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On the costs of denying tenure

Brian Leiter

I agree with Prof. Simkovic that there are costs to denying tenure if only one or two law schools have serious tenure reviews–so that's our collective action problem in law schools.  In almost all other fields, elite departments deny tenure at much higher rates than in law, where 95% get tenure according to Professors Chilton et al.  By contrast, in other fields, rates of tenure appear to hover around 25%, maybe a bit higher.  Somehow all these other fields have pulled this off; the interesting question is what's holding law back?  I speculated about this many years ago (2004, so bear that in mind).  I'm opening comments for thoughts from readers and further responses from Prof. Simkovic and other academics.  (Comments are moderated, and may take awhile to appear, so be patient.)

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7 responses to “On the costs of denying tenure”

  1. Mark Weinstein

    Another factor to consider is the positive signal sent by getting hired at a place that has a low tenure rate. It is possible, indeed likely, that a professor might anticipate better opportunities in the lateral market after getting denied at a highly selective place than she had in the rookie market. This is the argument that was made to me by my mathematics professor in 1967, whom I spoke to after he told me that he had just been denied tenure. He told me he knew he would never get tenure, but it was still worth it. This is, of course, especially true for students coming from schools a bit below the top, or from overseas. In these cases the positive signal is quite strong, even if there denial at a later stage.

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  2. Orin Kerr

    Brian, I think your 2004 speculation is likely the best explanation.

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  3. Ed Swaine

    As to why law schools haven’t changed to adjust to their more academic aspirations, I think the points you made are sound, including that practices are sticky . . . though I’d also reckon that there’s at least as much continuity in law schools as there is change.
    A closely related question, though, is why — regardless of whether law schools have changed in their aspirations — universities continue to tolerate differences in tenuring, particularly given economic pressures on law schools and on universities more generally.
    My guess is that most law schools can still claim, quite plausibly, that the costs in terms of future recruitment would be serious. I’d put less emphasis than Professor Simkovic on the availability of private sector alternatives, and more on (a) the difficulty of being a first mover among many schools that offer comparable positions in the same hiring cycle; (b) the difficulty, having lacked a culture in which top schools *frequently* fail to tenure, of showing candidates an established practice in which non-tenuring is (i) more a signal of high faculty standards than something idiosyncratic or inconsistent, and (ii) non-fatal, because there’s a good record of finding fallback positions.

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  4. Michael Simkovic

    **Tenure rates in law and other fields are more similar than you think **
    It is hard to generalize about typical tenure rates given variation by discipline and institution. Some disciplines and institutions have tenure rates that are close to law:
    https://dynamicecology.wordpress.com/2014/07/21/dont-worry-too-much-about-whether-youll-get-tenure-because-you-probably-will/
    ** Law schools compete with private sector employers for entry level talent **
    In the post above, Brian Leiter asks why law schools can’t reduce tenure rates from around 90 percent to around 25 percent. He links to one of his earlier blog posts which has a number of shrewd insights, in particular:
    “traditional qualifications for law teaching–excellent grades in law school classes, a published student note in the Law Review (which digested what judges were doing, and explained it), clerkship(s) with excellent judges and/or practice experience with excellent lawyers. . . . Folks with those qualifications also could earn a lot of money in the practice of law, and since the practice really wasn’t that different than the scholarly side–a bit less relaxed, to be sure, a bit less reflective–law schools, to recruit these super-smart lawyers, had to both pay reasonably well (better than the liberal arts, to be sure!) and offer something that practice couldn’t necessarily offer, namely, job security (i.e., tenure, or life-time employment, barring gross misconduct).”
    My view is that this continues to be largely true today, at least in many specialties. Law schools now value PhDs—particularly in fields like economics, finance, math, and political science—but they also value strong academic performance at a top-flight law school, work experience at large corporate law firms and clerkships with federal judges, especially the Second and Third Circuits and the Supreme Court.
    I cannot speak outside my own experience, but what I teach in my classes—corporations, secured transactions, corporate bankruptcy, corporate finance, and taxation—continues to be relevant to legal practice and finance, at least according to many of my successful former students.
    Well placed candidates for business law teaching position typically graduated at the top of the class at a top 5 law school, perhaps clerked for the Second or Third Circuit, worked for 3 to 6 years at a top 5 New York law firm or an elite investment bank or consulting firm or hedge fund, and often have a PhD in economics or finance or math with peer reviewed publications.
    This might sound like an absurdly high bar to meet, but with a few minor exceptions it is an accurate description of Thomas Brennan who was recently hired as a Tax Professor at Harvard.
    https://today.law.harvard.edu/thomas-j-brennan-01-join-harvard-law-faculty/
    There are many other examples. John Coates at Harvard was hired after becoming partner at Wachtel. Ed Kleinberg at USC was a partner at Cleary Gottlieb and the head of the JCT. Tony Casey at Chicago was a partner at Kirkland and Ellis. Todd Henderson was an EM at McKinsey and a litigator at Kirkland & Ellis.
    Particularly at the entry level, law schools continue to chase the same talent pool as large law firms, investment banks, hedge funds, and Fortune 500 companies. After a few years in the academy many law professors will become less marketable in the private sector, although some manage alright for themselves. A tenured tax professor who I will not name out of respect for his privacy recently left a low-ranked, financially distressed law school for a position at an elite accounting firm which added a zero to his salary.
    Tenure rates vary by discipline and are a function of outside options and academic pay. In specialties where private sector options are attractive because of a combination of higher compensation and good working conditions, tenure rates tend to be higher. Otherwise universities encounter shortages hiring faculty.
    Shortages are currently particularly acute in academic computer science departments because of the attractive options available at technology companies.
    I doubt that most law professors would have become partners at top 5 New York law firms had they remained in practice, but they probably could have become partners somewhere or gone in house at a large company that offers attractive pay and working conditions. According to After the JD, in house corporate lawyers are among the most satisfied with their careers.
    At many law schools, differences in pay between private sector and academic options are extreme—typically hundreds of thousands of dollars per year, assuming that the candidate would not have become a partner at an AmLaw 50 firm, and potentially over a million dollars per year if they would have.
    Compare:
    https://www.saltlaw.org/wp-content/uploads/2018/11/SALT-salary-survey-2018-final.pdf
    with:
    https://www.law.com/americanlawyer/2018/11/21/partners-at-these-am-law-200-firms-make-less-than-cravath-associates/
    https://en.wikipedia.org/wiki/List_of_US_law_firms_by_profits_per_partner
    Lawyers at big firms can fairly quickly accumulate multi-million-dollar portfolios of investible assets. With a decent rate of return and a bit of thrift, that means they could in theory retire at the age of 50 and enjoy a higher income, more security, and more flexibility than a tenured professor.
    The gap has grown over the years as high end corporate legal practice has become more and more profitable.
    Those kinds of attractive private sector options aren’t generally available to people with PhDs in many other fields in humanities or social sciences. Indeed, without naming names, I know a retired Partner at Davis Polk who, many years ago, left a tenured professorship in literature at a well-reputed university to attend law school and take an entry level job at Davis Polk, for the mere chance of becoming a law firm partner.
    Being a law professor is a great job, especially after tenure and for those at strong institutions that promote faculty research and protect academic freedom. I’m grateful to USC and for the opportunities that have been given to me.
    But being a law professor is not the only great job in the world.
    ** Exit options are generally better in the private sector than in the academy **
    Law firms can offer slim chances of making partner to their associates because they offer high pay for associates, great exit options for many of those who do not make partner, and extremely interesting and rewarding work for those who do.
    By contrast, legal academics who do not obtain tenure generally do not have attractive exit options. Entry level candidates should be aware of this. It is possible that tenure denial might be less devastating if it were more common. However, even in Economics where tenure denial is more common, candidates denied tenure—other than those leaving elite institutions—struggle to find other academic jobs.
    https://doi.org/10.1080/00036840010009856
    Reducing tenure rates could dramatically reduce the appeal of an entry level job as a professor, particularly for the risk-averse individuals who are willing to give up millions of dollars in lifetime compensation for greater job security.
    All else being equal, this means that universities would lose the entry level war for talent to law firms and banks and hedge funds and tech companies more often.
    ** Law schools can recruit laterals and award merit pay instead of churning junior faculty **
    Elite law schools undoubtedly make bad hiring decisions at the entry level because they do not have enough information about candidates. That is why schools that can afford to should focus on hiring laterals with a proven track record working at lower ranked institutions.
    Lowering tenure rates would fundamentally transform the culture of many institutions. I would prefer to hire people whose research programs are motivated by intellectual curiosity, the joy of discovery, and the thrill of creation rather than the fear of unemployment.
    At-will employment is the rule in the United States, but in much of the rest of the developed world, employers can only fire employees for cause. Given the importance of insulating education and research from outside influence, it is all the more important that people in these positions feel safe and protected.
    Personnel decisions are error prone and judgements are subjective, it is better to lower the stakes. Rather than terminating people, let compensation vary by whatever a school considers to be “merit”—as many schools do now through endowed chairs, research stipends, and non-uniform pay increases.
    ** The conclusions of the study regarding “over-placed” faculty at top schools and persistence of individual citation counts need to be rechecked with a more rigorous research design **
    Firing people, like hiring people, is a high stakes decision where errors can be made, particularly if these decisions are based on limited information.
    For example, in asserting that: (1) faculty member’s pre-tenure citation counts predict post-tenure citation counts; and (2) that there are many over-placed faculty members at top-tier institutions, Chilton, Masur and Rozema do not take into account something extremely important.
    Citation counts vary by field of specialty, and professors usually don’t switch specialty. Thus the persistence of citation counts may reflect in part (or in whole) the persistence of field effects.
    Chilton Et al. can and should include field dummies and probably also institutional rank dummies in their regression in Table 2, and then see if their results still hold. (They can deal with the problem of cohorts by measuring citations as of a certain number of years after entering the legal academy or after obtaining tenure so as to be more uniform across cohorts).
    Institutional rank dummies make sense because of letterhead and institutional resources effects. Since faculty rarely change institutions, we don’t know whether persistence is due to their own abilities (which would translate to another institution) or to the advantages or disadvantages that come from their institutional affiliation.
    The “over-placed” faculty at top tier schools may simply be those in smaller fields where fewer research faculty work at law schools, there are fewer people to cite each other, and therefore citation counts are lower.
    There are reasons for these differences which have nothing to do with merit. If some fields, like Constitutional law, have heavy representation on law school faculties while others like tax are lightly represented, then citation counts in Constitutional law will be systematically higher simply because there are more Constitutional law professors. Similarly, Constitutional law articles may place in top law reviews more because many student editors are required to take Constitutional law but are not required to take Tax, and so are more familiar with Constitutional law.
    These are not reasons for law schools to load up on more Constitutional law scholars and shed Tax faculty— particularly if they care about preparing students for the job market. Many law schools already have more Constitutional law scholars than they have Supreme Court clerks in a given year—or even in the entire history of their institutions. Many law schools have too few tax scholars to field a full range of tax courses, which—in combination with strong demand for tax practitioners—has led to the necessity for Tax LLMs.
    ** Citation counts are based in part on luck and in part on outside support from ideologically motivated actors**
    There are other problems with citation counts like luck: Joel Reidenberg came up with Lessig’s Law is Code idea before Lessig, but Lessig gets all the citations. There are also serious concerns about perverse incentives. Faculty can boost their citation counts by being cited in newspapers or think tank reports. But newspapers and think tanks typically cite material because it fits with the story they are trying to tell or the policy they are trying to advocate—often because it is good for their owners or sponsors–not because it is methodologically rigorous or factually correct.
    We cannot be institutions that promote science while outsourcing our tenure decisions to the outcome-driven standards of the Wall Street Journal or the New York Times.

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  5. Brian

    Just a quick note regarding my point about tenure rates: I meant tenure rates at elite departments, not overall. At elite departments in philosophy, in economics, in history, in psychology, indeed in any field I know something about, the tenure rate is not near 95%, which is what Chilton et al. report it is for elite law schools.

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  6. Jason Yackee

    Assuming that the number of citations that the law review system is able to produce is fixed (law reviews can’t/won’t publish more articles, and/or won’t allow/require the author to include yet more string citations), then isn’t the effect of encouraging faculty to publish yet more citable research going to simply be replacing the citation of some faculty member with the citation of another? In other words, is “impact”, systemically, subject to some sort of upper limit (and are we already there), such that one school increasing its faculty impact (by denying tenure more aggressively to weed out those who don’t produce sufficiently impactful research) merely reduces another professor’s, or another school’s, impact?

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  7. anon

    The tenure process works best when faculty have shared standards for evaluating scholarship. This isn’t always the case on law faculties. To the extent that legal scholarship is normative, assessments often depend on the normative commitments of the readers. Doctrinal and interdisciplinary scholars do not always value each other’s work. If there are no shared standards, tenure decisions can descend into slugfests. This means not only questionable tenure decisions (in both directions), but also negative repercussions for recruitment and faculty culture.
    In theory, higher standards for tenure could benefit the legal academy. Whether they would work well in practice is a more complicated question.

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