Victor Fleischer has a very thoughtful post at Dealbook on the possible purge of the untenured law school faculty at Seton Hall. He makes the important point that eliminating untentured faculty simply because they are the most vulnerable is shortsighted:
The situation at Seton Hall is representative of many other non-elite law schools. Firing untenured faculty is a shortsighted approach to managing an academic budget. It encroaches on an important principle of academic freedom, namely that a tenure decision should be based on the merit of the case, not the budget of the department.
There are better ways to shrink a law school budget. The size of the tenure-track faculty can shrink by retirement and attrition, not involuntary termination. Post-tenure review (by faculty, not administrators) can ensure that faculty members remain productive. Libraries can be moved online. Clinics can be closed, and adjunct faculty can be better utilized to team-teach practical courses alongside research faculty. The size of the administrative staff can be pared down, especially those who manage programs that might be considered luxuries.
Professor Fleischer is doing the right thing by harnessing the principles underlying tenure, namely academic freedom, to defend the untenured professors. But there is no escaping the fact that the pathologies of the tenure system have created this situation, and that there is an extremely obvious problem at work here that most people are reluctant to discuss. It would be a shocking coincidence if the seven least productive and most expensive faculty members happened to be the seven most junior ones. In fact, the reality is likely the opposite. Seton Hall has a great faculty, but a quick tour through the faculty directory, as in almost any law school, will turn up at least seven full professors who haven't done all that much of significance since the Reagan administration. Why aren't they on the chopping block?
The elephant in the room (or the Hall, in this case) is the real scandal of the law school crisis. Untenured professors are not driving the cost of legal education. They tend to work the hardest, have the best credentials, and get paid the least. The cost of legal education is driven by tenured professors who have "checked out." Many of them have salary-to-productivity ratios that would make Robert Rizzo blush. Tenure has important purposes, but protecting unproductive senior faculty should not be one of them. Yet the tenure system has evolved into a form of entitlement for highly compensated and unproductive senior faculty that is financed by the debt of law school students.
Junior professors, like support staff, tend to be the most vulnerable in the law school, and therefore the first to go. A long-term vision would suggest that the most highly compensated senior professors take the salary cut necessary to preserve the future of the law school. If they choose not to do so, however, it might be entertaining to publicly compare the productivity and compensation of some of the tenured professors over the last decade to that of their untenured colleagues over the past few years.
Where shall we begin?