"We All Contribute In Our Own Ways" Is Not A Valid Institutional Goal (or, My Tenure’s For Sale: The Final Installment)

In this four part series on law school culture, incentives, and dysfunction, I reviewed some of the arguments in favor of and against the tenure system and maintained that moving away from the tenure system is unlikely to be the fix-all for institutional incompetence that many critics believe.  The majority of law schools are unwilling to use even the more limited mechanisms at their disposal for aligning individual behavior with institutional goals.  It is more realistic, I argue, to urge schools to clearly define institutional goals, then to adopt proper review, assessment, penalty, and reward strategies designed to implement those goals. 

I’m always surprised at the level of hostility such proposals seem to arouse.  Usually, this antagonism takes the form of objections to the subjective nature of legal academic work or to the difficulty of formulating appropriate metrics by which to judge performance.  But this focuses on the wrong half of the equation. In my opinion, we perceive "the metrics" as the hurdle to this type of evaluation only because we fail to first develop a coherent institutional mission (which requires making uncomfortable choices and value-judgments about what type of activity will be encouraged and rewarded). Once those choices are made, the range of appropriate evaluative mechanisms becomes more apparent, although there may still be disagreements at the margins. 

A law school seeking to distinguish itself as a top interdisciplinary scholarly institution, for example, simply would not adopt the same performance metrics as a law school wishing to package itself as America’s top teaching school.  Whereas the first might adopt publications and citations within top interdisciplinary journals, academic press books, external grants, and invitations to present work at conferences dedicated to interdisciplinary work as their highest-status measures of success, the second is likely to invoke quality measures directly related to its goal of student service.  Again, there’s room for some disagreement at the borders – how does a lower-tiered peer publication stack up against a top student-edited law review at the first school?  How do teaching evaluations fare against other measures of teaching skill and success at the second?  But surely the position of the statutory supplement and bar journal publication are pre-ordained at School A, given its agenda, and School B, with its goal of student service, has no reason to incentivize poor-quality teachers who sit in their offices behind locked doors writing grant applications. 

Admittedly, most schools are somewhere between the two stylized extremes of Schools A and B.  And in an ideal world quality assessment would be guided by the collective judgment of an informed faculty body regarding who is working, on what, and at what level of excellence.  But those evaluations cannot be wholly divorced from more concrete indicia of productivity, lest they become meaningless opportunities to exercise our own unsubstantiated biases.  In the end, no school can escape the difficult and unpleasant task of defining what it aspires to be as an institution without incurring long-term costs.  The disagreement is bound to emerge somewhere over time: in hiring or tenure decisions, in curriculum-oriented debates, or in the seemingly-out-of-nowhere heated argument about replacing the faculty lounge coffee maker. As I noted in response to a comment on my prior post on this topic, it’s always been my belief that the refusal to engage foundational issues about institutional identity is part of the reason that a faculty will spend three hours arguing over whether to eliminate minus grades and then hire someone for lifetime employment with no discussion at all.

What’s especially puzzling to those of us with a scholarly interest in the ways that organizations operate (and fail) is the frequent assumption by law profs that these problems are unique to the academic enterprise.  Of course, academic departments are different from business organizations, even those in industries where quality is subjective and difficult to measure.  And, as already noted, law schools may face special challenges on this front as compared to other academic units.  But entire consulting industries are dedicated to crafting compensation policies that mirror or transform institutional culture and reduce incentives for conduct that thwarts defined organizational objectives, and large bodies of scholarly work across disciplines are devoted to the analysis of how and under what conditions stated organizational objectives become something more meaningful than rhetorical flourish. 

Your dean, associate dean, or whoever is entrusted with such decisions at your school is already evaluating and compensating you based on something.  It’s not unreasonable to want some sense of what that something is.  So, if you ask your dean, “why do we even employ, much less pay more than others, that guy down the hall who has two students registered in his class?” and the answer is, “because he’s an excellent scholar,” don’t you want to know how she arrived at that conclusion?  I do.  And the same goes for the supposedly valuable teacher with no visible publication record.  Because, “we all contribute in our own ways” is not a valid institutional goal.  It’s an excuse for poor management.

This wraps up my thoughts on law schools, incentive structures, and institutional goals, at least for now.  Thanks for listening – and to read the prior posts in this installment see:

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

II.             Incentives And Institutions: Why Stop With The Banks?

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

Comments

[Valley of the Shadow of Counting]

This wraps up? How's that possible. You still haven't told us how we're going to operationalize all this. Now that you've cast the shadow of counting over the law school, how is that going to work? How do we compare the three classes of 80+ students that "contributor A" makes against the two articles in a journal ranking >50 top fifty and <20 top twenty that "contributor B" makes (while teaching three classes of <25 students each)?

I actually prefer lockstep compensation, though that's only going to work well when you have a faculty that's been really well-selected through lateral hiring and weeded through the tenure and promotion process for those coming in as entry-level faculty. But if we're going to start drawing distinctions between people, I'd want to see something approaching a U.S. Sentencings Guidelines grid, which takes account of ways that we contribute. Because otherwise I think we've substituted the prejudices of one set of measures ("I know who's making contributions") for another ("the data are telling me who's making contributions"). Data are great; they promise to bring lots of rationality and scientific precision to our schools. But I'd like to know what the data are supposed to measure.

[Mike Madison]

Great post. I don't assume that "measurement" implies "counting," but I do think that there's a fifth post waiting to be written that talks about the "who" of doing this. A big part of the internal resistance to measurement and review derives from skepticism about the fairness of the processes of identifying institutional goals and aligning incentives and rewards with them. Specifically, faculty worry about the motives and skills of the relevant Dean, about faculty governance structures, and about the influence of others (central university administrators? favored colleagues?) who may be directly or indirectly part of these processes. Back to the promise and perils of tenure, perhaps ....

[Kim Krawiec]

Hi Mike and Shadow -- welcome back to both of you! Mike, I do understand the skepticism about process fairness and the motives and skills of relevant decision-makers. Of course, that same fear is what motivates my dislike of the "we know it when we see it approach" currently followed at so many law schools. I may dislike, disagree with, or even resent a system under which the type of skills I bring to the table are ex ante judged inferior or out of step with what the school wants. But I can live with it (or not, and go somewhere else). I can't say the same for a system under which such decisions seem to be made against no discernable guidelines that anyone can figure out.

And Shadow -- "compensation" includes more than salary -- it is summer money, research budgets, conference or workshop goodies, influence over hiring and other decisions, and any number of other things. Even when salaries are lock-step these additions never are (nor should they be -- what purpose would that serve?) Again, someone is already making resource distribution decisions based on quality judgments of some variety. They're just opaque and inefficient at many schools.

As to a fifth tenure-selling post, though, absent a consulting fee (I am a believer in the incentivizing effects of market forces, after all) I think I’ll have to hand the baton to someone else to take over the conversation from here. Although I don’t know what performance metrics, if any, my new employer may invoke in my review, I suspect that Internet rants against the inefficiencies of the legal academy are not high on the list. I think you should take it from here, Mike – and you can speak from the perspective of someone actually charged with making exactly these types of trade-offs. Look forward to reading it.

[Jayne Barnard]

Kim -- I love this discussion and am happy to point you to my 2008 article Post-Tenure Review As If It Mattered, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1161303, which describes in some detail both how a law school would identify its key objectives and then how faculty would be assessed in relationship to those objectives. It discusses both "how" and "who" and touches also on "how much" to pay key contributors. Perhaps in these troubled times some law schools will think harder about who they are, what they value, and how to incentivize the behavior(s) they need most.

[Kim Krawiec]

This is great Jayne! Thanks for posting it. I enjoyed your Madoff sentencing posts, by the way.