Brian Leiter's Law School Reports

Brian Leiter
University of Chicago Law School

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Friday, October 12, 2007

When Will Paul Caron Give Up Tenure?

Of all the mostly bad and silly advice Blog Emperor Caron posted for Erwin Chemerinsky as incoming Dean of the new law school at Irvine, the worst and silliest was his suggestion to abolish tenure at Irvine--a move which would guarantee the immediate failure of the new law school.  Since I pointed that out, Paul has now posted a comment from an "anonymous" dean also urging Chemerinsky to abolish tenure.  The anonymity is understandable:  it would be embarrassing for the school in question to advertise to the world that their dean is so ignorant and/or has such contempt for his or her faculty.  Look at what s/he has to say:

Tenure purportedly protects professors against political pressure. Tenured professors presumably enjoy greater freedom to seek truth wherever it lies, without regard to the popularity or volatility of a proposition.

But tenure doesn't work this way. It shelters the lazy and the pedantic. They alone seek refuge in academic sinecures. Active scholars will find a home somewhere. Of all people, you know that. Tenure might have mattered when scholars rarely moved and global academic markets were constrained, if even extant. No more.

Those who deserve tenure don't need it. Those who need tenure don't deserve it.

Paul Caron is not "lazy" or "pedantic," so he has no reason to seek "refuge in" an "academic sinecure[]."  Paul, when are you giving up your tenure?

And what about the "anonymous" Dean?  Presumably s/he has given up tenure as well?  Well, we can't know since this brave soul is anonymous.

But now let's return to the real world.  David Luban made the crucial point about tenure some time ago:

The reason that tenure appears to function to protect academic freedom only "every now and then" is because it does a good job of protecting academic freedom, so that enemies of academic freedom don't even bother assaulting it except in a few unusual, perfect-storm cases such as Ward Churchill. But once tenure is abolished, I believe the assaults would come fast and furious.

Of course they would, though perhaps not for tax scholars, since no one pays attention to them (since their work is too technical!).  But what about people living in Texas who write papers on whether religion should be tolerated?  Now six years ago I had a tenured offer from the University of Pennsylvania Law School and currently I have a tenured offer from the University of Chicago Law School.  So it might seem I do not need "tenure," since it seems I can get hired at peer and even better schools based on "performance."   So what?  Why should my job be under attack because I have views that would be deemed unpalatable when reduced to soundbites on Fox TV?  Can the anonymous Dean (I'm assuming it really is an anonymous Dean, and not a high school student that Paul dug up somewhere!) really believe that finding "a home somewhere" is an adequate substitute for being able to pursue research without being subject to political repercussions?

It was only forty years ago that the Chairman of the University of Texas Board of Regents, a genuine fascist named Frank Erwin, together with conservative state legislators, tried to remove from the state budget the individual salary lines of UT law faculty who supported civil rights and the separation of church and state.  These "tenured radicals" were saved only because the Law School had a great Dean, Page Keeton, who knew how to flex his own political muscles to protect the academic integrity of the institution. 

When the Board of Regents summoned Ernest Goldstein of the law faculty to appear before them to explain his civil rights activities, Keeton and Charles Alan Wright organized a letter to the Regents, signed by the entire faculty, stating that if Professor Goldstein were forced to appear, the entire law faculty would resign.  The Regents backed down.  (As an interesting sidenote, Dean Keeton also forced the major Houston law firms to hire Jews in the late 1950s, while, as everyone knows, "white shoe" New York firms were discriminating against Jews well into the 1960s.)

Only forty years ago!  Today, of course, the issues would be different:  skepticism about the "war on terror," perhaps; being insufficiently pro-Israel or, dare we say it, writing about "the Israel lobby"; being critical of religion; and so on.  When our alumni magazine ran an excerpt from Sanford Levinson's latest book, Our Undemocratic Constitution, an old alum wrote in to denounce him as a "socialist" (!!!) and to declare that he was withholding future donations.  Right now, political forces outside the universities don't bother to try to get people fired because tenure makes it difficult, as it should.  And political forces within universities, with their own, usually different, priorities, don't bother either, for the same reasons.

There is, indeed, a problem with the tenure system, which is that even academics often talk as though it means "guaranteed lifetime employment," whereas what it really means is that employment can be terminated only for "good cause."  That imposes an obligation on universities to terminate faculty for whom there is "good cause":  for example, faculty who don't produce scholarship (Alan Dershowitz is, ironically, probably an example--as Judge Posner remarked, although he is a professor, he "is not a scholar"); or faculty who don't responsibly carry out their teaching duties.  Tenure can protect the freedom of intellectual inquiry without protecting the lazy and incompetent.

There is an amazing irony in telling Erwin Chemerinsky--who almost lost a job because of external political pressures--that he should eliminate tenure because it isn't needed.  This irony, and the actual purposes of tenure, are apparently lost on Paul Caron and the anonymous Dean. 

So, Paul, when are you giving up your tenure?   (Don't worry, I'm not holding my breath.)

UPDATE:   A colleague at Duke writes:

Following up on your tenure post, I don't know how closely you've followed the Duke lacrosse saga but the blogosphere has been howling that 88 Duke professors who signed an open letter to the school newspaper following the alleged rape should be punished/fired or worse.  The open letter was a bit incoherent, but basically had quotes from anonymous students decrying racism and sexism on campus and thanked people for "coming forward" to raise these issues (none of the signatories were from the Law School).

It has been nothing short of amazing to see how the blogs, particularly KC Johnson's, have transformed an open letter that got little or no attention at the time into a punishable offense and to reify the signers into the "Group of 88."  This story has quickly morphed into the latest battle in the campus culture wars that have been raging for the last 30 years.  Professors who have spoken up in defense of the so-called G88 get vilified, as well (check out the responses to a letter to the editor by two profs at:
http://media.www.dukechronicle.com/media/storage/paper884/news/2007/10/05/Letters/Criticism.Of.Brodhead.Faculty.Disheartening-3015368.shtml

I've been stunned, and a bit scared, at how quickly a mob mentality can be whipped up against professors.  I can only imagine what it must have been like in the 1950s.

ANOTHER UPDATE:  So I was thinking that tax scholarship is too hard for the general public to understand, but my colleague Bob Peroni, a well-known expert on international tax law, points out that tax scholars do, indeed, need the protection tenure provides from external political pressure:

I can assure you...that your comment that "no one pays attention to them [i.e., tax scholars]" is incorrect.  Members of Congress, congressional staff members, Treasury and IRS personnel, and high-level executives at Fortune 500 multinational corporations, among others, do indeed pay attention to tax scholarship and can become quite incensed with the academic work done by many tax law scholars (including me).  I have the heated public exchanges as well as e-mail and snail mail responses to some of my work to prove it.  So tenure is as important for tax law scholars as for any other scholars on Law School faculties.

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Those who follow the blogs are probably already familiar with the wealth of free blog advice that has been offered to new UC-Irvine law school dean Erwin Chemerinsky. Over on the Law School Reports blog, Brian Leiter takes issue with Paul Carons... [Read More]

Tracked on Oct 12, 2007 7:11:06 AM