Monday, February 11, 2019

Professors Chilton, Masur and Rozema respond on raising tenure standards and the costs


We’re grateful to Brian Leiter and Michael Simkovic for blogging about our article “Rethinking Law School Tenure Standards.” We agree with both of them that there are costs to raising tenure standards. The goal of the project is not to claim that those costs are unimportant. In fact, after acknowledging some of the costs of applying stricter tenure standards, we end the paper’s introduction by saying “[w]e thus caution against jumping to conclusions about whether tenure standards should be increased, and we hope future work builds on what we have started here to better understand how the legal academy’s personnel decisions can be improved.”

Instead, the goal of the project is to provide new evidence that can help faculties set tenure standards in a more informed way. So even granting Michael’s argument that the costs of increasing tenure standards are high, the results in the paper should still be helpful to law schools.

We’ll highlight just three results that we think are important. First, the results show that pre-tenure research records are highly predictive of post-tenure research records. This illustrates that it is possible to tenure scholars that will be influential in the future with a reasonable degree of accuracy. Second, the results show that there are fantastic scholars across a wide range of law schools. For instance, roughly 30 percent of professors at law schools ranked 50-100 have more citations than all but the top 30 percent of professors in the same tenure cohort at the top 20 law schools. Not everyone is moveable, of course, but there is a lot of talent available in the lateral market. Third, the results illustrate that modest increases in denial rates could result in large increases in law schools’ academic impact. It’s reasonable to think that denying more people tenure is not worth the trade-off, but schools should know how big the potential benefits are when making those decisions.

That said, Michael is right that we only focus on estimating the costs and benefits of applying stricter tenure standards on academic impact, and we don’t claim to be performing a full cost-benefit analysis of the effects of raising tenure standards. But a lot of the costs he described wouldn’t arise or are not as high as he makes it seem.

For one, we are analyzing the effects of increasing tenure standards in law schools, not eliminating tenure. Many advantages of tenure that Michael describes—“protecting intellectual freedom, encouraging faculty to share rather than hoard knowledge, promoting investment in specialized skills, aligning faculty and institutional incentives, increasing the rigor of teaching and improving outcomes for students”—would remain for the large majority of each law school’s tenure-track faculty that has tenure. It is possible that untenured professors (or aspiring professors) would become more risk averse and try to avoid writing anything that would upset a potential future employer. But it is also possible that they would work harder—to the benefit of their scholarship and their teaching—if their tenure were no longer effectively guaranteed.

Additionally, Michael suggests that schools that raised tenure standards would have to pay faculty more to compensate them for the increased tenure risk and wonders where this “large pot of money” would come from.  He points to a paper that we described in the introduction (Ehrenberg et al., 1998). If the findings in that paper about economics departments are generalizable to law schools, it’s not clear that the cost would be all that great. That study found that a 10 percentage point increase in tenure denials increases starting salaries of assistant professors by 0.7 percent and salaries for tenured faculties by 2.2 percent.  If the size of these estimates are comparable for law schools, the increased cost of higher salaries may well be a small part of total faculty salaries and possibly well worth the substantial increase in scholarly output that we document. In fact, the Ehrenberg paper echoes this point: one conclusion of that paper was that “the primary route that low tenure probabilities raise [tenured] professor salaries is through their effects on assistant professor effort/productivity.”

Finally, we should pay attention to the sclerotic effects of low tenure rates on entry-level hiring. Right now, when a law school hires an entry-level candidate, it is, for all intents and purposes, hiring that person for decades. That can make schools very risk-averse in hiring. We have probably all heard stories about schools that are afraid to hire at the entry level because they are afraid to deny tenure. Risk aversion on the part of schools can work to the disadvantage of candidates who don’t have the typical markers law schools seems to value— clerkships, Ph.D.’s, and the like. To the extent that those markers are correlated with gender, race, and socioeconomic status, law schools’ risk aversion in hiring can perpetuate problems of faculty diversity. Raising tenure standards could free schools to take more risks in hiring and help reverse these trends.

All told, there might be a fair amount to gain from raising tenure standards and not as much to lose as one might think.  Our goal is to provide information and analysis that will help faculties think through the issue.

Of Academic Interest, Professional Advice | Permalink


** The academic vs. alternative pay differential is likely larger in law today than in economics in the 1970s **

I applaud Professors Chilton, Masur and Rozema for taking up the challenge of how we can best match the most productive research faculty with the institutions with the strongest commitment to supporting research. I share their view that this is an area where law schools should strive to improve. Research is a vital part of academic institutions’ mission. I am not surprised to hear that there are many highly productive scholars at low and modestly ranked institutions, and strongly support a focus on lateral hiring.

Nevertheless, there are strong reasons to believe that the costs of increasing tenure denial rates would be significantly higher in law today than those estimated by Professor Ehrenberg for economics based on data from the 1970s and 1980/1981.

During the 1970s the gaps between pay in the upper echelons of the private sector and in academe were likely much smaller than they are today, particularly on an after-tax basis. Since the 1970s, compensation at high levels of law and finance has dramatically increased. Academic faculty salaries at most institutions have grown relatively slowly in real terms, even after accounting for rank and sex.

Since the 1970s, marginal income tax rates on those with high incomes have fallen dramatically, while payroll taxes on those with middle class incomes have increased. Overall, taxes have become flatter.

The outside opportunities available to elite law graduates today may be much better than those available to economists in the 1970s. The period studied by Ehrenberg was before financial deregulation, the rise of big data, and the M&A boom that created larger and more powerful corporations that could afford to pay their professional service providers better. Economics PhDs outside of academe were often working in government agencies, not the private sector.

I would encourage Professor’s Chilton, Mazur, and Rozema to attempt to replicate Professor Ehrenberg’s methodology using more recent data for law, to provide estimates of both benefits and costs of increasing tenure denial rates.

In addition, Ehrenbeg and his co-authors found that higher tenure denial rates increased pay for tenured faculty as well as entry level pay. Thus, any increased labor costs could apply throughout the pay structure, and not just for junior faculty.

** Some of the persistence in citation counts may be due to differences between fields and institutions rather than differences between individuals within those fields and institutions **

As noted before, I would encourage Chilton & colleagues to test their finding of persistence of productivity measures for pre-tenure and post-tenure periods on faculty members within the same specialized field (i.e., tax, corporate law, constitutional law) at similarly ranked and resourced institutions, to try to assess the extent to which such performance persistence could be driven by field or institutional differences rather than variations in individual ability. Selection effects will complicate these efforts, but they could try to look to switching in the lateral market. Such estimates would arguably facilitate a better estimate of the potential benefits of reduced tenure rates and increased lateral hiring.

**Pre-tenure can be a very long time**

Chilton and colleagues acknowledge that “It is possible that untenured professors (or aspiring professors) would become more risk averse and try to avoid writing anything that would upset a potential future employer.”

We’re moving toward a world where being competitive for a tenure track position increasingly requires a PhD, a law degree from an elite institution, a clerkship (or two or three), and several years of private sector experience. With higher tenure standards and longer tenure clocks—active researchers could be aspiring professors for 15 years before landing a position, and then might have to wait another 5 to 10 years for tenure, or even longer if denied tenure at their first institution.

15 to 25 prime years is a long period to spend worrying that publishing the wrong thing could render you unemployable. The qualitative impact on the sum total of research produced could be significant.

There are ways of rewarding productivity and effort besides firing people, like merit compensation. Merit compensation seems less likely to risk unintended side effects like timid scholarship. It’s not clear that it would reduce total scholarly output.

**It might be helpful to present data on the impact on diversity**

Chilton and colleagues imply that reducing tenure rates according to citation counts would help improve faculty diversity, particularly on race, gender, and socioeconomic status. They write:

“Risk aversion on the part of schools can work to the disadvantage of candidates who don’t have the typical markers law schools seems to value— clerkships, Ph.D.’s, and the like. To the extent that those markers are correlated with gender, race, and socioeconomic status, law schools’ risk aversion in hiring can perpetuate problems of faculty diversity. Raising tenure standards could free schools to take more risks in hiring and help reverse these trends.”

It is also possible that schools might take more risks regarding research productivity for the sake of hiring diverse entry level candidates.

Given the emphasis placed on improving faculty diversity, it would be interesting to know how the low-citation count / low-elite publication count junior faculty who Chilton & colleagues believe should be terminated compare to those who they believe should replace them.

They could simulate the effects on diversity using a similar approach to the one they took to simulate the effects on productivity.

Posted by: Michael Simkovic | Feb 6, 2019 1:16:48 PM

This is an excellent rebuttal. I know of no other knowledge business that commits to full partnership on the front end. Even in professional partnerships there are mechanisms to ease out unproductive partners, something the tenure system does not allow. The paper’s data on lower-tier productivity and the ability to predict low output after tenure gives strong reason to believe the current system is suboptimal.

One point I do think I can make as a longtime practitioner is that opportunity cost of practice likely plays no role in generating the current system. Most scholars, especially the successful ones, are cut from very different cloth than the most successful practitioners. Scholars need not have strong social skills and can indulge intellectual independence and intellectual honesty in a way that simply does not lead to success in practice. Practice at the highest levels is not simply academia on steroids. It is an entirely different pursuit. It is hard for me to imagine two people less likely to succeed in practice as Cass Sunstein or Eric Posner even as both dominate their academic fields. They are apples and baseballs in the skills they require.

Posted by: J.B. Heaton | Feb 6, 2019 3:33:49 PM

"I know of no other knowledge business that commits to full partnership on the front end."

Federal judges are appointed for life without a probationary period. Their role is ideally a lot like the role of a good scholar, in the sense that they are meant to be objective and resistant to outside pressure.

Lower ranked law schools can serve a role for elite law schools similar to the role that district courts serve for Circuit Courts and the Supreme Court, as places where talent can be developed and eventually promoted.

You can get away with being more intellectually honest and less socially savvy in the academy thanks to tenure, but even in the academy, there are benefits to having decent social skills. We do interview people before hiring them, we work with coauthors and research assistants, we work on committees and interact with the rest of the university, we interact with current students, admitted students and alumni, and some scholars engage in consulting which can resemble professional services.

Posted by: Michael Simkovic | Feb 6, 2019 11:54:33 PM

I am not sure that federal judges are an apt comparison. With some exceptions, they have typically practiced for a number of years before being appointed to the bench and their practical experience often has more than a little application to their judicial roles. In contrast, most new law professors have no more than a couple of years of experience in practice, coupled with a clerkship or two, and those experiences don't necessarily translate into productivity as a scholar or excellence as a teacher.

Posted by: Doug Richmond | Feb 7, 2019 7:45:19 AM

I don’t think the federal judiciary is a knowledge business, but to take your analogy it is certainly one with much higher tenure standards. For example, no one would have thought you qualified for a federal judgeship when you were hired as a law professor, but the law professor hire virtually guaranteed you tenure at a higher salary than the Justices make.

And, of course, I’m not saying professors lack social skills. I’m saying that the personalities that succeed in practice at high levels are, in my experience, very different from the personalities that succeed in the academia, and the tastes for ideas and intellectual debate are very different as well. If there is something to the opportunity cost argument it is about the near-term tradeoff of a couple hundred thousand more dollars as a senior associate or of counsel or income partner. But I still don’t buy it.

Perhaps the answer lies in the necessarily interdisciplinary nature of law schools, especially smaller ones. Perhaps it is hard to turn down tenure outside of sizeable departments that have the expertise to vouch for the tenure candidate in addition to outside letters. Just a thought.

Posted by: J.B. Heaton | Feb 7, 2019 8:08:35 AM

Some states also offer lifetime appointments to their judges, who typically are less experienced than federal judges, but can eventually become federal judges.

Many academics have apprenticed under another academic through a PhD program, just as many judges have apprenticed under a lawyer in practice. In any case, by the time someone moves to a strong university that can offer real job security (tenure is only as stable as the institution you are at), they have many years of experience.

I think the critical question is whether we want professors to be unbiased and impartial, or to be chasing citation counts and placements by any means necessary.

Posted by: Michael Simkovic | Feb 7, 2019 9:49:25 AM

Thanks to you and Brian for letting me participate in this discussion. I appreciate it.

Posted by: J.B. Heaton | Feb 7, 2019 5:28:47 PM

In the 1980s and 1990s, many law schools attempted to raise their tenure standards by denying tenure to more members of their junior faculty. I haven't seen any rigorous count (and the popularity of stealth tenure denials may make such a count impossible) but my impression at the time is that the denials disproportionately fell on women and minorities, and that the differential impact could not be explained by differences in scholarly productivity. Legal scholars doubtless hold different views about whether the benefit to schools of having established apparently more stringent standards balanced the detriment of a markedly less diverse faculty. I'd be skeptical of any assurance that we've evolved so much since then that such a thing wouldn't happen now.

Posted by: Jessica Litman | Feb 8, 2019 8:51:29 AM

A fair number of very good law schools hire faculty members right out of Supreme Court clerkships and sometimes federal circuit court clerkships, or with a clerkship and only two years of experience, so I don't think it is safe to say that by the time a professor arrives at a law school where tenure is a meaningful protection, he or she has many years of experience. Obviously some do and some don't. I am also not sure that an apprenticeship in a PhD program has a great deal of value. All that said, I agree that we want unbiased and impartial professors whose scholarly pursuits deliver value. I am also grateful for the opportunity to join in this discussion.

Posted by: Doug Richmond | Feb 8, 2019 3:02:44 PM

I want to flag a different cost from low tenure standards: the effect on entry-level hiring standards. To the extent that schools have low tenure standards, it puts a lot more pressure on entry-level hiring and makes schools risk averse. As a result, schools are looking for candidates with more extensive track records--that is more publications. That generally means candidates who have gone through a fellowship or a PhD program. This disadvantages candidates who do not have the financial or familial ability to go through post-JD "finishing school" of some sort. My intuition is that there is a disparately negative impact on certain demographics, such as candidates who come from more modest financial backgrounds (e.g. first generation college graduates, and often candidates of color) and candidates who have families to support. Low tenure standards seem to be privileging well-off, childless candidates. (And the latter group then also benefits from not having the demands of child care competing against writing.)

While I take J.B. Heaton's point that the skills sets for scholarly and practice success aren't the same, there are some individuals who have both. Some have been successful partners before turning to the academy (e.g. Steve Schwarcz) and others have been successful academics who now also wear partner hats (e.g. Howard Shelanski). To the extent that lower tenure standards result in higher entry-level hiring standards and a de facto finishing school requirement, that adds to the opportunity costs of getting in the academy, which might discourage some dual-skill players from becoming academics.

Posted by: Adam Levitin | Feb 9, 2019 8:05:33 PM

Without students, there would be no law schools. Surely teaching and our obligations to our students should be front and center in all law schools, including for those still in the tenure process. Yet I see little mention of this in the above post and comments. Increased scholarship requirements--the focus above--will compel junior faculty to spend even less of their time and energy on their students, surely the reason we are all here in the first place.

As a matter of principle, law school should be about the students. Even if one did not accept this, at some point decreasing the emphasis on teaching will end up damaging the ability of any law school (even one at the top of the rankings) to attract students, as social media spread the word that the quality of the education at that law school is declining. We charge our students exorbitant amounts of money to educate them. Surely we should focus first on meeting that obligation.

And don't get me started on service obligations, which an increased focus on scholarship will require pre-tenured faculty to reject in favor of spending their time writing.

I apologize if I missed a discussion of the consequences to teaching and service in the above conversation. At a minimum, the discussion of the risks of increasing scholarship obligations did not focus on the core function of any and all law schools: teaching.

Posted by: Ellen Wertheimer | Feb 11, 2019 6:56:13 AM

The focus of Professors Chilton et al. was in particular on tenure standards at the top law schools, all of which centrally have a scholarship mission as important as the teaching mission. If someone had a relevant metric for teaching competence, that topic could be explored as well, but I don't know of one.

Posted by: Brian Leiter | Feb 11, 2019 11:28:49 AM

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