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There is No Deadwood Effect: What Moneylaw Gets Wrong About Tenure

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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6 Responses

  1. Jason Wojciechowski says:

    You’ve been seduced by popular dislike of Burrell: Pat was below average in 2003, and just over average in 2004, but in 2005-07, his OPS (adjusted for park) was about 25% better than league average. That’s very good, very consistent work.

    One common thought about why players seem to hit better in contract years is that, due to baseball’s reserve structure, players generaly *are* better before free agency than they are after. Most players don’t hit free agency until they’re around 28, 29, 30, which is past their prime. (This is, of course, a prime tenet of Billy Beane’s grand plan.)

    Is it possible that an analogous thing is true for faculty? Maybe law is not the same as mathematics, where you’re done at 40 (if you’re lucky!), but certainly younger people usually have, at the very least, more energy than their older colleagues, and it’s possible that they have more creativity and more analytical ability as well. So perhaps *effort* isn’t actually decreasing at all (in baseball or academia) but ability is.

  2. I’m generally in favor of tenure, but I don’t think your poll is asking the right question. Probably a majority of professors granted tenure will continue to produce as they had prior to tenure. The argument against tenure, as I understand it, is this: (1) there will be a group of professors that will slack off and become deadwood — tenure protects them; (2) those professors who don’t slack off won’t need tenure since they will be productive.

    There are, of course, other reasons for tenure, such as protecting professors with unpopular views.

    Another problem is this: When some older professors were hired at some schools, the expectations of publishing were a lot less than today. They are meeting expectations based on what was expected of them when they were hired, but the school may have changed and moved in a more scholarly direction. On the one hand, tenure protects these professors from the unfairness of a dramatic change in job expectations. But on the other hand, in most other careers, those who no longer fit the expectations of the company are quickly driven out.

    I think it is wrong to look at the effects of tenure across all professors. The real cost of tenure is that a few professors on most faculties will become deadwood — not that everybody will be less productive. Is the cost of holding onto this deadwood worth the benefits of tenure? I believe that this is the key question.

  3. CDP says:

    Do you really think a guy like Burrell is motivated by the money? He’s earned over $50 million to this point in his career and even with an indifferent year this year his next contract would have likely been at least this much (see Matthews, Gary). The marginal difference between $100 and $120 million in career earnings doesn’t seem like a sufficient motivation for the improved performance. Based on the articles you linked, the data doesn’t seem to show that baseball players – even those looking for their first big payday – are motivated by the desire to get the contract, contrary to popular perception. Similarly, it seems from the studies that tenure doesn’t cause professors to put forth less effort.

    I’d argue that there are two similarities between baseball players and law professors that make them relatively unique: (1) The barriers to entry in both professions are high; and (2) Success or failure in both fields is public. Everyone knows a baseball player’s key stats; a faculty member’s colleagues know the quality of his/her placements and even, thanks to sites like rate my professors, how good a teacher he/she is perceived to be. In some ways, the public nature of a law professor’s work may serve as a way of holding professors accountable that makes alternative means of holding professors accountable, like abolishing tenure, less necessary.

    And to Jason’s point, lay off Burrell! He’s been in the Top 20 in the NL in OPS for the last three full seasons – not a lot of players can say that. . .

  4. ms says:

    The problem is not with tenure per se; particlarly in law schools, deans have various incentives to encourage productivity (ranging from the summer stipends to scheduling). The real problem for law schools is that tenure is too widely available. Most individuals talented enough to get a job are also talented enough to write two articles, the de facto standard even today (with some exceptions and variations). But writng for tenure provides little indication of a desire to write after tenure and my sense is there is a significantly higher percentage of Professors who do not write in law schools beyond tenure compared to other academic departments, where tenure is often much more difficult to obtain. This is true not just at mid or lower-level schools but at many of the top schools too. Ironically, the whole system seems a bit backwards: without PhDs, our predictors in law school are very weak(clerkships, grades, law review notes, articles written at night or in some fellowship), which would suggest that tenure ought to be more difficult to obtain in law school, not less dificult. (This asumes that a dissertation and advisor recs are more meaningful.) At one time, law schools competed with law firms for talent so it may have made sense to give everyone tenure, but that does not seem to be true any more — or perhaps more accurately, individuals who are today deciding between academia and law firm life are not likely to be successful academics because the two are not fungible as law schools have become more academic in nature. But the vast majority of law schools fear geting a reputation for denying tenure, and most law professors are also reluctant to vote against tenure because it has always been so readily available so the cycle continues. I had thought this might change as more PhDs joined law school faculties but that has not been the case, or so it appears.

  5. Jeffrey Harrison says:

    What a strange defense of tenure. It seems to be, “it might not be so bad.” Not speaking for Moneylaw, whose position I think you have stated too simplistically, it seems to me that the only way to assess tenure is to think in terms of opportunity costs. What bright productive people are lost from the profession due to tenure? Also, although I think you make good points about the dangers of counting, my own informal empirical study shows a drop in production once post-tenure.http://papers.ssrn.com/sol3/papers.cfm?abstract_id=931185

  6. Jack says:

    Tenure is necessary to induce faculty to make firm-specific investments. If the institution won’t commit to me, instead of committee or program work, I will do other things (scholarship, conferencing) that will get me rewarded locally but that will also help me get a job at another school.

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