Tenure for law professors is in danger. This week, news came out that the ABA might loosen the tenure requirements for law school faculty. This potential development has many professors up in arms. Through their lobbying group, the Society of American Law Teachers, professors argue that “changing the accreditation standards to weaken the requirements regarding tenure would have enormous and unfortunate implications for the quality of legal education." Is this really the case though? As we all know, law professors are interested only in preserving a privileged lifestyle, regardless of law graduates plunging into a financial hell as a result.
In his brilliant book, Failing Law Schools, Brian Tamanaha detailed the ABA’s historical role as a lobbying group that fixed law faculty salaries at an artificially inflated level. This was accomplished through the requirement that a majority of law faculty be tenure track positions, as well as bald price fixing through the release of salary information among professors to aid faculty negotiations. “In 1995, those accusations were leveled by the Department of Justice in an antitrust suit that charged that A.B.A. standards had artificially inflated faculty salaries. The A.B.A. signed a consent decree, agreeing to a number of strictures intended to pry the process out of the hands of legal academics and end the fixing of salaries.”
The Society of American Law Teachers (SALT) has taken up the ABA’s mantle. Today, with the intense competition created by law schools’ obsession with prestige, law faculty salaries are higher than ever. These high salaries drive the runaway inflation in the cost of a legal education. Yet, whenever a proposal is made to reduce professor salaries, SALT rides to the rescue and vociferously fights on the professors’ behalf. SALT has also taken up the annual salary survey that the ABA was forced to discontinue due to the aforementioned 1995 Department of Justice consent decree.
Tenure allows law professors to maintain the best part time job in America. Law professors claim that tenure is necessary to help maintain scholarly output. But does tenure really encourage scholarly output? Witness the case of Barbara Holden-Smith, law professor at Cornell. According to a post on Ramblings on Appeal, Holden-Smith has not published any scholarship since 1996; at least none that was published in a law review or journal. As of 2005, the teaching load at Cornell is 3 courses per year. So, for the last 17 years, Holden-Smith has worked 20 hours or less during the school year while collecting a handsome salary for the privilege.
Failing Law Schools touches on the depths of law professor laziness in much more depth. As dean at St. John’s, Brian Tamanaha was tasked with finding a way to motivate tenured professors to either publish more or increase their teaching load. The annual salaries and summer research grants were not enough. Certain professors operated like Holden-Smith, content to coast. Others fattened their wallets as partners at law firms or consultants. If gratuitous financial motivation is not enough to motivate professors into actually working because they already make so much money, the only option is a mechanism for revoking tenure.
In his extremely self-serving and offensive article on the Huffington Post, Lawrence M. Solan proposes that law firms reduce first year associate salaries. How about your own salary, Mr. Solan? Might Mr. Solan forgo his summer research stipend so that students at Brooklyn Law School can avoid Income Based Repayment program?
In an upcoming article in Stanford Law & Policy Review, Brian Tamanaha pulls back the curtain: ““Tuition increases meant yearly salary raises, research budgets to buy books and laptops, additional time off from teaching to write (or to do whatever we like), traveling to conferences domestically and abroad, rooms in fine hotels, and dining out with old friends,” Tamanaha writes. “A sweet ride it has been.” Further, “SALT’s major initiative on the challenges facing legal education was to sponsor a conference in Honolulu in December 2010,” Tamanaha writes. Though the rising cost of legal education was on the agenda, “the greatest urgency [was] placed on perceived attacks against the law professoriate.”
Until we change the current tenure system, the cost of legal education will continue to rise unabated. If the law schools themselves are unwilling to do so, then the market will make the changes for them, as prospective law students see that law school holds little promise of a secure future. Like American car manufacturers in the 1980s, law professors refuse to change while the world is passing them by. Perhaps a few of them will soon join their former students in the bread line.