Incentives And Institutions – Why Stop With The Banks? (or, My Tenure’s For Sale, Part II)

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.

Related Posts:

I.              
My
Tenure’s For Sale. How About Yours?

III.    
       When
It Comes To Law Faculty, We’re All Post-Modernists.  

IV.            "We
All Contribute In Our Own Ways" Is Not A Valid Institutional Goal