Why Hasn’t Efficient Breach Killed Tenure?
posted by David Zaring
Hi, everyone. Posts on my own scholarship to come, but why not begin with some questions about the institution of scholarship more generally?
Perhaps inspired by the latest shenanigans by the purportedly wild eyed radicals on the Harvard arts and sciences faculty, there’s been some gnashing of teeth about the tenure system. Tenure sure is a unique term in an employment contract. There’s no similar job security for artists, novelists, or journalists. Do academics really deserve better? Do they deserve stronger protections against termination than, say, civil servants (as an administrative law guy, when someone says “job,” I think “federal pay grade”)?
I wonder. But I also wonder why, if tenure begets mediocrity, deans don’t simply fire the tenured professors they don’t like, and present them with big breach of contract damages checks after doing so. Not every institution could afford to do so, of course, but some assuredly could – I’m looking at you, Harvard. And, while we’re engaging in a bloody-minded thought experiment, I also doubt that the regulatory protections against dismissal that tenured professors enjoy – deaccreditation or probation by a university licensing outfit, for example – are really the kind of sanctions that rich, established schools have to worry about, even if they decided to clean house in an unprecedented way. Who would disaccredit the Ivy League?
So the way I see it, the death of tenure is something that schools could make happen – they just haven’t chosen to do so. Maybe it’s an implied endorsement of the tenure system, or maybe it’s a sign of path dependence. As someone who sure would like to get tenure, I hope this unexercised power suggests that the system is a benign one. But I’d welcome explanations of tenure’s survival in light of what seems to me to be a rather delicate position.
March 6, 2006 at 12:49 am
Posted in: Law School
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Responses (16)
Alfred L. Brophy - March 6, 2006 at 2:01 am
Very interesting post and creative idea. Always glad to see damages knowledge put to use. There’s a lot to say about tenure and ways that universities have of insuring that faculty continue to produce, even once they have tenure.
But to answer your question: Perhaps because people who are bad enough that we’d want to buy off are bad enough that they can be pushed out, even if they have tenure. Amidst all of the recent complaints about tenure, it strikes me there are two key complaints: first, schools have to continue paying nutty but competent (usually left-wing, but sometimes right-wing) faculty; second, schools have to continue paying faculty who’re incompetent. Tenure only protects the former (and at least at public schools, there are already substantial protections for faculty who write unpopular but sound scholarship). Over twelve years (and several institutions) in this business, I’ve seen a non-neglible number of low-performing faculty pushed out. Not all of them were untenured. Tenure simply doesn’t mean nearly as much as many believe.
RM - March 6, 2006 at 7:45 am
It’s early, and I may be overlooking some clear law, but is it obvious that damages are the correct remedy for breach of a tenure contract? It may well be true, but I’ve never thought about it before.
Dylan - March 6, 2006 at 8:11 am
I had the same reaction as RM. Surely a “permanent,” safe salary is not the sole thing an academic expects from tenure, and possibly not even the main thing. Ignoring for the moment the university’s side of things, specific performance seems much more important as “adequate” compensation for a wrongful denial of the social/research/academic benefits of tenure.
Dylan - March 6, 2006 at 8:11 am
Add: …than in a typical employment contract.
David Zaring - March 6, 2006 at 8:52 am
Alfred – Nice empirical points about tenure, and it’s true that state employees, of which most professors are a subset, are difficult to remove (though people don’t always think that’s a good thing). It’s certainly true that pure incompetence isn’t, in theory, protected – interested to hear that that’s your sense in practice as well.
Dylan, RM – I’m no expert, but I think that specific performance is strongly disfavored in employment contracts – usually because it can begin to look like bondage if employees must specifically perform.
RM - March 6, 2006 at 9:00 am
Specific performance is disfavored in employment contracts. But I think I can say pretty safely that a court sitting in equity would have a slightly different reaction when it’s the employee pressing a claim to be allowed to work. I haven’t looked at any case law, but my guess is that there would at least be a strong argument that went something like “look, you people contracted for a deal where the employer doesn’t get to fire the employee even when he no longer wants him around. Monetary damages are inadequate. Specific performance.” I’m not sure this explains why university presidents don’t just buy out bad professors, but I’m just not sure you could use the courts.
Matt Bodie - March 6, 2006 at 9:30 am
The de rigueur remedy for terminations that violate the NLRA and Title VII is reinstatement and backpay. Employees cannot be forced to perform, but employers can be forced to take back wrongfully terminated employees.
David Zaring - March 6, 2006 at 10:02 am
Matt, very true about reinstatement, but I always thought – again, no expert – it is pretty rare in practice, even in labor and discrimination cases. (And even that the putative availability of these remedies was due to some constitutional fiction about injunctive relief or something.) Though I presume that it would probably be possible for some terminated tenureds to insist that they get their offices back, I wonder how widespread it would end up being….
Matt Bodie - March 6, 2006 at 10:03 am
That being said, everybody has a price. One professor I know has joked that he told his dean, “I need $X million now if you want me to retire. And every year after this, the price is going to go up!”
Matt Bodie - March 6, 2006 at 10:16 am
Looks like we crossed each other in cyberspace. Many employees don’t like reinstatement, because they’ve already found other jobs and don’t really want to go back to work for the anti-union sexual harasser. But your tenured prof would be different — he or she probably likes it there, and the odds of finding a comparable position would probably be low. As a legal matter, the entitlement to reinstatement is fairly well-established.
Kaimi - March 6, 2006 at 2:45 pm
Another reason could be the reputational effects. In this sense, tenure is like working for a white-shoe firm. People don’t get fired from a place like Cravath or Skadden or Sullivan & Cromwell. Well, they’ll get fired for major breaches, like insider trading or sexual harrassment. But not for most other reasons. (Instead, underperforming associates or partners will receive informal messages that they ought to leave).
It’s part of the firm culture. And when a firm starts firing people for efficiency reasons, that sends a huge signal — “we aren’t a true white-shoe firm, we’re just a normal run of the mill litigation shop” — that adversely affects recruiting thereafter.
The white-shoe culture entails costs, and it would probably be most efficient if all of the firms banded together and jointly scrapped some of the unwritten rules. But as it is, there are huge first-mover disadvantages to being the first out of the club.
David Zaring - March 6, 2006 at 6:34 pm
Kaimi – it’s the tall poppy syndrome in academia. Or maybe short poppy, if firing people would be inefficient.
This reinstatement thing is interesting – doesn’t seem to surprise many commenters, but I confess some surprise at the ease of getting specific performance for what’s a pretty common employment contract. Perhaps “job security” means more than “financial security” in the hallways of academe.
Steve - March 11, 2006 at 12:03 pm
The stated preference in the federal law for reinstatement in Title VII and elsewhere seems to me at odds with the principle that equity affords relief only in the absence of a legal remedy, and money damages works to remedy most breach of contract claims, especially claims for payment of money. Lost lifetime earnings is a routine component of personal injury claims, so why can’t money damages for lost tenure be viewed as similarly determinable.
tangren - March 28, 2006 at 3:55 am
I am a Chinese reseacher on efficient breach . But there are some questions that I don’t know:
1.whether is effcient breach a rule or fondamental?
2.whether is efficent breach associated with performent?
thanks
tangren - March 28, 2006 at 3:56 am
I am a Chinese reseacher on efficient breach . But there are some questions that I don’t know:
1.whether is effcient breach a rule or fondamental?
2.whether is efficent breach associated with performent?
thanks
tang ren - April 10, 2006 at 10:35 pm
Dear pro.
I recieved your reply for my question.thank you very much .
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