as 130K. There are dozens and dozens of senior faculty at top law schools, as well, who now earn salaries in the 250K range, and up. And this isn't just reserved for the law equivalent of a Jerry Fodor. One can count on one hand, of course, the number of philosophers who earn salaries circa 200K.
In a sense, my own career choices illustrate the impact of these developments. Early on, I had the opportunity to take a tenure-track job at a wonderful, top philosophy department (not just tops philosophically, but in terms of sanity, collegiality, commitment to students, and so on), with some teaching in the law school at that university; or a tenure-track job in a law school, with some teaching in the affiliated philosophy department. The philosophy department made an off-the-charts financial offer (because of the tenure-track law offer on the table), but in the end I went with the law school tenure/salary home, and philosophy teaching/appointment. There were various considerations--some personal, some academic (I prefer teaching legal philosophy to law students)--but some having to do with the nature of the job: (1) tenure was assured in the law school, whereas top philosophy departments turn down good candidates for tenure all the time (think: Hartry Field, Stephen Schiffer, Barbara Herman, Brian Loar, Gerald Dworkin, Richard Grandy, Paul Guyer, Gregory Kavka, John Carriero, Martha Nussbaum, and on and on); (2) tenure was not only assured in law, it was bound to happen much more quickly; and (3) the salary differentials would only grow as time went on, notwithstanding the remarkable starting salary. Given that the nature of the intellectual work I'd be doing, and even most of the teaching, wouldn't be that different, the final decision was, in the end, overdetermined. I am sure this decision-making process is symptomatic of broader tendencies.