Law schools face increasing pressures to reduce the costs of legal education. While few people like to talk about it, tenure must be a key component of any cost assessment. In many law schools, salaries comprise a large portion of the annual budget. Tenure is especially expensive because it means an institution grants a (virtually) lifetime appointment without any guarantee that the individual who is tenured will continue to produce at a rate that justifies the salary paid. Tenure is also costly because it reduces an institution’s flexibility: the institution cannot (easily) move somebody out to make room for somebody who would add greater value.
Tenure is ripe for reassessment because law schools have an unusual and often extravagant view of it. While most academic departments are staffed with hordes of non-tenured lecturers, research associates, instructors, and others, in the law school, there is a strong sense that if you are there full-time, tenure is an entitlement.
The traditional reason for granting tenure in a university is straightforward. Tenure provides the security that encourages researchers to explore all questions without fear of being fired. Tenure therefore helps grow the stock of knowledge. Yet tenure in the law school is only loosely related to this goal.
Law professors who engage in scholarly research and writing—typically the full-time doctrinal faculty members—have the strongest claim to tenure. Yet many law schools that honestly evaluate their tenure practices will surely conclude that tenure is given too generously. For one thing, in most law schools, the standard to receive tenure is very low. Many schools require faculty members to have produced just three or four articles published in a student-edited journal. Few schools deny tenure with any regularity to faculty members they have hired pre-tenure. Thus, in general, getting the initial appointment is the hard part in the process; getting tenure five or six years later is comparatively easy. Given that there are many, many well-qualified individuals who try but fail to obtain an initial teaching position, law schools could likely enhance their tenure standards and shrink the number of tenured slots (thereby reducing their costs) with little impact upon the availability of talented entry-level professors.
The other big problem, of course, is that there is no guarantee that the tenured doctrinal professor will continue to undertake research and generate knowledge. As a result, many law schools today have an unhealthy contingent of unproductive and under-productive tenured faculty members. The law school looking at tenure will want to think about how to reduce or eliminate the expense associated with its dead wood (for example, by increasing teaching or administrative responsibilities or striking deals for early retirement).
In some schools, tenure is given to clinical faculty members. There is little justification for this in light of the traditional rationale for tenure. Moreover, the law school that wants to heed the loud calls to expand clinical opportunities in order to produce skilled graduates will find tenure incompatible with that goal. In a rapidly changing legal marketplace, giving tenure to a clinician is a risky bet: once the demands of the market change, the school cannot then hire somebody else with the qualifications to teach the skills that are newly needed.
Sometimes, writing instructors also have tenure. Teaching writing is a difficult job but if the reason for tenure is to protect academic inquiry the law school writing instructor does not need it.
Finally, in many law schools, the head of the library is tenured. This one is a real puzzle. While law librarians obviously perform a valuable service, with rare exception they are not engaged in their own scholarly research (nor do we want them to be). Presumably the tenured librarian is a product of history (once upon a time law schools were not real academic departments: if you tenured a lawyer who arrived to teach, nobody minded if you tenured the librarian as well). If one were to consider things with fresh eyes, few law librarians would also be tenured professors.
To be sure, tenure in the law school might reflect some other value such as a desire to hold onto somebody who is exceptionally skilled or who makes important contributions to the institution. But there are other perks that can serve that goal, without incurring the expense and inconvenience of a lifetime commitment. And if there really is competition for a particular individual, a grant of tenure isn’t going to be enough to fend off poachers.
The cost-conscious law school of the future might well have a small number of tenured professors (perhaps comprising 20% of the faculty at some schools) whose main job is to engage in serious research. Some other members of the faculty will have long-term contracts; some will have short-term contracts; others will be (like most employees in the United States) employed on an at-will basis.
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