The Privileged Need Tenure to Speak? Geez! Do I Hear Whining?



Oh my goodness. According to one report law professors are worried about the demise of tenure because of the impact it will have on their academic freedom. Now let's put this in perspective. We are not talking about someone in a factory who wants to support forming a union. No, we are talking about privileged people with professional degrees. Frankly, I am not too keen on people who claim to have important things to say but can only say them if they are sheltered from the consequences. Plus, I am not sure I can think of many instances in which a law professor has actually uttered something controversial much less had his or her job threatened because of it. The fact is almost no one is listening and even fewer care. Many law professors have a powerful need to seem unconventional. In many cases this is to make up for a life of exactly the opposite. Claiming to need tenure in order to be controversial is part of this illusion.

The entire matter, though, still seems overblown and a wee bit hypocritical. First, tenure is in a sense under inclusive. It only protects incumbents. Those incumbents are often the first to vote against a faculty candidate with a different point of view and to vote for those with whom they are politically comfortable.  Law teaching is, thus,  a world of academic freedom for the elites who then deny it to others.  Indeed the term  "academic freedom" would be more transparent if it were routinely followed by "for me and for you if you agree with me." I have witnessed this on several occasions at my law school.   Perhaps it is not the same elsewhere but I doubt it. 

Second,  for every person (if there are any) who says something truly important only because of tenure, my hunch is that we could also identify hundreds for whom tenure became shelter for less productivity post tenure and who have nothing at all to say that will annoy anyone ever. (A reference to the wonderful line in "Lucky Jim:" "it's not worth writing if it does not annoy someone.")  I am just not sure it is worth it especially in a discipline that ultimately owes its existence to the goal of protecting the status quo. 

One of the wackiest defenses of tenure I have heard is that it must be working to protect the expressions of law professors because we rarely  hear of an instance in which law professors come under scrutiny. Aside from the fact that very few care what they say, the logic of this is like "we know the moon is protecting us from comets because so few have crashed to earth."

Having said all that I strong support tenure but not for the hollow academic freedom rationale. A world without tenure would mean self promotion would run wild. The battle to add meaningless lines to resumes would escalate and law professors would write even more unread articles. We  are in the midst of that now and it would only get worse.