Monday, March 5, 2007

Solove on Levitt on Tenure

Posted by Jeff Lipshaw

Dan Solove at Concurring Opinions has launched an interesting riff on Steven Levitt's assertion that there ought not be a tenure system in academia.  My point here is not is to express an opinion on theFreak merits of the tenure system one way or another.  I am new to this system, and don't have tenure, so I will wait a while before jumping into that debate.  But I do want to react to several of the comments which compare job termination and elimination in the business world to what the academy might be like were there no tenure.

My observation from perches at every level of a law firm and at high levels of a corporation is that structure and culture will influence how the organization deals with termination issues.  I'm not sure the corporate model is the right one when speculating about a world without tenure.  There is a model occupying the middle ground:  the governance of a moderately democratic law firm.

"Could a dean fire a "pain-in-the-ass" professor?" presumes the corporate hierarchical model.  It might also presume the model of the more hierarchical (or autocratic) law firms.  But many law firms do just fine with a more congenial model.  Back in my day, for example, our firm had a very, very transparent compensation and advancement system - too transparent perhaps - yet it was possible for a partner to be booted out for cause.  On the other hand, the word was that at Jones, Day, as in most corporations, nobody knew how much anybody else made, and that Dick Pogue made every personnel decision.  (Obviously, the current situation at Mayer, Brown suggests that the hierarchical or autocratic models still exist.)

Moreover, long before I had any idea what it was like to be on a faculty, I described a law firm partnership of the moderately democratic variety as a "loose aggregation of prima donnas."  Let me see.  You had partners who really didn't want to be bothered with administration:  "just let me practice law."  You had partners who wrote angry notes to the managing partner on a regular basis about everything from the coffee machine to office size to global strategy.  You had partners who at partners meetings appeared to be in love with the sound of their voices, even though there was no clear substance being emitted.  You had partners about whom other partners complained for their relative lack of productivity.  You had partners who were technological wizards, and others for whom anything beyond quill pens and inkwells provoked a vehement Luddism.  Sound familiar?  Yet, at least in the fly-over parts of the country, these faculties, oops, I mean, law firms, are, I think, still managing to govern themselves.

This is simply to say that the options, if we look at other models, are not just (a) tenure as it exists versus (b) at-will employment at the discretion of the dean.

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