The Tenure Issue: How You View it Depends Upon Where You Sit

Brian Tamanaha

I hesitate to weigh in on the tenure issue again (see my earlier post raising questions about tenure), as I do not relish being called silly or ignorant, but I feel compelled to defend those (including a Dean) who advised Dean Chemerinsky to consider starting his new law school without offering tenure. In retort, Brian Leiter asked Paul Caron whether he would give up his tenure.

Leiter might gain some understanding of the anti-tenure side by learning a bit about how the other three-quarters lives.

Leiter is in the major leagues, the top-twenty, elite law schools of this country. Many law professors who raise objections to tenure, it is no coincidence, work in less luxurious circumstances, in double A and triple A law schools. As I have described in previous posts, it is an open secret that a sharp divide exists between elite and non-elite law schools, especially in the job prospects of their graduates and in the wealth of the institutions. Elite law schools have endowments in the hundreds of millions of dollars (or more), while many non-elite law schools have endowments in the 10 to 30 million dollars range. A majority of graduates from elite law schools work in corporate law firms with starting salaries of $160,000 plus, while only the top five percent or so of students from most non-elite schools get these jobs.

The more money you have, the more top faculty you can recruit (lateral hiring at top schools has exploded in recent years). Elite laws schools are thus able to recruit and retain highly productive scholars; any faculty losses tend to be to other elite schools. The rich get richer.

Every school has professors whose most productive days were in the past, of course, but an elite school with 40-60 professors, most of whom are working very hard, suffers no serious or noticeable consequence from these people.

Turning to the non-elite law schools, one sees a very different picture (though not at every such school). Many professors at these schools work very hard, and do outstanding work (although elite law schools constantly poach their top scholars). It’s just a matter of numbers. Non-elite schools have less money. The faculty is smaller. The group of under-performing faculty tends to be larger (as a percentage of the whole). It is a greater burden for the non-elite schools to bear, and some are suffering under the weight of this burden.

Of course tenure has an important benefit: we can say and write what we like without concern about losing our jobs. But tenure also has a cost: it is almost impossible to fire people who do nothing more than teach—about 6 hours a week—yet draw full paychecks. And without this threat, it is also not easy to motivate them to work harder.

Sure, deans can crack down on these people, but few do—it would quickly get ugly, with law suits and settlements, and many on the faculty would feel threatened (bye, bye Dean). Increasingly, the only way out for these law schools is to offer expensive buy outs, but that only works for people near retirement age.

Sure, schools can do a better job of denying tenure to people who are marginal, but that does not solve the problem of people losing motivation or productivity over time.

It comes down to the costs and benefits of tenure. For elite schools, the cost is relatively low (compared to their resources) and the benefits are high. For non-elite schools, the same high benefit accrues, but the relative cost is high as well.

Thus, it makes sense that people at non-elite schools might view tenure differently. There is nothing sacrosanct about tenure, although it was hard won and has an important positive legacy in the history of American academia. Tenure serves a purpose, and, at least for non-elite schools, there are good reasons to explore less costly ways to achieve this purpose: long term contracts with automatic renewal if minimum productivity standards are met, employment provisions that prohibit termination for the expression of views, and so forth.

Leiter suggests that Chemerinksy would be doomed if he tried to build a law school without tenure because he wouldn’t be able to hire anyone good without paying them three times the salary. I don’t buy it. Many hard-working, productive professors don’t worry about tenure. The supply of talented people trying to get into law teaching is huge. Even talented laterals would make the move if the school developed a culture of quality and hard work. I would take the job.

Leiter might assert that any talented professor who initially takes the job would leave as soon as a better offer came along. Perhaps, although that happens now anyway, and I doubt that "better offer" would come down to an offer of "tenure."

Oh yeah, to respond in advance to the inevitable retort, I have no problem giving up tenure, assuming it is replaced with some other protection for saying and writing without fear of retaliation. I don’t know how one goes about resigning tenure, but I’ll let my Dean know.
Posted 11:51 AM by Brian Tamanaha [link]