A few days ago, in My Tenure’s For Sale. How About Yours?, I blogged about the purported costs and benefits of tenure, and the extra salary I would demand in exchange for giving up tenure (not that my dean has offered and, yes, I would probably worry if he did). As I noted in that post, tenure is defended as a means to alleviate several perversities that might otherwise occur in academic hiring and department management. Whether those benefits outweigh the associated costs, however, is widely debated, particularly when one considers how such decisions play out in the real world of university bureaucracy.
In brief, the asserted costs of the tenure system include the inability to remove unproductive or incompetent faculty and the front-loading of incentives to early in an academic’s career (when she has other incentives to produce and teach well) and away from the later years (when she has more limited outside incentives to work hard). The purported benefits include encouraging creativity, protecting those who hold unpopular views, inducing faculty to hire the best new faculty, reducing their incentives to fire people they don’t like in order to make room for their friends, and enabling faculty hiring by the faculty -- who are in the better position to judge scholarly and classroom abilities, and whose hiring and firing decisions otherwise would suffer from these perverse incentives -- rather than by administrators.
The question that interests me, however, is whether it is reasonable to expect tenure abolition to produce even its most basic asserted benefit -- removing unproductive or incompetent faculty (however one defines that term) -- without regard to any costs the tenure system might entail. In other words, is the tenure system all that holds us back from the diligent pursuit of institutional goals? I believe that the answer is no -- tenure is not the most significant force constraining law schools in their supposed quest for excellence. Instead, most do not embrace even the limited mechanisms at their disposal for aligning faculty incentives with institutional priorities. I thus question whether giving law schools access to “the big gun” of freedom to fire would result in substantial changes at most schools. In an upcoming post, When It Comes to Law Faculty, We’re All Post-Modernists, I’ll expand somewhat on the special challenges law schools may face on this front, but otherwise will leave analogies to, or distinctions from, other academic departments for another day and, probably, another person.
To illustrate, are the hiring and tenure processes at your school designed as genuine opportunities to attract and retain only those faculty most likely to uphold high standards of scholarship and teaching throughout their careers? Does your school explicitly link salaries to scholarly productivity, quality, or influence, or are salaries essentially lock-step with seniority? Or does no one know? Are bonuses paid based on any metrics of teaching quality, such as student evaluations, teaching awards, class enrollment, peer review of teaching, and the like? What incentives and rewards exist for service? Do you receive anything extra for chairing committees, attending student or alumni events, mentoring students, diligently attending workshops, or providing feedback to junior faculty and other colleagues on scholarship and teaching? To the extent there are one or more faculty generally recognized as not pulling their weight in any of the relevant categories (scholarship, teaching, service), does the institution send a clear signal that they are not living up to expectations? For example, does he or she continue to receive raises, summer money, travel funds, an office with a window?
My point here is merely that, even considering the constraints imposed by the tenure system, law schools have a variety of shaming mechanisms, punishments, and incentives at their disposal to influence faculty behavior, most of which are rarely employed in a clear, transparent, and coherent manner. Of course, different schools operate differently on this front. Some may actively consider productivity and competence of various sorts in retention and compensation decisions, but the lines of decision-making authority and the factors that will be considered are often unclear. Who decides who gets a raise, who gets a chair, and who gets extra travel money? The dean? The associate dean? A committee? What metrics will the relevant decisionmaker(s) use and what expertise does she bring to bear on the decision? Is your associate dean a bankruptcy specialist? Then what methods will she use to determine what constitutes high-quality work in the field of, say, legal philosophy?
Market competition naturally plays a role. But let’s be honest: the legal academic market primarily values scholarly productivity, and even then does so imperfectly. On rare occasions a good scholar’s teaching or institutional reputation may be so poor as to be disqualifying, but few schools actively recruit excellent teachers or institutional citizens who don’t also publish well. This is as it should be and, doubtless, will remain. But if the goal is to pay more than lip service to the teaching and service requirements of the job, then internal mechanisms will have to operate to do so. And the lateral market is imperfect even as a pure sorting mechanism for scholarly output – some faculty have family-related geographic constraints that render them relatively immobile, some sub-fields may be less marketable than others, and some schools engage in curriculum-related slot hiring that bears little relation to the best available candidate.
Would we perform these tasks differently and better were the shackles of the tenure system not corrupting our faculty rosters? Perhaps. There’s an obvious chicken-and-egg problem here that makes it difficult to predict the ways, if any, in which law schools in a non-tenure system would differ from their current incarnation. But I suspect that abolishing tenure is not the panacea for institutional incompetence that many believe it to be. In the coming days, I’ll post on some of the usual objections to the prospect of tailoring incentives to academic departmental goals, including the difficulties of setting those goals and determining when a faculty member has met them.