Se7enth heaven

"GrumpyLaw"? Hardly. Unwarranted name-calling aside ☺ ☺ ☺ , Geoffrey Rapp deserves the highest praise for his Prawfsblawg post on the reasons that some tenured law professors give for not writing. As Lynn Baker once told me, joining issue is the highest form of intellectual flattery. So here goes. . . .

Geoffrey focuses much needed attention on the motivations of tenured law professors who do not write. Evidently treating a Jeff Harrison post on the in loco parentis theory of deaning as representative of all of us "folks at GrumpylawMoneylaw," Geoffrey rejects the view "that non-writers are thieves who could easily be brought into the scholarly fold by an aggressive dean or post-tenure review." Instead, Geoffrey identifies four rationalizations for not writing:

1. I have nothing to say that would reinvent my field.
2. No one will read it anyway.
3. I object to student-edited law reviews.
4. I get more satisfaction out of service and teaching.

Geoff persuasively refutes the first three rationalizations. The archaic insistence on "battleship" articles privileges purported paradigm-shifting and intellectual hedgehoggery in a discipline where normal science and multifaceted foxes enjoy plenty of room. Like Snow White, academic favor smiles on all types of scholars: Sleepy, Dopey, even Grumpy. So you're a dwarf. It doesn't matter — there are plenty of ideas to be mined. Off to work you go.


Besides, who knows where the next great idea will come from or even how long it will take for other scholars to recognize its significance? Mendel's work on genetics lay fallow for decades; string theory won no adherents when it was first expounded. And what exactly is wrong with normal science, the straightforward application of known principles in pursuit of real answers to significant problems? With a brief essay published (so far) solely in electronic forums, John Duffy is about to bring down a federal statute, no fewer than 46 federal judicial appointments, and millions of dollars in patent litigation. You don't need theoretical brilliance, a big audience, or student editors to have a great impact or, for that matter, a satisfying scholarly career.

As Paul Caron realized, Geoffrey's most aggressive claim consists of a complaint about the coarseness of student-edited law reviews (whose significance he paradoxically downplays):

[I]f the reason some don't write is because of how they feel they are treated by law reviews, maybe we as teachers and advisers of student law reviews need to do a better job of reminding them that the way they reject authors can have real effects. We should encourage them to process pieces in the way they would want the products of their own hard labor to be judged, and to treat authors — even those who submit pieces editors find lame — with respect.

I demur. The fault, dear Geoffrey, lies not in our students, but in ourselves, in what we want and how hard we're willing to work to get it. In the rest of this post, I will describe, to the best of my ability, why some professors don't write. I will then offer some thoughts on what, if anything, the legal academy as a whole should do in response.

Read the rest of this post . . . .

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The commenters on Geoffrey's post, I think, offer complete and convincing explanations for the failure to write. David Fagundes is especially persuasive. One class of nonwriters is defined according to a generational difference in law school faculty hiring that presumably is fading away. Once upon a time, but arguably no longer, law schools hired at least some professors without expecting them to write scholarship. As one commenter observed, the academy's "shift in the direction of universal expectations of scholarship amounts to changing the rules mid-game." Professors hired without scholarly expectations simply aren't going to acquire, deep into their careers, a burning desire to write.

The same can be said, I think, of the supposedly "more puzzling" category of professors "who used to write and have now stopped." Indeed, as David Fagundes observes, it's a straightforward story:

You've got tenure, so you can't get fired for not writing. You don't get paid for your articles, so there's no financial incentive. You probably aren't going to have the influence and fame of Holmes or Posner, so the non-financial rewards in terms of fame are limited. So instead of spending the summer slaving over an article, why not be on a beach in Bimini? . . . [T]he intrinsic pleasure and satisfaction that legal writing brings many of us is not a reaction universally shared. And because the post-tenure incentives for writing are fairly attenuated, . . . someone who lacked that sense of intrinsic satisfaction in legal writing [can] rationally decide to focus on other professional and personal priorities.

To sum up: People don't write because they'd rather do other things. Even people hired on an expectation that they should write might prefer to work — or loaf — in other ways. And since we really don't make them write, people who would rather do other things besides writing . . . do other things.

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Well, what if anything should academia do about professors who don't write? Short of embracing the impracticable, even politically suicidal, "GrumpyLaw" prescription of subjecting all nonwriters to post-tenure review as thieves and scoundrels, I can recognize at least four distinct but not mutually exclusive approaches:

1. Do nothing. At the very least, do nothing drastic. Ask nonwriters to focus on teaching, advising, outreach, and university-wide committees.

Again, I demur — well, at least in part. I am hardly staking out controversial turf: the entire academy insists on scholarly performance as a condition of tenure. Although the experiment with for-profit legal education still remains in its infancy, I suspect that even schools whose primary raison d'être is to usher students from bachelor's degree to bar exam with utmost efficiency will want their faculty members to write. It's well-nigh impossible to stay current without writing something.

That said, it is the better part of administrative wisdom to leverage the better instincts of human nature. If someone does have more time and energy for nonscholarly chores around the law school, because she or he has forsworn all scholarship, then by all means assign this colleague to productive work. Everyone likes feeling valued for something.

2. Issue nonwriters a free pass, to the extent they were hired without scholarly expectations.

This approach assigns maximum value to reliance interests and to settled expectations. It's an argument that I instinctively find unpersuasive even when applied to individual human beings and downright odious when applied to business organizations. Things change, and you always knew they could — and would. That was then; this is now. But reasonable minds do disagree, and in this instance the deeply rooted conservatism of the academy — ours after all is a profession comprised of people who eagerly sacrifice pay for lifelong job security and then, more often than not, act like intellectual cowards behind cover of tenure — would undoubtedly prevail over all contrary considerations.

Here's the upshot: Once upon a time we hired law professors without asking them to write. Of late we've stopped doing that. At moments like these, those of us on the winning side of a generational divide should draw solace (and inspiration) from then-Justice William Rehnquist's dissent in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985). We're younger, and our time will eventually come, if only we can avoid getting fired or blowing a cardiac gasket in the meanwhile.

3. Increase symbolic rewards for writing.

It bears remembering that academia is (mostly) a not-for-profit endeavor and that big-ticket payouts to individual faculty members — monster salaries, nominal teaching schedules, slush funds for centers and junkets — rarely if ever deliver real institutional value, at least relative to other things money can buy. (Aside: this is especially true when academic rock stars arrive at a university as matched pairs.) And nonwriters know, better than their writing counterparts often imagine, what they're missing: a rougher path to promotion, fewer trips to fun conferences and symposiums, lower levels of esteem among one's peers at home and afield. But there are ways to reward people for being intellectually curious and for acting on it. Not all of them will break your budget.

4. Work harder to avoid hiring (future) nonwriters in the first place.

This is simply the managerial equivalent of normal science: apply MoneyLaw principles on a day-to-day basis, taking care to remember that reviewing forms from the Faculty Appointments Register and scouting prospects at the AALS hiring conference are day-to-day chores. Hire no one who hasn't written something before entering the teaching market. Stress performance, not pedigree. And pay very, very close attention to candidates who seek precise numerical definitions of local thresholds for tenure. People who fret about the number of articles, pages, or words needed to clinch tenure, as if they were Democratic Party Convention delegates, tend to try to write precisely the number of articles, pages, or words they imagine to suffice for tenure. Those who succeed usually do secure tenure. And thenceforth they write like Poe's Raven: "Nevermore!"

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Depictions of the seven deadly sins, from Hieronymus Bosch, The Seven Deadly Sins (ca. 1485), to Gilligan's Island and Se7en. Each image may be clicked for an explanation; the theme to Gilligan's Island is embedded as a multimedia bonus from the Jurisdynamics Network.

It should be clear by now that I endorse, with wildly variable levels of enthusiasm and significant misgivings, all four of the strategies I have outlined. I've expended great thought and effort on this whole exercise because I realized, perhaps only after I began formulating a response to Geoffrey Rapp, that the task of motivating senior faculty members to write goes to the moral heart of higher education.

Scholarship is a core responsibility held, even cherished, by most members of the academy. Indeed, the best among us do not view it as a duty, but as a privilege. If higher education were to identify its gravest sins, the complete failure to produce scholarship surely would rank among the top seven.

Here at MoneyLaw and elsewhere, I have enthusiastically endorsed Hanlon's razor, the folk aphorism that reminds us: Never attribute to malice that which can be adequately explained by stupidity. I am now prepared to embrace an even more expansive version of Hanlon's razor. Never attribute to active sin that which can be adequately explained by inertia.

Inertia, of course, bears a striking resemblance to sloth. And sloth — alongside pride, envy, greed, gluttony, lust, and wrath — has numbered among Christianity's seven deadly sins since the Middle Ages. The definition of sloth has varied over time, however. What we now call sloth was once regarded as despair, a condition of hopeless torpor now regarded as distinct from laziness for its own sake and regarded as worthy of designation as a separate deadly sin in its own right. (Go ahead and Google the search string, despair eighth deadly sin.)

The easiest of the deadly sins to commit, in law and in academia as in the rest of life, is sloth. It often consists solely of doing what comes naturally — which is to say, nothing. Among sins, sloth reigns supreme, because this may be the lone principle of Christian metaphysics backed by a fundamental law of classical physics. Moreover, if I have learned anything about the dark art of academic administration, it is the deep and unmovable hierarchy among the deadly sins of this enterprise. It does little good to fight sloth with wrath, because inertia almost always overcomes countervailing motion. In a field whose material rewards are comparatively modest, greed is a similarly weak motivator. And as exasperating as academic sloth can be, I would sooner have a colleague who is a well-intentioned scholarly nonentity than ever again work with someone so benighted as to deserve the title of the worst law professor in America.