I want to combine a couple of recent topics of discussion: a) Erwin Chemerinsky’s Michigan Law Review essay (which Bill commented on) and b) Cardozo Law Review’s launch of De Novo, its on-line supplement intended to provide an even broader forum for short scholarship, including c) a fun forthcoming piece of advice for a new law professor by my colleague, Matthew Mirow.
The question is should we do with these new scholarly forums and how should they be worked into out scholarly expectations and our tenure standards? And Chemerinsky’s discussion of the legal scholarly enterprise is a good jumping off point. A couple of sub-questions and sub-issues presented here.
First, Chemerinsky defines scholarship as that which makes an important, original contribution that add substantially to the body of legal literature. Form and audience are less controlling, although Chemerinsky does suggest that blog posts and op-eds do not qualify. But journals such as De Novo or Northwestern Colloquy or Yale’s Pocket Part are doing something different. They are publishing short pieces (3000-5000 words, shorter even than the typical law review “essay”), although longer and more substantial and substantially researched than most op-eds or columns and most blog posts. And important, original ideas can be presented and argued in this forum. Or at least similar ideas from larger pieces can be presented in a different form, with a different emphasis, for a different audience.
Second, should junior folks be encouraged to write for these forums? These pieces are relatively easy to write in a short period of time and the lag from acceptance to publication may be a matter of weeks. So a prawf can go from idea to publication in two-three months, in a forum that may reach a fairly wide audience. If the rule is to always be writing and involved in the conversation, it seems to me this is an easy way to get some publications under one’s belt and to get your name and your ideas out there.
Third, how does this affect what we all should be doing with our time at any career stage? In the old world, it was all about lengthy law review articles that were submitted at one of two set points during the year and that typically took six to 12 months, acceptance to publication. And there really were no other options–no alternative outlets or forums, no alternative forms of scholarship. But on-line supplements alter that. So while big (although not-quite-as-big) law review articles remains the coin of the realm, there are other outlets and options. So to what extent should we make those other options part of our annual scholarly plan–one big article and one essay or reply for on-line placement each academic year?
Finally, how does this get written into the tenure standard? At most schools, the statutory minimum is written in terms of big law review articles. At FIU, the illustrative standard (not intended as a necessary-and-sufficient quantification) is “three substantial scholarly works” by the start of the sixth year. Should that standard be revised to recognize the new scholarly reality? Should it speak not only of substantial scholarly works, but of “other” scholarly writing, which might include electronic supplements. Should they be part of the body of scholarly work that is sent to outside reviewers? This is not to suggest that a junior faculty member who goes up with three 3000-word essays for supplements should get tenure; only that she she should get credit for writing such essays in addition to her three or four substantial scholarly works. Tenure should be based on the overall body of work; can and should we expect that body to include some pieces intended for on-line supplements and other scholarly places? And should we write formal standards accordingly?
Posted by Howard Wasserman on May 11, 2009 at 07:09 AM
Comments
Howard,
Thanks for the response. I’ve notice that a lot of scholars put their publications in online supplements in their official list of publications, so I take it that most scholars are making the judgments that they are in fact considered scholarship. I would think most schools would count them like they would count a book review or a solicited response article: As a small fraction of an article, withe the fraction varying on the school.
Posted by: Orin Kerr | May 11, 2009 4:30:09 PM
Orin:
Perhaps somewhat derivative. But I would suggest a subtle (if not downright ethereal) distinction. Under Chemerinsky’s definition, a blog post (or even series) is not scholarship, but the sort of short essays that appear on-line might be. I think they ask different questions.
I always understood the “Should I blog-while-untenured” debate to focus on whether to engage in writing things that will not be considered or evaluated in the review process (beyond my being able to say that I am continuously engaged in writing about law), that might be viewed by some old-guard faculty as a waste of time, and that might, in the uninhibited, unedited, unsupervised world of blogs, cause me to say something that might get me in trouble and that might be held against me (isn’t this supposedly what hurt Drezner?).
The question here takes as its starting point that on-line supplement pieces can count as *something* for purposes of evaluation (what gets sent for outside review, what committee members read). Then the question becomes what it counts for and what we should advise junior members to do with it.
Your broader point–tenure is so easy to get and so readily gotten that it does not matter because most candidates go up with more than enough–may be true. But a lot depends on the particular P&T committee at the particular school and whether it sees this as a rule (3 substantial scholarly works == tenure) or a standard (considering the whole body of work). In the latter situation, if I have a six-year body that includes 5 large articles and a couple of on-line pieces, I want the on-line pieces thrown into the evaluative mix (as I would with a book review or a more traditional law review essay, etc.). Again, my 5 large articles probably render this a moot point, but it is worth hashing out in advance of the tenure-review process.
Posted by: Howard Wasserman | May 11, 2009 3:27:36 PM
Howard,
Isn’t this a derivative of the quesion whether junior people should blog? It seems similar to me.
As for the tenure standard, given that tenure rates are something like 95% or higher at U.S. law schools, I’m not entirely sure why it matters what the tenure standard is. (If there is someone who has written lots online but hasn’t quite hit the usual standard of big articles, and who insists on coming up for tenure based on the online materials anyway, then it would be a real issue: I don’t know how much of an issue it is otherwise.)
Posted by: Orin Kerr | May 11, 2009 3:03:12 PM
What strikes me as odd is that I expect many schools would view favorably a professor’s publication in the Yale or Northwestern on-line journals, but would not similarly favor a piece in a state bar journal or a practitioner-oriented outlet like many ABA periodicals. Yet, for professors who teach in areas such as civil procedure, evidence, insurance, tax and so on, a piece in a state bar journal might favorably influence the law in some way (as do some law review pieces, of course), or would at least be seen as positive by many practitioners from whom the school would like support. In short, on-line journals do little more than perpetuate the gulf between law school faculties and the practicing bar.
Posted by: Doug Richmond | May 11, 2009 7:40:00 AM