“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.