In my last blog post, I wrote about my paper with Jonathan Masur and Kyle Rozema on Rethinking Law School Tenure Standards. I wanted to say more about what we can learn about law professors’ research records using the data from that paper.
To study law school tenure standards, we collected a lot of data on the identities of law professors and their research records. We gathered this information from two main sources.
For data on the identities of law professors, we used the Association of American Law Schools’ annual lists of law professors to generate a panel of law professors at top 100 law schools since 1970. Our goal was to study law professors that received tenure, so we excluded non-tenure track faculty. We also excluded professors that were granted tenure after 2007. (Why 2007? We wanted 10 years of post-tenure data for every professor, and we started this project in early 2018.)
For data on law professors’ research records, we used data from HeinOnline. From HeinOnline, we were able to gather information about each publication, including the journal and year of publication. Importantly, we were also able to gather information on every citation an article has received from another article in the HeinOnline database.[1]
At this point, we have the data to explore trends in research productivity across time and across law schools. I’ll just mention two facts that come out of our data.
First, law professors’ pre-tenure research productivity has clearly increased over time. Panel A of the above figure shows that the cohort that received tenure in 1970 had published roughly 3 law review articles by the time they were up for tenure; but the cohort that received tenure in 2007 published roughly 6 law review articles by the time they were up for tenure. In other words, the number of law review articles law professors published before tenure doubled between 1970 and 2007.
This increased productivity continued after tenure. Panel B shows the number of law articles that each tenure cohort published in the ten years after tenure. In 1970, law professors published about 4 law review articles in the decade after tenure; by 2007, it was about 8 law review articles.
These trends obviously mean that standards have changed, but they also have some implications for how to think about tenure decisions. Notably, schools now have a lot more information about the quality of someone’s research when making tenure decisions, which means that if they want to, they could make better decisions. Additionally, given that professors are now writing more after tenure on average, the costs of unproductive faculty have increased over time.
Second, there are great people working across the range of law schools. The above figure plots the distributions of the within-tenure cohort percentile of law professor citations, but broken out for three groups of law school rank. Each distribution is broken down by decile, but the top decile is broken into two groups (the 90th to 95th percentile and the 95th to 99th percentile) and the bottom decile is broken into two groups (the 10th to 5th percentile and the 5th to the 1st percentile).
So what does this figure show? It shows that of a given tenure cohort (e.g., the people granted tenure in say 1995), the professors at top law schools are more likely to be in the top of the distribution of their tenure cohort. But this pattern is not perfect. There are people in law schools ranked 50-100 that are in the top of their tenure cohort compared to peers at top law schools, and there are people at top law schools that are at the bottom of their cohort.
Why does this matter? It means that there are absolutely fantastic lateral candidates that could be stars at any faculty working across the range of law schools. The problem is that our current tenure equilibriums don’t create enough opportunities for the best people to move schools if they want to.
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[1] HeinOnline does not include information on every academic article or book that a law professor might write, so it’s not a perfect source. We talk about this more in the paper, Jonathan Masur and I have separately written about how relying exclusively on HeinOnline for rankings or evaluations could distort law school rankings and labor markets.