Legal Commentary

Rick Hills vs. Brian Leiter on Tenure

By Ilya Somin

NYU lawprof Rick Hills has posted a good critique of Brian Leiter?s (and others?) defenses for tenure (for which see here and here). For my own criticisms of tenure, see here, here, and here.

Some of the exchange between Hills and Leiter has do with possible conflicts of interest in the debate. For example, Leiter attacks Columbia professor Mark Taylor for criticizing tenure when he is about to retire and no longer needs its protection. Hills notes that ?the obvious response is: Tu Quoque. Any currently tenured prof has a conflict of interest far more blatant than Taylor?s: They benefit enormously from the system that they are defending.? In my view, the validity of the arguments for and against tenure is independent of the the subjective motivations academics have for making them. People can make good arguments for self-interested reasons, or bad ones for altruistic ones. Still, as I pointed out in this post, the fact that even many of the beneficiaries of tenure doubt its desirability is an additional reason for outsiders to take the case against it seriously. 

Hills also critiques Mark Bosquet?s argument analogizing tenure to marriages, churches, poker games and other institutions where market incentives supposedly should not apply. In addition to Hills? well-taken points, I would note out that none of these institutions actually give participants life-long protection against dismissal in the way that tenure does. With modern no-fault divorce laws, it is far easier to ?fire? your spouse than for a university to get rid of a tenured professor. Similarly, most churches and synagogues can certainly fire their minister or rabbi if congregation members believe he or she is doing a poor job. The availability of divorce gives spouses better incentives to treat each other well, and the possibility of firing incentivizes clergy to tend to the needs of their congregations. In the same way, abolishing tenure might improve faculty incentives to do good teaching and scholarship. 

UPDATE: Brian Leiter has contacted me to say that he did not mean to criticize Mark Taylor for attacking tenure only when he no longer needs its protection. He states that he believes (as I do) that this aspect of the matter is irrelevant to the broader debate over tenure. I (and perhaps Rick Hills) apparently misinterpreted Leiter?s earlier statement attacking what he refers to as Taylor?s ?highly dishonorable proposal to dismantle the very system that had enabled him to thrive.? I apologize for the mistake. At the same time, I also don?t think that it?s necessarily wrong or dishonorable to call for the abolition of policies that you benefit from.

Full post as published by The Volokh Conspiracy on August 19, 2010 (boomark / email).