January 03, 2009
Some Modest Advice for Young Law Scholars
Posted by Gordon Smith

During the recently completed fall semester, I wrote six tenure letters. Over the past several years, since I started receiving requests to do this sort of thing, I have written roughly 15-20 such letters. What follows are a few reflections on this experience that may be helpful to young law scholars.

In my view, influenced greatly by conversations with many mentors and peers, the primary obligation of a reviewer in a tenure case is to write a candid analysis. Reviewers do not make the ultimate decision, but they should aid the home institution in its evaluation of the candidate, and insincere evaluations are not helpful.

What's worse, from the reviewer's perspective, is that insincere evaluations are transparent. Remember that most schools are soliciting multiple reviews of the same material, and if one reviewer's letter is filled with glowing generalities while another letter contains specific examples of the shortcomings of the work -- often confirming the analysis of the people receiving the letter -- the former is readily identified as a hack. Having been on the receiving end of these reviews, I can tell you that most everyone can spot fluff in a review, and I have little respect for reviewers who write such letters.

Schools state their tenure standards in various ways, but most want an evaluation of the quality of the work, where "quality" is defined not merely by technical competence -- appropriate choice of research questions and methods, thorough analysis, careful and fair reading of cases or scholarship, logical reasoning, clear writing, etc. -- but also by originality. Easy tenure cases are those in which the work has influenced the field. Have you made a contribution to knowledge? Are people reading your stuff? Talking about it? Writing about it?

If you want to have an easy tenure case, here are some modest suggestions:

  • Build a coherent scholarly identity. Many young law professors choose the topics for their articles haphazardly, based on questions that landed on their desk while practicing or that arose during class preparation or while reading other scholarship. One of the problems of not having PhD-level preparation for a life in legal academe is that many young law scholars are still searching for their identity when they come up for tenure. The result is a file with several articles relating to corporate law, for example, but otherwise having no unifying theme. The problem with producing a series of "one offs" like this is that these rarely have a substantial influence on any field. My advice is that you build a scholarly identity, either by your method (e.g., bring the insights of organizational theory to bear on legal issues) or by your subject-matter focus (e.g., venture capital contracting) or both. As you build your identity, other scholars writing in your area will be forced to account for your views.
  • Ask big questions, but write about questions you can answer. Many young law professors are too narrow and technical, writing articles that might be more appropriate for student comments. If you are still looking for your topics by searching for circuit splits, you might want to reconsider your approach, unless you have a theory of the world that not only resolves the circuit split, but also addresses other issues. The goal now that you are a professor is to advance knowledge, not by the discovery of legal arcana, but by giving the rest of us a better way of understanding big issues. I always comment on the choices of topics in my tenure letters, and I give two big thumbs up to people who show ambition, but there is a risk of being too ambitious. Don't ask, "what is the purpose of life?" unless you have the capacity to answer that question in a new and credible way.
  • Worry first about quality, then about quantity. Too many young law professors seem intent on masking shortcomings in their work through prodigious output. My sense is that this strategy is often successful, since many law schools are incapable of denying tenure to "productive scholars," regardless of the quality of the work. Nevertheless, you had better brace yourself for the review letters, which may not seem kind. My guess is that most young law professors who pursue the torrent strategy could actually make more meaningful contributions if they would just take more time and care with each of their pieces.
  • Plot a trajectory, preferably upward. You should ask big questions, but you don't have to produce all of the answers in your first publication. Remember this guideline: one new idea per article. Think of that first article as the entry point to a series of articles addressing your big question. By the way, it's all right if one or more of your articles is merely descriptive, as long as the description is thorough and original. Young law professors are too eager to reach world-changing proposals, usually based on facts and analysis that cannot withstand the burden being placed upon them.
  • You probably can't afford a publicist, so you will have to market yourself. This piece of advice comes from a very basic insight: if I haven't heard of you before I get the call or the email inviting me to review your work, that's a bad sign for you. I almost always accept invitations to write tenure letters simply because I believe this form of service is important. Rarely am I asked to write a review for someone who is completely unknown to me, but it happens. And it's hard for me to imagine writing a letter about how significantly you have influenced the field if I have never heard of you. Send reprints. Get yourself invited as a guest blogger on a popular law professor blog. Go to conferences. Host your own conference. Invite important figures in your field to give talks at your law school. Find a mentor. Do whatever it takes to get to know the players in your field, and cultivate those relationships.

I could add more bullets, as could others who are on my side of the tenure decision, but you should be sensing a theme that goes something like this: do good work and let people know about it. My experience has been that people who follow that path have a relatively easy time with tenure.

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