Constitutional Daily

Founding Principles

The Tenure Paradox - Robot pimp

Slap on the Wrist for "Non-Consensual Sex" - Lampshade, Esq.

Intelligence: The Gathering - Graphic and Gratuitous

Grads are the New Illegals - Robot Pimp

Meet Entitlement Eric - Robot Pimp

Wherein I Solve World Peace - Lampshade, Esq.

A Necessary Delusion - Shadow Hand

Do you even need to shave overhead? - Lawyerlite

LSAT Jenga - Publius Picasso

Time, Place, and Manner

...Should have some links here or something.


The Tenure Paradox

E-mail Print PDF

All normal life, Peter, consciously or otherwise, resent domination. If the domination is by an inferior, or by a supposed inferior, the resentment becomes stronger.

-Isaac Asimov, I, Robot

The American Bar Association has put tenure on the chopping block and the axe is falling fast. While members of the Council of the Section of the Legal Education and Admissions to the Bar generally agreed about the usefulness of tenure, they appear to be ready to accept the position that the decision to offer tenure should be left up to the school and that decision should be decoupled from accreditation. The only group supporting the tenure mandate are the people directly protected by it, the professoriate, while practitioners, deans, and judges were willing to put the decision in the schools' hands.

Council member and accountant Edward Tucker argued "No one outside of academia understands why tenure exists," and that it offers job protections unheard of in other professions. No surprise that University of Chicago's Philosophy Professor of Law Brian Leiter had some harsh words to say to Mr. Tucker:

Tenured employment is the opposite of at-will employment: it means that, usually after a probationary period, an individual can only be terminated "for cause." Universities have been excessively lax about terminating faculty "for cause," which contributes to the current atmosphere of suspicion of tenure. Tenured employment makes for more humane working and living conditions for employees, and protects them from arbitrary treatment. In the academic context, it also protects freedom of research, teaching, and inquiry. Those are the reasons for tenure. Must every institution offering legal education have tenure? Not obviously, though all the serious ones will. But regardless, members of the ABA council ought to educate themselves about tenure. [Emphasis added.]

I suspect Leiter has given Tucker a bit too literal of a reading. What he likely meant is that academia has failed to provide a good argument for why it needed heightened employment protections. Leiter has pointed out that other industries have tenure, such as most other teachers, and unionization tends to provide a similar level of protection. It is curious that Leiter would choose to defend tenure of legal academia by comparing it to the protections afforded to janitors and low level government employees. A fast food worker does not need freedom of research, teaching, and inquiry; indeed he will probably stomach his job better the less he inquires. Job protections for these employees is not to protect them from arbitrary treatment, it is to protect them from market competition. Unions band employees together to increase their bargaining position through labor monopolization, and then use that stronger position to negotiate better terms of employment, often at the expense non-union workers, and one of those enhanced terms is that it will be hard to fire a unionized employee. Legal academia does not have the same dynamics, and so Mr. Tucker's question deserves a bit more thought.

In an efficient firm tenure or any other sort of job protection would be unnecessary: Tenure provides that an employee may only be terminated for cause, but an efficient firm would only ever choose to terminate for cause, so the protection is redundant. We are left with two explanations for why tenure would exist. The first is simple, that firms are not efficient, and that those with the power to make termination decisions may sometimes make arbitrary or personal choices.

The second explanation is that tenure does more than provide that termination must only be for cause, and in effect gives super-cause protections. Tenure tends to come with substantial process protections, and in any given year, only about 1 in 7000 tenured professors are terminated for cause. The process of getting tenure should weed out many substandard professors, but even so, it's likely that a far greater number of professors could be fired for cause and would be if tenure did not protect them.

Whichever explanation is at work (and it is likely both), those supporting tenure are faced with a paradox. They must either state that they want to be protected from punishment for ordinary poor performance, or that they believe their deans and other administrators are petty and will fire them for personal reasons or professional disagreements. Professors are not going to take such positions though, meaning Tucker is quite right, no one understands why good professors should need protection from competent deans who value academic freedom.

[Read more from The Robot Pimp]

blog comments powered by Disqus

Philadelphia Lawyer, Unfiltered

The finest blend of analysis, advice, and fury on the internet. Sour mash, oak barrel aged, published at cask strength.


Most Recent Article:

In Defense of Risk (Happy Fourth of July)

All Articles from The Philadelphia Lawyer

Author Profile

The Robot Pimp

An in depth look at the emerging intersection of law, behavioral economics, and robots.

Most Recent Article:

The Tenure Paradox

All Articles from The Robot Pimp

Author Profile

Practice Makes Putrid

Legal practice would be all rainbows and buttercups, if it weren't for the clients, and opposing counsel, and co-counsel, and judges, and the law.

Most Recent Article:

Eat Mor Fiv Freedums

All Articles from The Namby Pamby

Author Profile

Gin and Glannon's

As Shadow Hand suffers through law school, the rest of us get a little Schadenfreude.

Most Recent Article:

I Just Work Here

All Articles From Shadow Hand

Author Profile

Irresistible Impulse

Dr. Rob Dobrenski's daring expedition into the psychology of lawyers and the law. (Not a substitute for a life well lived.)

Most Recent Article:

You're Not a Failure, You're a Narcissist

All Articles from Dr. Rob

Author Profile

Graphic and Gratuitous

Sometimes cartoons are the highest form of communication. Those times are known as "most of the time."

Most Recent Cartoons:

Intelligence: The Gathering

All Cartoons

There And Never Back Again

Defunct Big Law attorney BL1Y shares his misadventures as a writer who accidentally went to law school.


Most Recent Article:


All Articles from BL1Y

Author Profile

Lampshade, Esquire

We're dealing with some technical difficulties here. Hold up a minute.

All Articles From Lampshade, Esq.

Staff Infections

News, humor, and other non-billables from our underpaid, uncredited, unsexy staff.


News Articles

Smaller News Bits

Large Numbers of Law

Mixed Bag of Lawesome


Scofflaw Multistate Bar Review