“Rewarding the Faculty Who Actually Do Their Jobs”

I'm not at all sold on the title of this thread. I take it that the job includes three elements: teaching, scholarship, and service. The importance of these three may not be equally weighted, and expectations may vary from school to school. But I think it's plausible that a lawprof who doesn't write could be doing their job better than a reasonably productive colleague. Consider two colleagues: Prof A writes a good, though not great, article every year. But Prof A also blows off his classes in order to research, and does nothing but the bare minimum in terms of service (e.g., attends meetings of assigned committees and faculty meetings but does nothing more). Prof B never writes, but is a passionate and effective teacher, and does tireless work for the institution (serves on the hiring committee, etc.). Can we really say that Prof A is "doing his job" but Prof B is not? Can we say that Prof A adds more to the institution by only writing than Prof B does by doing everything else?

I get that scholarship is the coin of the realm in our business, so the answer might be that Prof A really is more desirable. This is also a cooked example, as I think it's pretty rare that you'd see a disparity this stark. In my experience at least, people who are committed to writing are also committed to teaching and to their institutions. I just want to push back against the implication of the title that "the job" is writing and nothing more.

Even without getting into Dave's starkest example, the post and Dave's comment share an underlying premise: Post-tenure, other parts of the job can become more central than scholarship, such that even someone who *never* writes (1/3 of the job, no matter how everything gets weighted) should be deemed a productive member of the faculty because she does a great job at the other two parts.

Accepting that premise (and I still have not figured out where I fall on that question), doesn't Bridget's proposal (or others like it) create a fair incentive structure? If Prof B brings passionate, effective, innovative teaching but no scholarship, why not create a system that emphasizes what each faculty member brings to the table? If a prof does no scholarship (or relatively little) but great teaching, she can contribute to the institution by doing more teaching.

Buried deep inside Jacqui's post and in the comments by Dave and Howard is quiet claim that makes me a little uncomfortable. The claim is that when we look at law schools from the faculty's point of view, the school is the sum of its faculty parts, and the institution is a clearinghouse for a market in faculty labor. Faculty members have jobs; those jobs consist of three pillars of responsibility; and the institutional challenge is to (persuade) (incentivize) faculty to meet or exceed either some baseline level of performance in each of them, or in the aggregate. (The claim doesn't originate with Jacqui or Dave or Howard, and I don't know precisely how much work the claim is actually doing in each of their points.)

But we might look at the question of faculty performance from the point of view of the institution rather from the point of view of the faculty (the individual faculty member), hypothesize that the institution itself has an interest at stake that is greater than or different than "collect faculty labor to provide education to students, produce written work, and govern itself," and ask what the institution wants or needs from faculty in order to achieve that interest. In other words, that interest might be more than or different than clearing a market of "productive" faculty effort. It might consist of or include a vision of the school or a mission for the school that emphasizes one faculty function over others, or that emphasizes an intellectual orientation, or something else.

Setting that kind of institutional orientation in motion isn't easy, and it isn't always the right thing to do. And other things being equal, that kind of orientation should be a product of faculty governance, not imposition by a dean or provost. Perhaps that's why we as individual faculty members don't see it very often, though history, inertia, self-interest, and ABA accreditation requirements have a lot to do with as well!

With my IP students, occasionally I talk about examples of innovation problems that could be diagnosed with public goods analysis. How public goods arguments impact IP structures can be a little abstract for people with no background in economics. Because of the generally monochromatic character of law schools, teaching methods, and other features of legal education today, legal education is an example that seems obvious to my students, and it grabs their interest pretty quickly. Are there free-riders on law faculties? Sure, in the sense that faculties generally underinvest in production (innovation and/or output) or overinvest in consumption (the flexibility of professional commitment that comes with the tenure system), or both. Should those free-riding problems be solved at the level of matrices of incentives and rewards for individuals? Answering that question requires articulating a premise about the welfare goals of the institution. Critics of the ways that public goods arguments typically get translated into IP policy have been working in various ways over the last 15 years or so to think about different kinds of solutions — different ways of thinking about social welfare, and different ways of achieving that, institutionally-speaking. Perhaps some of those innovation arguments generally could be applied to legal education specifically.

Just to clarify for Dave, I put the title in quotation marks not just because I was citing James G, but because I was also questioning the premise that one isn't necessarily "doing one's job" if one does different or less scholarship post tenure. There are other ways to contribute to the institution and that was the thrust of my thread. And while I don't disagree with Mike, I think some schools spend a lot of time thinking about the institutional vision without spending any time thinking about the capacity and interests of individual faculty. If the individual faculty members' collective talents don't serve the "vision" well, you have a mis-match problem in practice. So I think to be a truly satisfying profession and to have a faculty that has (and serves/meets) its vision, you really have to be able to do both ie articulate a general faculty vision and ensure that individual faculty members are fulfilled and contributing in their strongest areas, which is not to say they shouldn't contribute in other areas as well. But some folks I think don't really know how to best contribute post tenure and may need some individual career planning guidance.

This is a very interesting pair of threads. Thanks to Bridget and Jacqueline for starting them.

I suspect the answers to these questions depend in part on what we see as the baseline for the job of a law professor. Historically, the primary job of a law professor has been as a teacher. The one thing every professor must do is teach his or her classes. A tenured professor who doesn't write anything for 10 years not only keeps his/her job, but in a lot of schools wouldn't really stand out much. In contrast, a tenured professor who decides that s/he is not going to teach any classes for 10 years would presumably be fired for failure to do the job, or at least would be a major news story. This suggests to me that teaching classes is seen as the mandatory part of the job, and scholarly writing is seen as the optional part of the job (at least after tenure). It's kind of like the difference between eating and going to the gym: Everyone does the former, but the latter is something that we sort of know we should do but may or may not actually get to given how busy we are with everything else.

If I'm right about this, the challenge is how to get people to go to the gym more — that is, how to get people to do the optional part of the job more often when there are other things they might want to do instead. My guess is that the ways of doing that are relatively limited. Some incentives might work, like paying someone to go to the gym (summer research grants). But it's hard to make someone do it. Probably the best way to get a faculty that goes to the gym a lot is to hire a faculty that consists of gym rats who just need to go to the gym every day. The gym rats will go to the gym no matter what because it's part of who they are and what they do.

The title of the post does not bother me, as we are all familiar with tenured faculty who are not productive scholars and fail to compensate for this with increased contributions in other areas. I like the idea of creating incentives for enhanced performance, but I think such performance needs to be evaluated against a baseline of minimal expectations for tenured faculty. I also think that it is reasonable for a law school administration to create such incentives by penalizing those who are not fulfilling their obligations, if not by increasing teaching loads than by giving such faculty less desirable teaching times and schedules, less autonomy in course selection, etc.

So there's no misunderstanding, I recognize that not all faculty members will contribute to scholarship, teaching and service in the same proportions, but all should be expected to contribute substantially in the aggregate. Specialization makes sense, as it is reasonable to trade off greater contributions in one area for lesser contributions in another (e.g. more teaching or service for less scholarship), but trade-offs must be made. It is not acceptable for a tenured faculty member to treat his or her position as a sinecure, and to devote his or her efforts to external pursuits at the expense of the school. Indeed, if a tenured faculty member is not a productive scholar, and is not compensating for this in other ways (e.g. with more teaching and service) I would think this constitutes grounds for revoking their tenure.

JHA

It would also be a good idea to include and inform the student body and alumni regarding the position of the institution and the faculty. As a CWRU law grad, I can tell you that during my time, I and my classmates were rather perplexed by the relationship between faculty and administration.

While someone might be a 'gym rat' and teach his/her courseload, this does not mean the quality of the teaching measures up. The manner in which the faculty member is treated makes an impression on students that goes with them for years. When a good teacher is gone, the teacher is missed, and there is a sense of dissatisfaction with administrators presumed to make an unreasonable decision. Correct or not, such is the result in the absence of transparency. And yes transparency is expected by a population being trained to question, question, question and paying dearly for the opportunity to do so.

Dave, I would say that neither Prof. A nor Prof. B. is doing their job, at least as we at law schools currently define and defend our jobs to the outside world. We argue (and have convinced our regulators) that there should be a corps of scholar-teachers who combine the two activities, because doing so is good for students and good for society. At least on paper, law schools really do require both. Teaching is obvious; you'll get fired if you skip your classes. Scholarship is also mandatory, at least in theory, because of the tenure system. Scholarship is required to required to get tenure, tenure is supposed to be based on not just past work but on demonstrating that one is able to and likely to continue, and the usual justification for the job security afforded by tenure is based on the continuation of (possibly controversial) scholarship. Against that backdrop, both Prof. A. and Prof. B are coming up short.

Maybe specialization is a good thing. Maybe explicit incentives will backfire. Maybe the tenure model or its rhetorical justification needs some reworking. But it does seem to me that we have reached an unfortunate pass when law schools have to beg and wheedle their faculty to do things that are supposedly central to the job. In a sense, we've created a situation in which tenured faculty get to choose whether to neglect their teaching or their scholarship–or, if they're feeling ambitious, both.

I think that Orin's point about gym rats is mostly right. I also think that there is room for some top-down thinking along with that bottom-up thinking. See (self promotion, though not to a paper) this older post about leadership. (The link is http://madisonian.net/2008/08/18/leadership-and-institutional-capital/ if it does not show up otherwise.)

From the tenor of these comments, I'm assuming that people are focused on carrots and sticks for getting unproductive people to be more productive (and on defining what baseline productivity means in our profession). Does anyone have any thoughts about things that would individually and personally motivate them to change focus/direction in their career so they may be not only more productive but potentially more fulfilled/satisfied? Things like pursuing post-grad studies or retooling research skills in a new area? Linking up with people in other schools and departments to pursue interdisciplinary work? In other words, is there any value to the idea that sometimes people are less productive because they're feeling at a loss re what to do next and how to do it (and to gain a sense of personal satisfaction out of it). Or are we assuming that we all know what we "should" be doing and that there are just a lot of people who want to check out and not do it? I note also that no women have put in their two cents' worth, and it strikes me that women may often have the strongest "change management" issues post-tenure in their personal lives eg when children go off to college and they stop having to balance managing the household with their careers. (Yes, a gross overgeneralization I know, but I am really interested in whether "change management" is relevant here to particular individual careers or not.)

And to add to what Jacqui is asking, perhaps there are some people who "know" what they should be doing next and are wrong about it — that is, would do better work and be more satisfied with it if they sought out a change and had some of the external ideas and influences Jacqui mentions.

That's also a good point, James. Thanks for raising it. I was thinking that we talk a lot about "post tenure review" and not so much about "post tenure mentoring" and maybe we need to think more about both to ensure that people make career planning decisions they are happier with (in the personal satisfaction sense) and that make the most significant contributions to the school if possible.

Jacqui —

I think one reason for the tenor of the comments may be that law schools have a difficult enough time ensuring that all of their faculty fulfill the obligations of tenure, post-promotion, so there's no reason to think law schools are well-suited to provide broader mentoring or life-coach responsibilities. It's one thing to say that law school administrations should recognize that different faculty need different things and should try to find ways to help faculty fulfill their potential, but quite another to suggest that law schools should be responsible for ensuring professors are "satisfied." Job satisfaction is a multi-faceted and variable thing for which there is no set formula, and for which individual faculty members must ultimately take responsibility. It is one thing to make resources available (which, I would add, you have done as associate dean) quite another to expect all who should to actually take advantage of it.

From what I've seen, those faculty who gain the most from administrative assistance and mentoring are those that are already the most engaged in the first place. That is, the productive faculty member becomes even more productive, or finds a new outlet or direction for their energies. I know of relatively few cases of faculty who have gone from zero to hero due to administrative assistance or intervention.

As for change management, many faculty go through dramatic life changes that affect their productivity — I know I have. Marriages, moves, and children are just a handful of the things that alter the way we view our lives and careers. It's nice that some universities offer resources to help individuals manage such changes and remain productive. Again, however, it seems to me that those who take advantage of such opportunities are those who have a degree of motivation already. And (to come full circle) while law school administrations may not know much about how to lead faculty to personal fulfillment, they do know how to provide some degree of motivation, at least at the margin.

JHA

Jon: You may well be right. And I promise I wasn't fishing for Associate Dean compliments! It's just that someone the other day asked me what law schools do, if anything, on these individual level "change management" and "motivational" issues and I said that I suspected most administrations didn't do anything much. And your post may answer the question as to why that is. I have also sat on a number of non-law-school committees and groups where these kinds of questions are asked, so I'm increasingly interested in this dimension of the work-life balance. So I guess I wasn't meaning to imply that these issues should be a law school administration's responsibility – and I suspect most law school administrators wouldn't have the first clue how to deal with some of these questions. I was just interested in how people go about finding career satisfaction and if people are actually able to recognize the importance of identifying and fulfilling their personal goals within this profession. And of course if any law school administrations are working this angle, I'd be really interested in finding out about what they're doing.

Jacqui,
Thanks for taking this thread in an interesting direction. I think that the revised question is an important one (for reasons that include but go beyond work-life balance), agree that law schools generally do this very badly or not at all, and wonder whether other disciplines, schools, or departments do it any better. If they do, then is it possible that legal scholars whose academic training is limited to the JD or equivalent are structurally disadvantaged in thinking about these questions, because they may not have been mentored as academics-in-training and may not have the continuing advice of an advisor/colleague to draw on?

ITA with James that neither prof in my initial example is doing their job as well as they could/should. My point is only that the aggregate contribution to an institution may be greater in the case of a committed teacher and institutional ["servant"? "service provider"?] than a scholar who publishes solid articles frequently but does little else.

As to the issue Jacqui mentioned in the initial post and latest comment, I think there's something to Mike's point that pure incentives may not work in the scholarship setting. Recent work has shown that traditional incentive structures are very good at getting people to perform basic ministerial tasks at a minimum level of competence, but poor at getting them to do something truly creative and memorable, or to do more than a minimum in any event. (Daniel Pink's "Drive" informally summarizes much of this literature, and Dan Ariely's distinction between market norms and social norms also gets at the issue in a slightly different way.)

So an incentive model for scholarship may cause profs to think in counterproductively utilitarian terms. If writing an article a year gets you a two-credit course break, then you may have many profs put no more than the amount of work into the article than they would into a two-credit course. Atmospherically, too, the incentives approach suggests that writing articles is just another workaday task. And while it certainly requires work to write good articles, thinking about this part of the job as a mere requirement makes it seem more like a task you do in exchange for compensation rather than a passion project you'd do for free. And I suspect conceiving of our work as the latter rather than the former is more likely to produce inspired and inspiring scholarship.

I like Orin's gym rats analogy (said the guy who's typing a law-blog comment in the office at 9pm on a Sunday), and it leads me to conjecture that this whole problem may be self-correcting. It's become so insanely hard to get a law job that the process may be increasingly effective at selecting for "gym rats" rather than other types (e.g., people simply looking for a cushy alternative to the law firm life). It would be interesting to see whether this whole concern remains as relevant in, say, ten years.

When I think about it, a post-tenure mentoring model for law faculty (actually, for the entire university) was just coming into being at my university in Australia the year I left for the UK. So I'm not sure how it worked out – and, no, it wasn't the reason I left the country! But I wonder if the model worked. It paired each faculty member with someone more junior and required meetings to plan future career directions and goals and follow-ups to see if the goals had been met. A report of the goals and progress was ultimately written up by the mentor in consultation with the mentee and forwarded to the dean. The most senior faculty were mentored by the dean. I also recall expressing some skepticism initially when we were told about the program because I wondered how the senior faculty had any idea how to mentor anyone, and I was told that everyone assigned a mentee was required to do mentoring training before taking on one or more mentees. Unfortunately, I have no idea how this worked out in practice subsequently, but I may do a little digging and make another post on the topic if I find out anything useful.

Are you sure the part about the most senior faculty being mentored by the dean wasn't just a ploy to get them to accept retirement packages out of sheer frustration?

Absolutely sure, James. Australia has (or at least at that time had) a mandatory retirement age for professors at 65 so deans didn't have to worry about unproductive senior faculty not doing the work they were supposed to do and just hanging around taking a salary. Additionally, deans had the power – and many of them exercised it – to require extra teaching from folks who weren't writing or at least putting in grant applications. It's a very different system because it's pretty much all civil service in university jobs with relatively low salaries and mandatory retirement.

Thanks, that makes sense. The "retirement" part of my post was more in jest; the part that expressed genuine bafflement was the part wondering why highly senior scholars would do anything but chafe at being "mentored" (and I use the scare quotes for comedic effect) by a dean. I guess it depends on the scholars, and the dean.

Also, deans in Australia have historically tended to be more "scholarly" than deans in the U.S. in the sense that until recently Australian law school deans weren't required to do a lot of fundraising because law school finances were all based on government funding/government grants. So deans spent more time doing teaching and scholarship themselves and were arguably in a better position than some U.S. law deans to do mentoring.