Yesterday I noted that a bunch of law schools are pursuing aggressive buyout plans in regard to their senior faculty, that in some cases contemplate attempting to get half or more of the senior faculty to resign their positions, either immediately or over the next few years.
In comments, Warren Terra asks:
As I understand it, on paper these tenured professors have a guaranteed income of one year’s salary every year until they hit the mandatory retirement age – and they’ll give that up for two years’ income, possibly disbursed to them only over several years? How is that a good deal for them, unless they think they need to get out before their employer goes bust or does worse to them? And even then, why would they accept a plan for payment over several years? If you’re taking the money and running because you think the money won’t be there in the future, why agree to wait for the money?
Mandatory retirement ages are now largely illegal in the US (as a formal matter, of course: age discrimination against older at will employees is as a practical matter extremely difficult to combat), and have been explicitly illegal in regard to tenured faculty for the past 20 years. This presents some serious potential problems for the structure of higher education in general in this country; as is so often the case, law schools are merely the canary in this particular coal mine.
A few years ago Columbia professor Mark Taylor framed these problems sharply:
The growing tendency to defer retirement leads to both financial and intellectual difficulties. In almost all cases, the more senior the person, the higher the salary. This creates pressure on budgets that are already stretched to the limit. In some cases, the salary of one tenured professor could fund two non-tenured positions. There are intellectual problems, too. To be candid, on campuses, the best work of people in their late 60s and 70s is behind them. Though there are exceptions, many aging faculty members either rewrite previous books or produce nothing at all, and in the classroom they all too often recycle notes they have used for many years.
Mandatory retirement would open up opportunities for younger people, who today spend as long as 10-12 years pursuing careers from which they are often blocked by senior faculty members who refuse to retire. This situation is not only tragic for many of our best and brightest young researchers and scholars but is also disastrous for the future of higher education.
Of course as Taylor notes, there are always individual exceptions to the rule: in the legal academy, it’s often noted that Arthur Corbin did much of his most influential work on contract law in his 70s and 80s (he was the primary author of the second Restatement of Contracts until failing eyesight led him to surrender this project at age 90). What’s less noted is that Corbin formally resigned from the Yale faculty at 68, and did this work while technically “retired.”
In any case, the problems created by combining a legal regime in which people can only be fired for cause — a privilege that almost no one in the US other than tenured faculty and the increasingly small percentage of workers who enjoy either civil service or union protection has — with the legal elimination of mandatory retirement ages, are considerable.
These problems are particularly acute in the legal academy, because of high salaries, low teaching loads, and a somewhat farcical publication system, in which publication in any of hundreds of student-edited non-peer reviewed legal journals counts as academic publication.
So Warren’s question is a very good one: Why would anybody who is getting paid $250,000 or more (a common compensation package for the most senior faculty at many even non-elite schools) to teach three classes per year, while perhaps cranking out a “law review article” now and then, forgo this exceedingly pleasant arrangement unless he — and of course for demographic reasons it is at this point still usually a he — thought the whole business was about to go bust?
After all, professional-class people usually retire because their jobs are burdensome: they would like to have time for the kinds of things that are difficult to pursue if one has to show up for work for nine hours a day 50 weeks every year, and/or they dislike their work for various reasons (needless to say people doing hard physical labor have far more compelling reasons to want to retire, but that’s a separate subject altogether).
But legal academics do not, to put it mildly, have burdensome jobs: they are required to show up at the office for just seven months out of the year, and 90% or more of the time they spend working — assuming they are working what could realistically be characterized as a full time job, which is the 500-pound can opener in this little conversation — can be spent on doing whatever work they actually want to do.
As one very professionally active professor in his late 60s put it to me recently, “I get paid to do exactly what I would be doing for free.” In his case he gets paid $350K per year, so while I don’t at all doubt that he would, like Prof. Corbin, literally write the same terrific books he writes now — and they are excellent — if he were working for free, on the whole he would understandably prefer to keep getting a $30,000 per month pay check. And who can blame him?
So why do people take buyouts? Obviously I’m speculating, but it’s speculation informed by anecdotal observation for what that’s worth:
(1) A sense of social responsibility and basic fairness. Law professors hired 40 years ago have piled up millions in their TIAA-CREF accounts, they bought houses for nothing, they got to go to both undergrad and law school for basically free in the 1960s/70s etc. (Harvard Law School tuition was $8000 per year in 2013 dollars in 1965, and public school tuition was nominal). And it apparently does occur to some people that if they would do this job for free, maybe they really should do it for free at some point. After all one of the many great things about being an academic is that you can often continue doing all the parts of the job any sane person would actually enjoy even after you formally retire. Those who still have a scholarly vocation can now spend literally all their work time on research and writing, while those who enjoy teaching will usually be accommodated by administrators who are more than happy to pay former full time faculty adjunct wages. Basically you can do much the same job you had before, minus committee work and faculty meetings (and, of course, the salary).
(2) A sense of shame. As Taylor points out, lots of academics are more or less burnt out after 30 or 40 years on the job. Unlike baseball players law professors don’t have batting averages, but people keep score anyway, both for themselves and others. John Updike on Ted Williams’ last at-bat:
One of the scholasticists behind me said, “Let’s go. We’ve seen everything. I don’t want to spoil it.” This seemed a sound aesthetic decision. Williams’ last word had been so exquisitely chosen, such a perfect fusion of expectation, intention, and execution, that already it felt a little unreal in my head, and I wanted to get out before the castle collapsed. But the game, though played by clumsy midgets under the feeble glow of the arc lights, began to tug at my attention, and I loitered in the runway until it was over. . . On the car radio as I drove home I heard that Williams had decided not to accompany the team to New York. So he knew how to do even that, the hardest thing. Quit.