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July 02, 2009


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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,, 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.

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