Osler's Razor

Cross-posted at Law School Innovation.

[Note to non-lawyer Razor readers: Legal articles are usually published in law reviews, and these law reviews are run by students. It is the students alone who pick the articles to be published. Full disclosure: As a student, I was an editor of the Yale Law Journal, and am aware of the practices at other schools.]

Brian Tamanaha and Brian Leiter, among others, have recently written about the effects of law review placement on legal scholars. Especially in tenure considerations, where an article appears is often considered to be the primary indicator of quality. In the end, this means we are delegating to law students, who have not completed their legal training, who have never worked as an attorney, and who have usually never published anything themselves, the job of deciding who gets tenure.

Consider one law school whose tenure requirement is that the tenure applicant have published three articles, two of which appear in top-25 law reviews. Publishing three articles is not the hard part of that equation-- rather, the real challenge is getting the students at one of those top 25 schools to publish two of them. This is particularly true where the professor is not on the faculty at one of those top 25 schools, because letterhead matters in the initial screening process. The truth is, there will be some play in other areas of tenure consideration (ie, fair-to-poor teaching evaluations can be forgiven, the utter absence of service to the community won't be a stopper), so if the applicant produces those two top-25 articles, she will often get tenure.

Thus, the selection of tenured faculty is left primarily in the hands of students at other schools. Viewed objectively, this is a crazy system. It does have its merits, I suppose, the primary one being that it saves those voting on tenure the hard work of actually reading the articles written by the tenure candidate.

Aside from being a genuinely strange way to pick permanent faculty, this delegation of tenure decisions to students at other schools stifles innovation. The goal of those seeking tenure becomes getting the attention of those students, rather than actual decision makers-- judges, lawyers, other law professors, and legislators-- and these authors pick topics that will most likely appeal to those students.

I'm happy to say that Baylor Law does not have such a requirement, but there have been times that we have been pressured to adopt such a standard. We live in a society that too often seeks objective measures easily gotten, but the fabric of these objective standards is sometimes woven of nothing more than laziness.