Monday, February 11, 2019
MOVING TO FRONT FROM FEBRUARY 6--MANY INTERESTING COMMENTS, BELOW; OTHER CONTRIBUTIONS WELCOME
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.