Is an Aging Faculty a "Continuing Disaster" for U.S. Law Schools?

Over at The Chronicle Review, Laurie Fendrich (professor emerita of art and art history at Hofstra University) has some harsh words here for aging faculty members: 

The inconvenient truth is that faculty who delay retirement harm students, who in most cases would benefit from being taught by someone younger than 70, even younger than 65. The salient point is not that younger professors are better pedagogues (sometimes they are, sometimes they aren’t), but that they are more likely to be current in their fields and to bring that currency into their teaching.

Septuagenarian faculty members also cost colleges more than younger faculty—in the form of higher salaries, higher health-care costs, and higher employer-matched retirement contributions. Even if these costs pale in comparison to paying for bloated administrations, it’s wrong to pretend they don’t matter.

Worst of all, their presence stifles change. I’m not talking about mindless change for change’s sake, but the kind of change necessary to keep an institution thriving. A healthy university consists of departments with a balanced mix of new hires (full of energy, ambition, and fresh ideas), middle-aged faculty members at the height of their productivity, and older faculty with wisdom and a deep understanding of the evolving mission of their departments and universities. Disrupt that balance, and the foundation of an institution’s strength is undermined.

Read the full piece here.  It's an interesting read, full of internal contradictions and provocative statements.  Professor Fendrich is writing about arts and science faculties generally, but it seems that many of her critiques would apply equally to law schools.

Added 8:53 p.m. Just because I link to Professor Fendrich's piece or see the way she would apply her critique to law schools does not mean that I endorse her analysis wholeheartedly, somewhat, or at all.  I think she raises some interesting points about how the elimination of mandatory retirement has changed higher education.  The title to my post uses Professor Fendrich's language in order to invite conversation about law schools. The views expressed in Professor Fendrich's article are hers.

Comments

[anon]

Can there be anything more ageist than the stereotypes repeated above? "Many of her critiques would apply equally to law schools"? Really?

How about this? Instead of endorsing a canard that is basically by definition age discriminatory, like this:

"new hires (full of energy, ambition, and fresh ideas) [read: "young"], middle-aged faculty members at the height of their productivity, and older [read: "over sixty?"] faculty with wisdom and a deep understanding of the evolving mission of their departments and universities."

let's impose productivity and work standards APPLICABLE TO ALL. That would be a fair approach that would induce retirements where appropriate. If the "young" are so full of energy, let them work as hard as their energy allows. If the "older" faculty can't keep up, so be it.

"Aren't "old" professors just a "continuing disaster for U.S. law schools?" I'm just asking a question here ..." Does that sound even remotely right?

[Just saying...]

Most law schools are desperate to get rid of many (not all) of their old profs for many of the reasons stated starting with their high salaries and other perks. Certainly there are some very senior faculty who are still highly productive scholars, relate well to today's students in terms of using technology to teach and communicate, keep their teaching materials current and contribute in other ways to the law school. They are few and far between.

Can the same be said about faculty in other age groups? Sure, but not in the same percentages. But too many of the law schools that are desperate to deal with declining and low quality applications have cut where they can and still cannot get very senior faculty to depart. Too many of these profs are not worth what the school is paying them.

I was recently at a law school with many seniors on the faculty. Many were eager to leave if the package was attractive enough but the university refused to sweeten the pie. A mistake.

[anon]

Just saying

The circumstance you describe: lazy old professors whose deals are just too lucrative and cushy to leave, is precisely the argument that so many profs have characterized as "scamblogging" (sans the reference to age).

This is pure hypocrisy. If faculties are overloaded with lazy old professors - who don't teach much, don't write much, and don't keep up with the times - then were the scambloggers right? Are you sure that you can divide between productive and lazy profs based on age? (You seem to concede not; so, what do you propose to do about the "younger" unproductive and lazy faculty members?)

Let's go back and review the score here, especially the response to Campos when he suggested that too many faculty have a deal too good to be true.

What is amazing is that, just by adding the label "old," the whole dynamic changes.

[The Penultimate Fatman]

The two best and most selfless profs I had would be out the door if Bridget had her way. And what would I have had more of? Insecure young folk more interested in themselves, trying to impress, conferencing, missing class, on the make, and basically boring us to death because all they know about is what is happening how. Wow, plug any group in this post other than age and the PC police would be out with their hammers.

[Anon]

People should read the article more carefully. The problem she addresses is real, the job of a Professor is one that people can do well into their 70s because it is not that demanding (compare most other jobs), and law teaching even less so since the course loads tend to be lower than in other disciplines. It is also true that most faculty beyond 65 years old are not as productive as they once were, but it is very hard for schools to force productivity (on young or older professors), if they could, I suspect many older Professors would choose retirement over writing. It is also quite likely that older Professors are less likely to keep up on current cases/scholarship (this will be especially true for those who do not rely on electronic services, or those who do not use email, as she notes happens and as is true on my own faculty). This is not true for all older faculty but it is, on average true, and the point she makes in the original article is those who stay on past 65 (normal retirement age generally)do so not for the good of the institution but for their own well-being. That seems hard to refute, and their salaries are almost certainly much higher than would be true if new Professor were hired. Mandatory retirement has its benefits, again not for all faculty, but on average, and I think it is foolish to pretend otherwise.

[Anonist]

A good start on this might be to define productivity. And a second good starting point might be to dispense with statements like the older ones who stay around "do so not for the good of the institution but for their own well-being." Huh? Is is this opposed to the younger ones who are there out of a sense of loyalty and altruism?

Most of the older profs I have seen hang around did it because they liked the job and found it enriching. More than once I have heard the statement "I cannot retire yet because I have some more ideas I want to write about." The ones who retired, on average, were those not finding joy in the job anymore. That is why they count the days until retirement. I am sure that is not always the case but getting tenure and cutting back is hardly limited to the older folks. I've seen people write to get tenure and then never write again. They also tend to be the ones who cannot wait to give up teaching as well. Truth is, they probably were in the wrong job to start with.

I've had colleagues who have taught into their late 70s and who brought to the table a wealth of knowledge unmatched by the younger people. They had 20 years of education the 40 year olds did not have. They could review a manuscript for you and draw on information, experience, scholarship, and a broader education than most others on the faculty. In generally the ones who stayed around were far less superficial as an intellectual matter and far less distracted by self-promotion..

The problem is the ease with which law schools grant tenure in the first place and their inability or unwillingness send all slackers packing.

[Orin Kerr]

Anon at 5:54pm says: "Let's impose productivity and work standards APPLICABLE TO ALL. That would be a fair approach that would induce retirements where appropriate. If the 'young' are so full of energy, let them work as hard as their energy allows. If the 'older' faculty can't keep up, so be it."

Can you say more about how/if you would do that in a way consistent with tenure protections? Would you say that failure to reach a minimum productivity level is "good cause" to fire a tenured professor, and if so, what kind of standard would you propose? Or would you end tenure protections first?

[An Even Fatter Man in the Shower]

It seems like the burden should be on those supporting age profiling rather than those favoring it.

[PaulB]

In a world without mandatory retirement, we can't justify paying senior professors more than their younger counterparts. Certainly no one here is arguing that the most senior professors as a group are far more productive, however you want to define that term. If we need to reduce the cost structure of law schools, the logical place to start is to end the seniority based premium that exists in most departments.

[Matt Bodie]

That's an interesting suggestion: just have a flat rate that all professors of a particular rank are paid (with small jumps for associate profs with tenure, full professors, and chairs). You could add on annual "bonuses" for good teaching, scholarship, service, etc., but you'd start each year with a clean slate. I wonder if any schools have something like that model.

[Christine Hurt]

The last two retirements at the University of Illinois defy the assumptions in the Chronicle article: Peter Maggs and Tom Ulen. If I were starting a law school today from scratch, they would be my first two choices for hiring. They retired because the Illinois pension system that they served under for decades is changing. That's one way to incentivize retirements, but it targets the amazing and the not.

[Anon Prof]

It's easy to pick apart the straw man version of this article because of course age is an imperfect proxy for productivity.

The part of the Fendrich piece that resonated with me is how this aging professoriate from mostly the Baby Boomer generation is blocking the ability of institutions to hire new people.

This distorts the demographics of who is on the faculty, so that it does not match the study body in terms of race, gender, or socioeconomic background.

This also places people on the faculty who have practiced law in a way that does not remotely resemble how it is practiced now, who may have trained in another discipline (sociology, economics, etc.) using methods that are no longer the norms of that academic discipline, who may not have ever encountered entire legal theories and schools of thought that are commonly being used to understand to frame and examine critical aspects of law, and whose understanding of the areas of law that they do not teach and write in are likely to be severely diminished.

All of these aspects are not specifically about age or generation. These critiques can rightfully be leveled at new hires as well. Also, some older professors are much better situated to see what "current" trends are fads or where they fit in the normal cycle of ideas that keep reemerging with new brands and then losing popularity yet again. However, on the whole, a faculty member above the age of 65 or 70 is far more likely to have the shortcoming listed above than one who is younger. The question in each individual case is whether the benefits of what that person brings to the table outweighs the challenges. What Fendrich says that I appreciate is that the person themselves and their other friends and colleagues are unlikely to be able to be honest with this calculus.

[A Moderately Pudgy Person]

It is true that a new hire at 130K a year can probably do most of the same things a veteran can do after being there for 30 years. Now let's see how easy it is to hire new people if the policy is no raises or as soon as we find someone cheaper we will replace you. How about thinking these idea out at least one more step?

[Former Editor]

If the starting salary is 130k a year (or even two thirds of that) with no prospect of annual raises except as cost-of-living adjustments or when promoted to the next faculty rank, then I would still expect there to be a line of applicants out the door and around the block if the position is tenure-track.

As for "as soon as we find someone cheaper we will replace you," that would be more problematic. Of course, I don't see anyone actually arguing for that.

[A Moderately Pudgy Person on a Diet]

Former Editor: You could right about the line but how many in the line would be "qualified" to teach law under current standards? Thirty years from now that would be real income of about 70K and by that point there is a mortgage, kids wanting to also go to an elite school, etc. I think it would be a tougher choice but it would be interesting to ask grads in the top 5% at elite schools if they would take 130 now for life.

If the are not talking about people not earning their income being replaced, what are they talking about? Surely it is not age per se but age as a means of identifying those who do not earn their salaries. And if that is the case, why not replace people when someone comes along who would do it for less?

[Former Editor]

Name Changing High BMI Commenter,

A few things: (1) I don't think we have the same definition of qualified. I, for one, do not think that to be qualified to be a law professor you need to be in the top 5% and have gone to an elite school. There are plenty of qualified professors already out there who do not fit that mold. So, yes, I think the line around the block will have more than enough able candidates. (2) You'll notice I supplemented my "no raises" salary with a cost of living adjustment that is the same for everyone across a particular academic rank, which seems to go along with Matt Bodie's general idea, so your point about income deprecation is something of a non-sequitor. (3) I don't think anyone is suggesting a race to the bottom in terms of salary or firing qualified, productive faculty members just because they could hire someone slightly cheaper. There is a difference, of which I'm sure you are aware, between the propositions "we should pay as little as possible for an employee who will do x tasks" and "we should require the employee hired to perform x tasks to actually do so."

[Barry]

"It is true that a new hire at 130K a year can probably do most of the same things a veteran can do after being there for 30 years. Now let's see how easy it is to hire new people if the policy is no raises or as soon as we find someone cheaper we will replace you. How about thinking these idea out at least one more step?"

Posted by: A Moderately Pudgy Person

Go outside of law school, and that would get a zillion qualified applicants.

And no, law professors are not giving up partnerships. Most of them have 0-2 years in practice, and were a looooong way from making partner. In addition, making partner requires very different skills.

[ladylawprof]

The Nov 18th online version of The Chronicle of Higher Education published a response by Howard Good to the Fendrich article referred to in this post. Here is the link: http://chronicle.com/blogs/conversation/2014/11/18/ageism-in-academe/?cid=pm&utm_source=pm&utm_medium=en

[A Moderate Pudgy Law Prof who Ate a Box of Oreos and Has Promised Herself not to do it Again, At Least Today]

Former Editor & Barry, I am sure if we "lowered" the standard the line would be long. And I completely agree that what we now regard as qualified is indefensible. I am curious, sincerely so, about how one defends keeping someone around when someone else can do the job at a lower cost. Isn't that inconsistent with lowering tuition, the cost of legal education, student debt, and, ultimately, the fees consumers of legal services pay. I realize, as Orin points out above, this is all theoretical since people are locked it but if we "protect" the youngsters from the market, why not protect the oldsters as well? I realize this has strayed very far from the age profiling pitch made by some but I do think that issue cannot be delinked from the entire question of why any law professor should be protected from the market. OK, I will hang up now and listen for your answer over the air.

[Former Editor]

Oreo Addict,

There are institutional benefits not to having high-turnover and cheaper is not always better. That is an aspect of "the market" just as much as demanded salary and just as true in legal education as in retail (see, e.g. Costco). That said, I would agree that "protecting" faculty from the market to the tune of 130k starting salaries is antithetical to lowering tuition and to all of the benefits that would flow from a more reasonable cost of legal education. As I have said a number of times in various threads on this site, I think law schools would do better moving forward to offer salaries to new faculty consistent with public sector salaries in their local markets than salaries competitive with the private sector in large cities.