Academic

"We All Contribute In Our Own Ways" Is Not A Valid Institutional Goal (or, My Tenure?s For Sale: The Final Installment)

By Kim Krawiec

In this four part series on law school culture, incentives, and dysfunction, I reviewed some of the arguments in favor of and against the tenure system and maintained that moving away from the tenure system is unlikely to be the fix-all for institutional incompetence that many critics believe.  The majority of law schools are unwilling to use even the more limited mechanisms at their disposal for aligning individual behavior with institutional goals.  It is more realistic, I argue, to urge schools to clearly define institutional goals, then to adopt proper review, assessment, penalty, and reward strategies designed to implement those goals. 

I?m always surprised at the level of hostility such proposals seem to arouse.  Usually, this antagonism takes the form of objections to the subjective nature of legal academic work or to the difficulty of formulating appropriate metrics by which to judge performance.  But this focuses on the wrong half of the equation. In my opinion, we perceive "the metrics" as the hurdle to this type of evaluation only because we fail to first develop a coherent institutional mission (which requires making uncomfortable choices and value-judgments about what type of activity will be encouraged and rewarded). Once those choices are made, the range of appropriate evaluative mechanisms becomes more apparent, although there may still be disagreements at the margins. 

A law school seeking to distinguish itself as a top interdisciplinary scholarly institution, for example, simply would not adopt the same performance metrics as a law school wishing to package itself as America?s top teaching school.  Whereas the first might adopt publications and citations within top interdisciplinary journals, academic press books, external grants, and invitations to present work at conferences dedicated to interdisciplinary work as their highest-status measures of success, the second is likely to invoke quality measures directly related to its goal of student service.  Again, there?s room for some disagreement at the borders ? how does a lower-tiered peer publication stack up against a top student-edited law review at the first school?  How do teaching evaluations fare against other measures of teaching skill and success at the second?  But surely the position of the statutory supplement and bar journal publication are pre-ordained at School A, given its agenda, and School B, with its goal of student service, has no reason to incentivize poor-quality teachers who sit in their offices behind locked doors writing grant applications. 

Admittedly, most schools are somewhere between the two stylized extremes of Schools A and B.  And in an ideal world quality assessment would be guided by the collective judgment of an informed faculty body regarding who is working, on what, and at what level of excellence.  But those evaluations cannot be wholly divorced from more concrete indicia of productivity, lest they become meaningless opportunities to exercise our own unsubstantiated biases.  In the end, no school can escape the difficult and unpleasant task of defining what it aspires to be as an institution without incurring long-term costs.  The disagreement is bound to emerge somewhere over time: in hiring or tenure decisions, in curriculum-oriented debates, or in the seemingly-out-of-nowhere heated argument about replacing the faculty lounge coffee maker. As I noted in response to a comment on my prior post on this topic, it?s always been my belief that the refusal to engage foundational issues about institutional identity is part of the reason that a faculty will spend three hours arguing over whether to eliminate minus grades and then hire someone for lifetime employment with no discussion at all.

What?s especially puzzling to those of us with a scholarly interest in the ways that organizations operate (and fail) is the frequent assumption by law profs that these problems are unique to the academic enterprise.  Of course, academic departments are different from business organizations, even those in industries where quality is subjective and difficult to measure.  And, as already noted, law schools may face special challenges on this front as compared to other academic units.  But entire consulting industries are dedicated to crafting compensation policies that mirror or transform institutional culture and reduce incentives for conduct that thwarts defined organizational objectives, and large bodies of scholarly work across disciplines are devoted to the analysis of how and under what conditions stated organizational objectives become something more meaningful than rhetorical flourish. 

Your dean, associate dean, or whoever is entrusted with such decisions at your school is already evaluating and compensating you based on something.  It?s not unreasonable to want some sense of what that something is.  So, if you ask your dean, ?why do we even employ, much less pay more than others, that guy down the hall who has two students registered in his class?? and the answer is, ?because he?s an excellent scholar,? don?t you want to know how she arrived at that conclusion?  I do.  And the same goes for the supposedly valuable teacher with no visible publication record.  Because, ?we all contribute in our own ways? is not a valid institutional goal.  It?s an excuse for poor management.

This wraps up my thoughts on law schools, incentive structures, and institutional goals, at least for now.  Thanks for listening ? and to read the prior posts in this installment see:

I.               My Tenure?s For Sale. How About Yours?

II.             Incentives And Institutions: Why Stop With The Banks?

III.     When It Comes To Law Faculty, We?re All Post-Modernists.  

Full post as published by The Faculty Lounge on July 02, 2009 (boomark / email).