Academic journal article Boston College Law Review

Tenure Revisited

Academic journal article Boston College Law Review

Tenure Revisited

Article excerpt


I am a long-standing beneficiary of tenure for law professors. I have been teaching law full-time for decades, and have been a tenured full professor for over 30 years. So what follows may seem somewhat hypocritical-as a beneficiary of tenure, I am now questioning its continued desirability in law teaching. This essay will explore the advantages and disadvantages of tenure and conclude that tenure, in its current form, has disadvantages that outweigh its benefits as a whole.

Tenure in academia dates its origins to the twelfth century in Europe and gained momentum in the nineteenth and twentieth centuries.1 Its purpose was to promote academic freedom by providing job security.2 No longer could professors be fired because of controversial views. Over time, additional justifications for tenure have been offered, particularly for law professors: it incentivizes highly qualified individuals to leave lucrative private legal practices to enter the academy; it builds a cadre of professors who are committed to the institution's long-term welfare; and it allows faculty members to focus on developing scholarship in a thoughtful and thorough manner, without fear of treading on "sacred cows."3

All these justifications carry weight, without doubt, and represent a boon to the law academy. At the same time, faculty members sometimes abuse tenure, knowing that they cannot be fired or even disciplined, except in the most extreme circumstances. Professors may shirk their duties in a variety of ways. This "slacking off" is highly detrimental both to law schools as institutions and to the students whose education suffers as a result. Consider the following cases:

The Checked Out Classroom Teacher

Professor A has had tenure at her law school for more than thirty years. Originally, she was a fair classroom teacher, teaching a wide variety of core and specialized courses. Her teaching, though never spectacular, was good enough to garner her tenure. Over the years, the quality of her teaching has declined. She has not kept up in some of her subject areas, either through laziness or indifference. She feels aggrieved that she has not been promoted into administration, with its higher compensation, additional prestige, and greater control over law school affairs, and she takes out this feeling of grievance by putting less and less into her course preparation and classroom performance. In addition, her performance in core courses has become so deficient that the students are complaining loudly to the administration, so much so that she has been moved into small "boutique" courses with low enrollments. Of course, such specialized courses can be a useful part of a law school curriculum and enrich the students' education. But a law school facing financial and personnel cutbacks, as many are, cannot afford to have professors teaching only such courses. Furthermore, her chances of moving to another law school where she might be happier are slim.

So what can the law school do about Professor A? The school officials believe that they are not getting the proper return on their investment, especially in light of her high salary. Termination or suspension is not available under the school's current stringent rules for discipline of tenured faculty. The dean can try to prod her to improve her classroom performance by giving her no or low raises. But the range of possible raises is often very narrow in universities, and at her level of seniority Professor A already earns a healthy salary. Some commentators have suggested that increased mentoring may assist an underperforming classroom teacher in improving teaching skills. Professor A, however, has no interest in such mentoring and believes that the students should be grateful for her knowledge and experience. Thus Professor A remains in her sinecure, and the students and the institution suffer as a result.

The Indifferent Law School Citizen

Professor B is a fine classroom teacher, offering both core and specialized courses. …

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