an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
There is a lot of talk these days about tenure in law schools. Not surprisingly, law school employees favor tenure. Michael Olivas, current President of the Association of American Law Schools (essentially a union boss), has written a strong defense of tenure (and similar job security mechanisms) in response to an ABA proposal for schools to have greater flexibility to hire and fire as they prepare students for the new realities of the legal profession. (Brian Tamanaha has offered a thoughtful response to Olivas's position.)
Tenure has traditionally meant job security until retirement, barring discharge for cause or something as dramatic as a school closing down. As such, tenure is extremely expensive for a law school. It means that the school is committed to paying a salary, one that typically increases over time, without any guarantee that the tenured professor will continue to perform at a rate that justifies that salary -- and perform at a rate higher than somebody else who could be hired instead more cheaply.
Many tenured professors do, of course, perform magnificently. Their scholarship matures, their output increases, their reputations are enhanced, their teaching skills strengthen, and they mentor newer professors. Contacts that are developed over time allow tenured professors to help students land judicial clerkships and jobs and undertake initiatives that improve the educational environment of the school. The professors I most admire are all tenured.
However, there are also significant numbers of law school professors who slow down and disengage after receiving tenure, not necessarily right away, but as time moves forward and other interests (family, vacation homes, hobbies, travel, politics) take on greater appeal. Looking at the webpages of a random set of schools and seeing who has published what in the past five or ten years demonstrates the point. There is a serious cost when law schools are stuck with
So here is a solution: a grant of tenure should last fifteen years.
Under this proposal, after a professor has had tenure for fifteen years, the school would reevaluate whether a continuation of tenure is warranted. The decision would be made based on scholarly productivity along with teaching and service. Of course, fifteen years after the initial grant of tenure, the expectations of achievements would be very high. It would ask, I suppose,"if we had known this person would do this amount of work in 15 years, would we have granted tenure in the first place?" But the real focus would be forward looking: if the person has proven a disappointment, then the question would become whether continued tenure is justified (the answer to that would typically be no). Schools would have different expectations about what should be accomplished in 15 years after receiving tenure. But a major law review article each year seems perfectly manageable. Post-tenure, many professors shift to writing books and they, of course, take longer. The point is there would be a serious examination of the 15-year record so that there is an opportunity to cut the tie and for the school to direct the saved resources where they can be used more productively.
Most engaged and productive professors would make it through the review with little difficulty and life would continue. Some would not because they simply haven't done the work to justify the position. Those for whom tenure is terminated need not be fired. Instead, they could be offered non-tenured teaching positions, shifted into skills-based programs, given a largely administrative role, or hired for part-time service (with, of course, in each case a decreased salary). Or they could simply be offered an early retirement package so they can pursue their true interests.
The proposal preserves tenure for those who show they deserve to keep it, saves money, and gives schools flexibility to structure their programs in ways that will better serve students.