Shirking v. Intentional Bad Conduct: MoneyLaw and Tenure, Take Two

LazyMansDogWalk.jpgDean Jim Chen, over at MoneyLaw’s hall of doom headquarter’s, has responded to my post about tenure and Pat Burrell. (So has Michael Heise, at ELS). Jim gently critiques me for offering an overly simplistic view of MoneyLaw’s posture toward tenure. As he points out, tenure is “academia’s third rail,” and he’s no fool: [o]ne’s ability to accomplish things and to effect genuine change is inversely related to the extent to which one speaks one’s mind.” I take it that his message to me is: be mindful . . . young padawan. Thanks!*

Jim (unlike his commentators and some of ours) doesn’t quibble with the finding that tenure doesn’t itself reduce scholarly output. That was the relatively minor point I was making – tenure doesn’t cause shirking & negligence. Jim’s response is, essentially, well, ok, but it does “eliminate[e] meaningful sanctions against odiously selfish, institutionally destructive faculty members.” It also, by insulating faculty members from market pressures, makes us bad at helping our graduates to understand the actual practice of law.

Although I’d like to disagree, just to provoke a good exchange, I can’t. Jim hits the nail right on the head: tenure’s most pernicious consequence is that it permits some faculty to be reckless or intentionally terrible. Now, tenure doesn’t cause these bad eggs (or “rodents” as Jim calls them). It just makes it hard to get rid of them, making evident the need to do a better job in hiring and screening candidates. As a commentator at MoneyLaw notes, it’s “hard to appreciate how horrible these are or how widespread the phenomenon is.” My guess: 10-30% of many faculties would be fired, de-equitized, or otherwise let go if employed as lawyers. Of that 10-30%, some smaller percentage are “odiously selfish” or “institutionally destructive.” I’ve heard that new Deans are told that if you can count on one hand the number of faculty members who are truly problems, you are lucky. That sounds about right.

Whether that percentage would be smaller given market pressures is the open question. And we have no way of really knowing. If tenure disappeared by fiat, certainly some folks would be let go, and some would turn the corner from recklessness to mere negligent performance. But I still think that the improvement in overall output over the academy as a whole would be trivial.

Jeff H., in his comment to my post, pointed to a study he did of tenure and law faculty productivity. He found a statistically significant negative relationship between tenure and pages of scholarly work produced (R2=.25). This is an interesting preliminary result, but I have some doubts that it would hold if Jeff repeated it while controlling for professors’ age. Also, the relevant measure isn’t pages produced but impact, which should be relatively easy to measure using newly developed scales. The theory here is that long-term employment contracts do not reduce output where monitoring is easy (i.e., performance is widely measurable). Since scholarship falls in this category, I’d hypothesize that tenure doesn’t much affect its production. Since teaching is rarely publicly measured, I guess my prior would be that tenure does, in fact, have a relationship with bad teaching. (This is a good argument for putting teaching evaluations online and sharing them with the public.) But overall, the factor with the strongest influence on output should be age. This relationship isn’t necessarily linear – you’d expect a strong correlation between reduced writing and having young children at home, a rally as the kids age, followed by a decline again later in life. (Interestingly, this effect sounds something like explanations offered by some folks when discussing gender and blogging).

That doesn’t mean, as Solove pointed out in a comment to my post, that we wouldn’t expect the rare outlier: someone who really produced pre-tenure and who didn’t write much after tenure. Such outliers exist. But I bet that if you looked closely at the pre-tenure record of the “dead wood” professors you know, you’d see all the tell-tale signs. Past performance predicts, after all.

As I hoped I’ve made clear, I’m not defending tenure against all comers, just against the idea that it has measurable effects on productivity of the tenured. I suppose I should weigh the benefits of tenure (purportedly, better and bolder scholarship) against its costs (to those already discussed add increasing the cost of education, and decreasing innovation in the way it is produced). At this point, I think most folks who have thought about the problem sort of wave their hands skeptically at the benefits and then throw the issue to the comment thread. Which is precisely what I’m going to do.

(Photo credit: MSNBC, via this blog).

*Fair enough. I should disclose too. I’m up for tenure this fall. Since I see tenure as a straightforward tradeoff against the money I could be making as a lawyer, I certainly want it!

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6 Responses

  1. Jeff Harrison says:

    Dave: I am all for more research but since tenure can be costly to an institution, shouldn’t you be describing the positive impact of tenure on scholarship and teaching?

  2. dave hoffman says:


    Why? I’m not arguing for tenure. I’m merely saying that a bad argument against it is that it results in shirking. MoneyLaw should be all about using data to make better, more focused, interventions in legal education, right?

    Focusing on good arguments & tight links between empirical findings and policy may create support for potential reforms to the system.

  3. Mark McKenna says:

    Dave –

    There’s probably an additional explanation for the decrease in the number of pages produced after tenure, one that isn’t related to age. Before tenure there is pressure to write pieces that demonstrate that one is conversant with the relevant literature; hence the redundant “state of the literature” sections in so many pieces. My sense is that this pressure drops away to some degree after tenure, since that’s about the time one has already made somewhat of a name for herself. Maybe this difference is less pronounced after the law reviews announced their policies on article length, but I doubt it has gone away. To the extent this factor explains some of the decrease in output after tenure, I think that’s a good thing.

  4. Howard Wasserman says:

    I think Mark is right that the nature of the work we do post-tenure changes. Post-tenure, people also may write more shorter symposium pieces, a product of having made a name for themselves and getting those invitations. Post-tenure, people also may be freed up to write books (an increasingly common element of legal scholarship), which involve more pages of scholarship, but take longer to produce, perhaps resulting in an overall decrease in total pages for a particular period of time.

  5. jeffrey Harrison says:

    Dave: Your point is well taken (although I disagree) but as a general matter shouldn’t the burden be on those who want to impose the cost of tenure on others. I have yet to hear that argument.

    With respect to the comments before mine, I believe the study I referred you to did include books. However as I say in that study, the decrease I determined probably understates the actual decrease. Many books are compilations of a few earlier articles and articles often build on old ones. Nothing is wrong with any of that but to suggest that as much effort or new thinking goes into many of those post tenure works would be incorrect.

    As for symposium pieces — they are the ultimate gathering places for ideas already expressed elsewhere (after all people are often invited on the basis of a prediction about what they will say).

  6. Jeff Lipshaw says:

    As I noted in a comment over at MoneyLaw, I think the merits of this discussion are interesting. I just object to the term “movement,” particularly since I have blogged at both Concurring Opinions and MoneyLaw. I’m all in favor of metonymy (and synecdoche and Schenectady for that matter), but personally, I wouldn’t want to join any movement that would have me as a member.

    For definition of movement, see Arlo Guthrie’s Alice’s Restaurant.