Home -> Law Blog Directory -> Legal Commentary Blogs -> Balkinization

Legal Commentary

: Balkinization

On Tenure

By Jack M. Balkin

That academics are fond of tenure is hardly the most surprising news of 2008. Tenure or the possibility of tenure is part of our benefits package. Many of us make important life decisions, including the decision to be academics, on the basis of tenure or the possibility of tenure. Eliminating tenure, from this perspective, is unfair for the same reason that eliminating any job benefit without compensation is unfair. I?ve never gotten an end of the year bonus when my university has had a good year, but I do not think that is a good reason for eliminating the end of the year bonus in good years for jobs where that (and not tenure) is an understood perk of the position.

How eliminating tenure would influence a great many academics is unclear. Could one bargain for tenure? Most of the applicants we interview at the University of Maryland School of Law receive more than one job offer. Suppose rather than meet a higher salary offer, we offered tenure on an individual basis. We might wind up reproducing the tenure system for almost everyone (or the same percentage of the faculty would have tenure as is the case today). Of course, professors would take lower salaries in return for tenure, but a good case can be made that this is already the case. Law professors make a nice living, but I suspect the average salary of persons who made Harvard Law Review presently working at law firms is substantially higher than the average salary of persons who made Harvard Law Review presently teaching law.

Eliminating tenure might even raise professors salaries. Presumably, if tenure were eliminated, more professors would be terminated and the result would be more job openings for the rest of us. The law of supply and demand tells us that if job openings increase and the job pool remains the same, salaries will go up. This is a vast oversimplication. Lots of complications. The more general point is that the elimination of tenure may not be a zero-sum game for the professorate as a whole. Many of the most vigorous defenders of tenure might gain financially if tenure was abandoned. My non-acdemic friends, who question tenure, always think of the incompetent professor who could have been fired. They never think of their favorite professor, who might have left for a better university and salary in the absence of tenure.

Put simply, professors opposed the elimination of tenure per se for the same reasons everyone opposes the elimination of a job perk without any compensation. Better professors may also be for tenure, because independent of any virtues or vices of the practice, they are the sort of people who prefer security to greater opportunities for higher salaries. Perhaps we should nevertheless eliminate tenure, but people should be aware that the result may not be better professors in general, but merely better professors at the best paying universities and, possibly, different sorts of people becoming professors.

Full post as published by Balkinization on April 18, 2008 (boomark / email).