Brian Tamanaha’s post questioning the utility of tenure over on Balkinization has drawn a number of interesting comments. As one would expect, some people agree and some do not. One even argues that tenure must be working because there are so few attacks on professors. This is a little like arguing that the moon must be working because there are so few attacks on earth from Martians.I wonder if a general tenure discussion can be applied to law professors. What does tenure do to increase the quality and quantity of what law professors do for the benefit of students and other stakeholders? That is the question, isn’t it? My hunch is, not much. This is not to say I think it should be abolished. As I have written elsewhere, despite the decrease in scholarship for post tenure professors and massive recycling, I favor meaningful post-tenure reviews but not the elimination of tenure.
Tenure and law professors? Think about it. I doubt there is a more conservative group of faculty on any campus that those found at a law school. Their own shadows give them nightmares. Just look at the rules most live by:
1. Do not be involved in controversy – any controversy.
2. Do not write anything down you would not want to see on the front page of the NYT (the NYTs rule).
3. Wait for someone else to voice your concerns.
4. Find out which way the wind is blowing before saying anything.
5. Observe the tenets of facial collegiality.
(Actually, I guess most deans live by these rules as well).
To be sure, many law professors get their kicks thinking they are “out there” but very few risks are ever taken.
I am pretty sure one can live this life without the benefit of tenure. So, if tenure for law professors is not about protecting their academic freedom, (What good is freedom if you waste it.) what does it do? The best thing it does is protect them from each other and this is no small thing. Internal attacks are very rarely based on the quality of one’s teaching or research.The downside of tenure is that it:
1) Keep positions from becoming available to others (opportunity cost).
2) Protects those whose hearts are really not in it and, thus, make minimal efforts.
3) Allows the continuation of self-referential research and teaching without regard for whether students or stakeholders ultimately benefit. It is not too much of a stretch to say that tenure for law professors protects a great deal of self-psychotherapy.
I am not sure how this balances out but I wonder if this would work:
1. To get tenure you must say something controversial about law that draws outside attention or at least irritates one-third of the faculty. Keep your head down, say nothing, play both sides, and you are out.
2. Tenured is revoked for any faculty member who has no enemies on the faculty and has not drawn criticism from outside the law school.