Brian Leiter has been making intemperate attacks on critics of tenure lately. His immediate target is Mark Taylor, whose proposals to abolish tenure won him a lot of academic ire. Brian and I both dislike the style and substance of Taylor's type of philosophical work, so I attribute some of Brian's sharpness of tone to the admitted egregiousness of his target's prose. But Brian's arguments for tenure do not, I think, stand much scrutiny.
The core of Brian's argument is that tenure protects professors' right to say or write controversial things. But I do not see why professorial freedom of expression could not be adequately safeguarded by a much narrower rule barring dismissal for viewpoint-related reasons. This sort of First Amendment-style protection would safeguard professors' rights to make controversial statements without providing gratuitous insulation for professors who are simply lazy, incompetent, or corrupt. Why not require the sacked prof to set forth a prima facie case that their dismissal was the result of something controversial that they said or wrote? This burden could be light: The plaintiff might simply proffer something -- anything -- written or said within a year or so of dismissal that could remotely be regarded as controversial. The employer would then bear the burden of showing that the dismissal was unrelated to the proffered writing or utterance. Think of such a burden-shifting framework as roughly analogous to the Griggs disparate-impact test. The benefit of such a rule is that it not only makes dismissal of incompetent, lazy, or corrupt professors easier but also gives all profs more of an incentive to write controversial stuff, if only to have a prima facie case when the pink slip shows up in the mailbox.
But what if tenure serves some other purpose? Specifically, at least in the professional schools, tenure might be viewed as a form of compensation. Lawyers at elite law firms make a lot more money (often by an order of magnitude) than law professors. Unlike the way it supposedly used to be, when partnership purportedly equaled life tenure (I'm not sure that was ever true, but let's assume it arguendo), partners today face very serious risks of having their draw cut or even being fired if they fail to satisfy their partners' expectations regarding billing and client development. Those of us with real lifetime tenure thus face much less risk of losing our job and much less volatility risk with respect to our annual income. Lower risk = lower return.
In other words, by reducing my risk exposure by granting me life tenure, the law school saves money. Granted, it also probably attracts lawyers who are more risk averse than those who remain in practice, but that's true of any compensatory scheme in which one trades off security for cash. So maybe it's a feature rather than a bug.
Indeed it seems to me that tenure is closely analogous to the stock option packages received by executives in a corporation, or to the shares of a general partnership held by the partners. Tenure is effectively a way to give a profitable ownership share of a non-profit organization.
If universities were actually for-profit corporations, then they could compensate their employees with grants of shares or stock options. Like tenure, grants of stock options would (a) not be an immediate cash expense for the corporation; (b) have a true cost which was hard to measure; (c) be thought to encourage employee loyalty and align the employee's interest with the corporation's interest, although as we know, neither tenure nor stock options function perfectly in this regard.
However since universities are non-profit organizations, they are stuck with tenure as an ownership-stake-like form of compensation. Giving out shares of trusteeship of the university would be problematic, since the shares could not be sold and members of a non-profit corporation cannot financially benefit from their membership.
