Friday, October 12, 2007

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.


I had the same views about tenure when I taught at San Diego, so the ad hominem is neither here nor there.

The give-away is your last line: you'd give up tenure if there were "some other protection for saying and writing without fear of retaliation." So you concede (unlike the anonymous Dean) that tenure does do that. But what's the alternative? Paul Caron's silly world of SSRN downloads? (You can't be fired as long as you're downloaded 1,000 times each year!)

Administrators who do not commence proceedings to terminate faculty who shirk their duties should be criticized for that failing. Tenure does not guarantee lifetime employment. Ask the AAUP!

The virtues of both positions might be reached by granting tenure subject to mandatory periodic review. For example, tenure reviewed every four years. If at any review point, the tenured person has not done some set of activities (which should be listed in specific terms and objectively verifiable to keep personality and ideology off the table) one is either reduced to non-tenured status or given a probationary period (one year perhaps) to fix the problem.


I did not mean any ad hominem response, but was simply pointing out that we are in different situations. You are no doubt correct that many people in non-elite schools share your views of tenure.

Although I do not have a specific proposal to offer (and certainly SSRN downloads would by silly), I appreciate your willingness to entertain the possibility that there might be other ways to provide the same kind of job security.

I also share your view of deans who shirk their duties (I served as Interim Dean for a year and a half, so this is not an abstract issue for me). But I am merely raising the reality of the situation.



I did not mean any ad hominem response, but was simply pointing out that we are in different situations. You are no doubt correct that many people in non-elite schools share your views of tenure.

Although I do not have a specific proposal to offer (and certainly SSRN downloads would by silly), I appreciate your willingness to entertain the possibility that there might be other ways to provide the same kind of job security.

I also share your view of deans who shirk their duties (I served as Interim Dean for a year and a half, so this is not an abstract issue for me). But I am merely raising the reality of the situation.


I meant "ad hominem" in its literal sense (I realize the term is often used more loosely, esp. on blogs): you suggested that one's view of tenure "depends upon where you sit," and that, ergo, that explains my view. But it does not. One possibility is that your own view of the "realities of the situation" may involve too powerful a generalization from where "you sit." I don't know if that's true, but it is a worry. What kind of evidence do we have about the actual extent to which tenured faculty are genuinely shirking duties? I suppose that's the issue.

The turmoil at Ave Maria School of Law should demonstrate the perils of a weakened tenure system. Any discussion of changing tenure is incomplete without looking how to regulate administration as well.

It is probably healthy that the regrouping Republican party is studying how the liberal institution which is university training has proved so efficient over the past millenium, especially in lawschools, for producing liberal graduates, and keeping the law profession one dominated by liberals. Rumsfeld v FAIR glanced off the surface of this deep lake. What lawprof feels like a private research project be it for passion or publish/perish, is the equivalent of some great physical science or abstract science breakthrough, say E=MCexp+2, I ask rhetorically. Well, perhaps John Yoo and Jack Goldsmith believe their students would benefit if the profs who teach torture paradigms are tenured and untouchable by repressive administrative fiat. Cass Sunstein is on the record admiring the bravery of Yoo's work, in the abstract. I suspect there is a lifestyle critique tacit in ABA's study of detenuring some institutions, and I suspect Republican politics behind that velleity. But tossing the handcuffs into the Irvine compound with dean Chemerinsky is a transparent attempt to ask him to apply them to himself in a state university system which can use his finest endeavors. If work ethic is the crux, let every professor face his own image in the mirror, and in the journals; and let the polemics of lifestyle disparities as caste divider ebb.

I visit SSRN often, but the world of ad mulierems and ad homs is one too suffused with instinct and too devoid of personal excellence to serve a purpose other than stultify discourse.

Ample institutional endowment has as a fringe benefit, tenured positions; to deconstruct that trove by reversing the freedom of thinking of its best profs is equivalent to adding to the problems bared in Rumsfeld v Fair. It is a question of what the US experiment wants to become in a world in which internet is going to make law profs more valuable, and communications more meaningful. Let's respect it, even if it has perceived foibles.

In your post you seem to disparage teaching.

Teaching those classes each week takes a great deal of preparation and exacting work.

How dare you not acknowledge the very real work and necessity of teaching in the classroom and the preparation and research that takes up so much time to present material and lead effective discussions.

Nor do you mention the demands of assessment: grading, being just one element.

Your cursory implicit denigration of teaching is misleading, to say the least, and ignorant and elitist to say the worse.

I'm sure it does take a good deal of preparation. As a college professor, I know that teachers must prepare (I know I do). However, law school profs. only have to teach 6-credit hours a week! As a community college professor, our load is 15 hours and I/we typically teach overloads on top of that.

Plus, it depends on what courses one teaches and how much experiences the professor has. After teaching the same cases year after year, you pretty much memorize them and need less prep. time. At my law school alma mater, a Prof. whom I never had (Richard Cappalli) recently retired after teaching the same civil procedure courses for over 30 years. He noted, that after doing this for so long he memorized the whole code word for word! His prep time for his civil procedure classes at some point in his career thus probably became near zero.

While the question of tenure may matter (perhaps greatly) to professors, consider the question relative to the quality of the product produced, in this case the student who has just graduated.

Many studies over decades strongly suggest that the quality of the student coming out is primarily a function of the quality of the student going in together with the rigor of competition at the particular school.

Please note that this isn't an easy quantity to measure, as being heavily subjective.

When looked at from this point of view, tenure would appear to have only a tenuous affect on the result, and that might very well be negative. It is certainly true that the over-tenure of colleges and universities that occurred in the 60's and persists to this day does not seem to have improved the quality of bachelor's degrees holders.

I think tenure was a great idea back when faculties were basically partnerships, but somewhere between then and now it stopped being generally beneficial and has become generally pernicious.

I'd rather have a contract with the school that explicitly spells out my duties and expectations.

Where I sit: a non-tenured faculty member (not in law) who never strove for tenure (and in fact, explicitly declined to pursue it.)

I think a big problem with getting rid of tenure is a collection action problem. If all universities got rid of it at once and everyone then became subject to long-term employment contracts, this may well be the first best outcome for both the schools and the teachers. However, if one school gets rid of tenure, I'd imagine that relatively few distinguished profs. would want to teach there. So I don't think it would be a good idea for Chemerinsky to follow. Unless of course, in doing so, Chemerinsky manages to staff his law school with distinguished profs. who agree that tenure is not a good idea. Most of them, as I understand are free-market economist types like Richard Epstein and David Berkowitz.

I don't imagine Chemerinsky wants his law school to be to the right of Chicago or George Mason on economic issues (I certainly wouldn't mind though!), which would be the result of trying to attract notable professors to an institution that doesn't grant tenure.

Whoops! I meant David Bernstein. I confused him with Peter Berkowitz who also teaches at George Mason. And in combining their

The key to solving Brian's problem with tenure is for the law faculty and its administration to work toward building a culture that is lively and supportive for those who contribute to the law school and to the academic life both in the law school and beyond. For those schools that lack that culture, it is hard to develop momentum that moves in that direction. But it is not very resource heavy to do it. Yes, it requires more work by those who feel they are already carrying more than their fair share. But building a culture of mutual respect is surely worth the effort.
Sticks do not work as a way to do it. Removing tenure is a drastic blow to the community and needs to be reserved for extreme cases of misfeasance.

Perhaps without tenure, some of our best and brightest legal minds just might end up practicing law and improving the quality of legal services from that end of the legal spectrum. Practicing law, full time, is not so bad, fellows and gals. There are alternatives.

Tenure is forfeited provided "some other protection for saying and writing without fear of retaliation." Does that apply to college presidents, like Sumners? Or only to those PostModernists who drivel in their indeterminacy or extremism?

Phil Mitchell was reportedly fired for his conservative views. including about religion. He is being defended by the Colorado chapter of the AAUP.
Steve Bitterman was reportedly fired from his job teaching Western Civilization at Southwestern Community College in Iowa for saying that Adam and Eve is a "fairy tale."

And if Harvard's presidents raises a question that violates political correctness -- the ideological rather than the empirical -- he's nixed too?

Tenure seems to keep the ones we need to lose, and lose the ones we need to keep. And what's its justification on elementary and secondary education?

Zathras: The troubles at Ave Maria are a red herring. Ave Maria is a bad joke, in much the same way that it's obvious that Regent isn't a 'real' law school. Who cares whether or not they have tenure? The bigger question is, why are they accredited, and will the school manage to hang onto that? They teach bastardized evangelical ideology and pretend that it's law. That won't change, no matter where the school is located or whether or not the teachers have tenure.

As far as the challenges Chemerinsky faces in recruiting a faculty, I'm willing to bet dollars to donuts that the venue presents a much greater hurdle to potential teachers than does the question of whether or not they'll be able to earn a tenured spot.

I mean seriously. Irvine? Have you ever BEEN there? At least Regent is in a nice place, and very close to the real seat of power. Who the hell would voluntarily choose to live in Irvine?

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