Tenure in law schools...
is a blogopheric topic du jour. See, e.g., Brian Tamanaha-- who, by the way, has become a very fine model of scholar-blogging as far as I'm concerned, not least because he's worked out ways to blog about his current areas of research in ways that make me want to read the research. Self-promotion can be a fine thing... which is related to the point I want to make.
1) We must have academic freedom at universities.
2) Academic freedom can only be adequately protected by tenure.
3) Therefore, we must have tenure. QED.
"We must have tenure" then gets entered in as the major premise of lots of other institutional questions. I understand the worries about tenure and the tenure system (boy howdy!) but incline very strongly toward keeping it more or less intact; I'm basically signed up for syllogism 1.
1) We must have tenure.
2) People who can't be fired, can't be motivated to perform their jobs by the threat of firing.
[skipping a few obvious steps:]
3) If tenured academics are to be motivated to do their jobs, it must be by means of future reward, not performance-based punishment.
The standard thing to think at this stage is: money. With suitably large and performance-based raises, most people could be motivated not to shirk, even if they couldn't be fired.
Now we have to segment the pool.
Law professors, business professors, many economists, some number of medical faculty, and various others have earning possibilities as part-time consultants or practitioners that dwarf those annual raises. So it will be tough to motivate them to do research or teaching with money; they have better monetary options to be had by shirking their university work and taking on additional side work.
Most other memebers of a university faculty are more-than-usually difficult to motivate financially... by force of selection. Someone who gave up 5-10 years of prime earning time in order to stay in school for the chance to later take a job that pays less than the job he or she might have gotten years before is someone who doesn't respond "how high?" when a dollar bill says "jump." For a smart kid coming out of a good undergraduate institution, going on to graduate school and then a professorial job in the liberal arts just can't have as high an expected financial value as other things the kid could do. That gap becomes more and more visible throughout grad school, as the kid's old college friends start buying houses for their families while he or she is splitting a student apartment with two roommates. On top of that, the friends have long hours and stressful jobs but don't seem to be getting their souls crushed like so many dissertation-writers do. Those who stick with the process all that time are very stubborn, and very resistant to financial and material rewards. (Comparatively speaking-- resistant, not immune.)
So, one way or the other, paychecks aren't likely to be very effective tools for eliciting desired behavior from professors. They'll do something-- but they won't do very much.
The answer is: amour propre. Pride. Ego. Or, to dress it up, the desire to have intellectual accomplishments and make academic contributions. Since universities want active researchers, not just competent teachers, the immediate rewards of student interaction won't be enough; universities need to tenure faculty who get gratification from successful research and publication itself.
In order to balance out the impossibility of firing and the partial uselessness of money, it seems to me that universities with tenure have to select for employees who are unusually suffused with amour propre-- people who will be highly motivated to be promoted from associate to full professor, who will be highly motivated by the possibility of a named chair, who want prizes and awards and to be though of as making or transforming fields of inquiry and the recognition and acclaim of their peers. (Law schools, as far as I can tell, have reduced the number of standard professorial ranks from three to two; people are promoted to full when they receive tenure. A step in the wrong direction, on this model.) We don't think of ourselves as acting for these reasons, of course. But the rules and structures are, I think, tacitly based on that model of our behavior.
Questions left to the reader:
1) Tenure procedures are, in part, designed to weed out those whose productivity is temporary and opportunistic, those who will be promoted to tenure and then coast and shirk for the rest of their lives. That means that they should be, in part, designed to select for amour propre, not just for observed productivity. How can one differentiate between the two on the basis of observed behavior in the first seven years?
2) What are the predicted social-psychological consequences of designing an unusually rigorous sorting mechanism for selecting among very smart people on the basis of their pridefulness; then locking those who pass the process into a metaphorical room together for 40 years? Given that esteem is to a substantial extent zero-sum; that those who seek it rarely think that they have as much as they are due; and that there's a limited amount of it to go around in one's external discipline; what happens when those people turn their status-seeking inward, toward the university or the department? Do the predictions you derived seem to successfully describe the observed group dynamics?
I'm being playful here, not bitter-- I am, after all, a fully signed-up participant in this process, and recognize myself in the model. But we often tell the amour propre story as if it successfully solves the tenure-and-incentives problem without creating any new ones. "The kind of person who takes pride in intellectual accomplishments isn't going to cease to do so." True enough, and that really is why we see so little shirking.
But solving the shirking problem doesn't solve all problems. The solution requires both selecting for that pride at tenure time, and then living with the consequences of small groups of exceptionally prideful people being locked into lifelong status competitions (and being expected to engage in acts of collegial self-governance all the while.) We end up nuts enough to generate a whole genre of literature devoted to the idiosynacrasies of too many large egos in small rooms-- and even a funny subgenre about the murders that result. Our well-documented group psychopathologies are closely related to the characteristics that are needed for our tenure model of employment to be justifiable...