Tuesday, May 08, 2007

Straight Talk About Tenure

Brian Tamanaha

What would happen to a full time (40 hour a week) employee who shirks much of the job and actually expends only about 20 hours a week on job related activities? The employee shows up at the office a couple of days each week, and (implicitly) claims to be working at home the rest of the time, but has little to show for it.

In just about every job in America, an employee with these work habits would be fired. But not law professors with tenure. As long as they show up to teach their classes, they can't be touched, at least not without a nasty battle that Deans rarely undertake. Schools may try to wring more productivity out of these minimal perfomers with committee assignments, but that's about it. Desperate schools have resorted to offering lucrative buyouts to entice these professors to leave, but the job is so easy that they have little reason to accept. Year after year, these professors take home their $150,000-plus for working about 20-25 hours a week, 28 weeks a year. It's a great gig! And everyone else at the school pays (especially students footing the bill).

I raise this unpleasant subject because the American Law Deans Association is apparently pushing a proposal to get the American Bar Association to stop imposing tenure requirements on law schools (from Instapundit). The proposal focuses on tenure requirements (or their equivalent) for clinical professors, but its implications are broader. No doubt this effort will raise an outcry of protest from many in the legal academy in the name of preserving academic freedom.

This important issue should be examined with complete candor. Tenure is extraordinarily powerful job protection. Every now and then it functions for the purpose for which it is designed and justified: to free an academic to express controversial views. And that is essential. But most of the time it functions to confer immunity on professors to work as little as they please beyond teaching their assigned classes. And that imposes a high cost on law schools (in money as well as institutional productivity and morale).

Is there some way to preserve the good that tenure obtains without the bad? If not, perhaps it is time consider the unthinkable: phasing out tenure for everyone, moving to long term contracts with protections against dismissal for the expression of opinions. Short of that, perhaps the best alternative is to once again permit law schools to impose mandatory retirement (pick the age). This would allow institutions to free themselves of shirkers (without the further insult and cost of paying them to leave), while retaining productive professors. These proposals are against our self interest, but that should not be the reason they get shot down (I'm not optimistic).

I don't pretend to know the answer to this problem. And perceptions of its magnitude will differ with each institution (in accordance with the number of underperforming professors), but I hope that discussions of this touchy issue will not be shouted down with cries of academic freedom.

[Al Brophy has persuaded me, for the purposes of the discussion, to increase the estimated hours I use for minimal performers, which I have done above.]


What exactly is the problem that getting rid of tenure is supposed to solve? Is it really about extreme cases of shirking? If so, then perhaps tenure contracts could be modified to include some sort of clause allowing more straightforward dismissal proceedings in the case of non-productive faculty.

I never have a clear sense of what the problem is for which getting rid of tenure is supposed to be the solution.

And I worry that the real "problem" being addressed (by the current ABA discussion) is that some people don't think clinical professors are real professors who need/deserve academic freedom just as much as the non-clinical faculty.


The issue of "productivity" is exactly why tenure exists. Rather than focusing on getting as many publications as possible, which requires writing the kinds of articles journals like, and ideally writing them in as little time as possible. (I.e. making small steps for each article, compared with previous work, so that each article requires relatively little actual thinking.)

Exactly because it is hard to write a good performance contract with an academic, for lack of adequated performance measures, universities reward those who have proven that they can work hard (publish a lot) and are capable of a minimum of originality with tenure, so that they can spend three years writing a book if that's what they think is useful. In my mind, nothing short of tenure will achieve this goal, but it clearly requires a certain amount of trust in the work ethic of the professor...

The tenure system in law schools is locked into the university as a whole. You won't be able to get rid of tenure in a law school without arousing the ire of the entire faculty. The problems of shirking are certainly not limited to law school faculty either--there are many , many faculty who turn off the research pump (or at least dial it down dramatically) once the tenure is achieved?

Another question: for professors at state schools, isn't tenure a property right? Therefore, it would be impossible to eliminate it without some huge buyouts.

More fundamentally, what is the point of faculty? Is it more important that they teach or that they write? If we are solely interested in education, perhaps the best solution is to get rid of tenure, reduce the number of faculty so that only the best (hard to quantify, I know) remain, and give them an increased teaching load in exchange for not doing research.

Well, in Biology tenure is less of a problem, since at most universities and medical schools your salary is directly tied to grant income - say 50% of your salary must be self-funded.

I would tread lightly on this subject. If academics are placed under the same conditions as industry, you'll get similar results. Namely, productivity measures driving the academy, where those measures are directly tied to the success of the bosses (rather than say, feeding the ego of intellectuals). Basically, academia will quickly turn into an identical analogue to business, defeating the purpose of it's existence.

Why have a university in that case? Just turn it over to the market, and have free-market diploma mills.

I agree this is an important and under-discussed topic.

Among other things, it implicates questions regarding what it is exactly that law schools are supposed to be doing. To the extent that law schools are conceptualized as places where people go to be trained to enter a licensed profession, then the academic tenure model of the liberal arts university makes little sense.

Furthermore, I would argue that for a variety of reasons law schools create special problems for the institution of tenure. For one thing, salaries are very high (comparitively speaking), and formal work loads are often low. For another, many people go into law teaching specifically because they don't want to practice law, not because they have a particular vocation for the academic life. This leads to all sorts of dysfunctions, bad faith, etc.

One thing I'd suggest is that what needs reforming is not so much the formal institution of tenure as the cultural context in which it's deployed. Under the letter of the existing law, at most schools you could actually fire several people who deserve to be fired, but a combination of self-interest, cowardice, and inertia conspires to create a kind of cultural subtext which leads people to believe that you pretty much have to kill somebody to get fired once you've been tenured.

Anyway it's a great issue, and I'm really glad to see Brian raise it here.

A friend of mine was on the UMich campuswide P&T committee some years ago, when times were bad and departments were threatened with closing. According to him, all tenure means is that you can't be stopped from teaching; it says nothing about whether you have to get PAID for it.

So it's not as if there are no checks on an individual's productivity. where is it written that salaries have to increase from year to year?

With regard to law schools in general, I'm glad I spent my academic career in the social and statistical sciences. Having to read a gazillion papers at the end of the semester, with no TA to shoulder the brunt of the work, would have been torture to me!

Tenure in law faculties is interrelated with other social sciences, and provides one of the treasures which informs government and politics, as well as training youth. I am sure deans will have other measures to suggest rather than draconian tenurelessness for law profs. Removing a possibility of tenure for this trove of experts would infiltrate academia, and soon 1st amendment protections elsewhere would follow this illadvised path. How about schools of journalism, as well, to flush this ploy into the open; remove the experimental thinkers and deprive writers and chroniclers of any incentive to speak candidly. One supposes tenure would continue to exist for schools of theology and philosophy, as abstract sciences.

Some documentation of specific instances of abuse would be interesting, but the deans likely would prefer this remain confidential personnel protected information. In this world $150.k is but modest remuneration.

Is there some way to preserve the good that tenure obtains without the bad?

Add more requirements in order to maintain tenure? Still, I'm not sure why hours worked is necessarily a good measure of the performance of a professor.

I think the debate would be well served by a reminder about the purpose of tenure. Tenure is a job protection that is, in theory, reserved for academics or at least those who’s work is thought to involve very serious and important thinking, like judges. These great minds, in an effort to encourage them to liberate as much useful knowledge as possible during their lifetimes, are given tenure to protect their ability to speak freely.

The institution of tenure doesn’t need reform. What may need reform is how tenure is given. Perhaps tenure should be reserved for those professors who are already the most productive, prolific, and brilliant at their institution or in their field. I may be wrong, but I find it hard to believe that hard-driving great thinkers, when given tenure become lazy. I suspect instead that tenure committees have become accustomed to giving tenure as a formality to all who have reached the requisite age, to prevent the awkward situation that ensues when a group of people tells one of their peers that he/she can’t join the club.

Stop giving it away and maybe it’ll stop being taken for granted.

-Geoff Rapoport

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Brian, I think there is a fallacy in this:

“Every now and then it [tenure] functions for the purpose for which it is designed and justified: to free an academic to express controversial views. And that is essential. But most of the time it functions to confer immunity on professors to work as little as they please beyond teaching their assigned classes.”

The reason that tenure appears to function to protect academic freedom only “every now and then” is because it does a good job of protecting academic freedom, so that enemies of academic freedom don’t even bother assaulting it except in a few unusual, perfect-storm cases such as Ward Churchill. But once tenure is abolished, I believe the assaults would come fast and furious.

The group most in need of tenure protection of their academic freedom is not law professors, nor left- or right-wingers in the humanities or social sciences. It is natural scientists – particularly in public universities – working on health and safety issues pertaining to Big Pharma, Big Oil, Big Anyone. It takes little imagination to see that, with billions of dollars at stake, major industries would pressure boards of trustees to fire anyone studying bad health effects of (say) Vioxx, or petroleum emissions. Private universities might be somewhat more immune from special-interest pressure, but they too could expect economic clout to be wielded to silence their pesky scientists.

But set scientists aside, and turn to law professors. Here, the test case of what happens without academic freedom is the campaign against law school environmental clinics – at the University of Pittsburgh, the University of Oregon, the Universities of West Virginia and Wyoming, and above all Tulane. (I wrote about this a few years ago in Taking Out the Adversary: The Assault on Progressive Public Interest Lawyers, 91 Cal. L. Rev. 209, 236-40 (2003).) Each clinic began projects that gored oxen of local business interests, and each was subjected to a withering campaign to destroy it or make its work more difficult.

I don’t disagree with you that some law professors take advantage of tenure to cut their responsibilities to a minimum. The way to handle that is through merit raises (or rather, their absence) – if the dean sees that the professor is an exploiter. Or by asking those who do no research to teach additional sections, or take on heightened committee work or administrative assignments.

I heartily recommend Andrew Oldenquist’s sensible and witty essay “Tenure: Academe’s Peculiar Institution,” in Steven M. Cahn’s collection Morality, Responsibility, and the University (Temple University Press).

One so far unmentioned problem with getting rid of tenure: how will its abolition be paid for? Probably through higher tuition.

Abolishing tenure will cost money because law professors, like all employees, are compensated through a combination of monetary and non-monetary rewards. One of the non-monetary rewards is exceptional job security; people will give up an awful lot in monetary rewards for that. If you diminish the job security without at the same time changing the relative bargaining power of professors and law schools, professors are going to demand - and get - more money (or some other compensating benefit) in exchange. Someone is going to have to pay for this.

--Don Clarke

I think that you are missing the main point of tenure entirely. Colleges and universities suffer from the "tragedy of the commons" -- no one owns them, and so no one has the appropriate ownership incentives to conserve and care for the institutional assets. The most valuable asset of the institution being its intellectual reputation. In state-run colleges the government "owns" them, and we reflexively look for the common pool problems whenever the government is involved, but private institutions have exactly the same problems. Trustees don't own the institution -- even their name tells you that how diligently they carry out their duties is governed by their trustworthiness not their enlightened self-interest. College presidents now have average terms of like 5 years, so they have little incentive to take any long-term interest in the institution. Indeed the academic reputations of the places that a college president went to college and graduate school are probably more important to the president's reputation than the reputation of the institution that he/she presides over.

I maintain that tenured faculty are similar to serfs -- they are "owned" by the institution. Their tenure has no value outside of the institution that gives them tenure -- if it shuts down, or becomes intolerable, or loses its academic integrity and becomes a degree mill, then the tenured professor becomes just another entry-level candidate applying for jobs. Maybe offered 1-3 years of constructive credit towards tenure in the next place, or maybe not. Certainly it's an artificial construct, not as effective as real ownership, but it is pretty effective. The academic reputation to the institution is the sum of the academic reputations of it's faculty, both current and historical, while the academic reputations of current faculty is partially a function of the institution's reputation. By shackling the faculty to the institution with tenure, the faculty's interests in maintaining the institution's reputation become more closely aligned. They must be more diligent in who they hire, promote and tenure, and more intolerant of slackers, because their own reputations are on the line. And if you are a tenured faculty member and there are other tenured faculty who are slacking off, then you are going to have to pick up the slack and do those people's jobs as well as your own in order to protect your own reputation. You can't just find another job and walk away without giving up all of your accumulated institutional capital.

I actually agree with most of what Brian has said here, but I think he misses the real point of the ALDA proposal. A genuine discussion among the most powerful figures in legal academia of whether (or perhaps in what particular ways) current tenure policies and practices are worthwhile would be a really interesting and worthwhile endeavor. I for one agree with Brian that as currently configured, tenure policies and practices seem to promote a lot of shirking.

But I am doubtful that ALDA actually aims to attack tenure overall or that a broad, useful discussion of the shirking problems will result from ALDA's attack. For one thing, as Don points out, abolishing tenure across the board would likely cost additional money or in little savings. (In the short run, anyway, and perhaps even in the long run.) Also, as Zathras points out, at many universities, efforts to limit or get rid of tenure for law profs would face opposition university-wide. And in any case, wouldn't the tenured law profs be the ones with the most power to actually change promotion and tenure policies in many places?

So, no broad attack on tenure for legal academics is going to happen. Instead, ALDA just aims to halt the progress that clinicians and legal writing professors (God forbid! "Who next, the janitors?") have been making in getting the right to job security equivalent to tenure.

Given what passes for legal scholarship these days (was it ever any different?), there may be something to be said for a system that depresses output.

Brian -- I think you are underanalyzing the purposes of tenure. Compare it to partnership in a law firm (something I'm much more familiar with than tenure). In many firms, partners don't get pushed out as long as they produce a relatively minimal dollar amount per year. Producing that amount takes a lot less than 40 hours per week. Thus, there is an opportunity for shirking. The shirking partner will likely see his share of the profits cut, but he will be left alone unless he really blows off the job.

Why do firms employ a model that permits shirking? I think it's because the freedom accorded to partners is an important incentive to keep associates working hard for 10 years. It could be that, without shirking among some partners, firms would have to pay associates more to get the same productivity out of them -- more than the shirking currently costs.

Maybe the economics of tenure are similar.

The ABA issue doesn't depend on whether tenure is a good idea, in and of itself, does it? Tenure might be a great thing, but the issue here is whether the ABA should *mandate* that a school provide tenure for accreditation, which is often required before students can take the bar exam.

That's a very different question from whether tenure is a good institution. It's about whether the ABA and bar examiners should function as a cartel that keeps out potential lawyers.

As someone without tenure who desperately wants it in a few years, take this with a grain of uneducated salt.

It seems to me that there may be creative ways to keep the benefits of tenure while addressing the free riders. Law school teaching salaries are relatively low, and, in my view, that is something of a good thing. The greatest job in the world has its own rewards that are not financial and that still attract very bright scholars and teachers. But financial incentives can make a difference. Merit increases are an important factor. The possibility of distinguished professorships, university professorships, and named professorships (and others) should induce most tenured faculty members to continue to make productive contributions. For those tenured members who try to increase their pocketbook coffers though outside representation, Deans and Universities can be more vigilant about restricting the time spend on outside work to be more proportional to law school work. Other creative solutions may exist.

True, there will still be free riders. A $150K guaranteed salary for minimal work is just fine for some. But with proper incentives, my guess is that the numbers of true free riders would be very small, even keeping the tenure model.

Here's a great (tongue-in-cheek) solution: have the Dean require those tenured members who do not publish a significant work in a particular year grade the exams of those that do!

Thanks for the comments, everyone. It's a complicated issue, about which I have mixed feelings.

David is correct to note that tenure operates every day to free us express what we like without fear of retribution, even if instances of backlash (like Churchill) are relatively rare.

Several commenters suggest that shirking is not significant problem. I guess the only way to determine this is to look around your own workplace. As I said, it's a touchy issue.

My main point is that the iron clad immunity that tenure provides has both good and bad consequences, and both sides should be considered.

In the end, source of the problem is not tenure, but the failure of deans to deal effectively with minimal performers.

And now that I have said something that may offend fellow professors as well as deans, I will stop.

Scott's tongue in cheek solution has a potentially workable version, it seems to me. 1) required tenured professors to account for their research activities every 3-4 years. Evidence includes publication, of course, but if you're working on something really big and difficult, other evidence can count as well. 2) Those who are determined to be un or underproductive can redesignated as teaching/service faculty, with increased responsibilities in those areas for 2-3 years. After that, you can apply to go back to standard research faculty, but if you're determined to be shirking at the end of the next relevant time period, your teaching and service can be kicked back up.

This could go several different ways, but two possibilities are a) the dual threats of shame and extra work could motivate would-be shirkers, or b) those who aren't feeling especially creative or pruductive at a particular point in their lives could still be fully functioning members of their department during this intellectual downtime without resentment--in fact, their extra teaching could be used to create more research release for productive faculty.

(I expect this proposal would be very unpopular, but less so than phasing out tenure...)

I appreciate the attention that Professor Tamanaha's drawing to this important issue, on which a lot can be (and has been) said.

I'm curious about this statement:
Year after year, these professors take home their $150,000-plus for working about 10-15 hours a week, 28 weeks a year.

How many people in the entire legal academy fit this statement? I'm guessing very few.

This is an amazing array of responses and I intend heto comment on them over on moneylaw. I agree with Al that the 15 hour per week people are fairly rare. On the other hand, the number of 35-40 per week people who are doing things unrelated to the welfare of students or stakeholders is quite large. This makes the post tenure review even stickier.

Without addressing the gargoyle which was FAIR, one lesson I took from it was the economic angst private institutions experience when jawboned by paradoxical legislation. In these Patriot Act times, every increment of inspiration and freedom we can nurture to provide continuity of our constitutional paradigms will provide further hope that our experiment will have continuity as we winnow away the most grievous inroads and begin to ask more creative questions like the ones Sandy Levinson is stirring concerning what the next century of the union might be, and how we ever might approach a more efficiently written and modern foundational document as underlayment for a few more generations to work toward that living goal. There is a mosaic of specializations in academia, but the overarching image of encouraging experiment is priceless; to view that, academics need to set introspective bickering aside. Consider what dilution might occur in amicus work if it were to be more mercenary in an untenured world. The theater surrounding the report last year on presidential signing statements developed and passed after vigorous argument at ABA was an important exercise of that melting pot which is ABA, although current leadership in the executive branch has ridiculed that substantial and quite politicized report, criticized its timing, and demurred from following its measured suggestions. I very much appreciated the comment regarding various brands of science in the thread above; I might read prof Jim Hansen's amicus summary of global climate change theory from MA v EPA once again, to reinforce the glimmering: that there might be a way yet science can share leadership in the progress we need to make to continue responsible stewardship of our place in which we live.

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