Tenured Faculty: A Disappearing Breed?

When CUNY Graduate College Professor Stanley Aronowitz published The Last Good Job in America: Work and Education in the New Global Technoculture in 2001, reviewer John Marsh observed that the radical-left author was referring “to Stanley Aronowitz, tenured sociology professor.  His is a job that pays relatively well, not only affords but rewards time off for reflection, ensures job security, guarantees intellectual and political independence, and, while by no means uncluttered, nevertheless remains largely self-directed.”
By contrast, continues Marsh, paraphrasing Aronowitz, “For… most workers, the weekend is more endangered than some California condors.  We check our email six times a day.  We own enormous homes that need to be repaired and remodeled. We commute hours to work and hours back home….  We live in an age… that has subsumed the human spirit — and all its social spaces and work and leisure time — to the imperatives of alienated work without end.”
Aronowitz/Marsh seem to be describing millennial American lawyers.  When, as a young attorney, I joined the Philadelphia mega-firm Saul Ewing in 1983, the managing partner boasted at a new-associate orientation that hourly billing was “the best thing that ever happened in our profession.”  In one respect, he was absolutely right.  Hourly rates have soared, surpassing inflation by a country lawyer’s mile.  According to the August 22nd Wall Street Journal, “The hourly rates of the country’s top lawyers are increasingly coming with something new — a comma.  A few attorneys crossed into $1,000-per-hour billing before this year, but recent moves to the four-figure mark in New York, which sets trends for legal markets around the country, are seen as a significant turning point.  On Sept. 1, New York’s Simpson Thacher & Bartlett LLP will raise its top rate to more than $1,000 from $950. Firm partner Barry Ostrager, a litigator, says he will be one of the firm’s thousand-dollar billers, along with private-equity specialist Richard Beattie and antitrust lawyer Kevin Arquit. The top biller at New York’s Cadwalader, Wickersham & Taft LLP hit $1,000 per hour earlier this year. At Fried, Frank, Harris, Shriver & Jacobson LLP, also of New York, bankruptcy attorney Brad Scheler, now at $995 per hour, will likely soon charge $1,000.”
What has hourly billing meant to lawyer’s clients?  In the words of one maverick law firm, Traverse Legal, PLC, “Lawyers who bill by the hour typically spend their time thinking about hours rather than results. Few hourly billing attorneys tell their client what they will be delivering and the costs upfront.  Once deliverables are defined, a value billing attorney simply asks himself/herself the same question each moment of each day: ‘How do I deliver the deliverables I have promised the client?’  Instead of cases just meandering forward, each day the lawyer’s required to think strategically….  The lawyer has tremendous incentive to achieve that result sooner, rather than later. This is because hours of time now count against him/her in contrast to the hourly billing approach where hours count against the client.”
An analogy might be drawn to the classroom, where one might argue the tenured professor worries about delivering the best possible educational product, while the contingent faculty member focuses on getting in, getting out, and getting on to the next gig.
What has hourly billing meant for law firm partners and associate attorneys?  Indiana-Bloomfield law professor Bill Henderson reported last May that “many firms are actively thinning the ranks of equity partners.”  This perception was confirmed for me by Eric Gouvin, associate dean for academic affairs and a full professor of law at Western New England College’s law school.
“Sometimes it’s pretty unceremonious,” he says.  In many firms “partners have given away almost all their rights.  Running the firm is delegated to a committee, which runs the firm like a business.  Underperforming partners are given a warning and then shown the door.”  He adds that “the EEOC has been watching this.  The agency’s position often is that so-called partners have ceded so many rights that they are really employees.  They are no longer partners, the way they actually work on the ground.”
If many law firm partners are in this difficulty, what of the associate attorneys?  University Professor David Luban of Georgetown recently drew an analogy between big-firm associates and classic “exploited workers,” as Karl Marx might have called them.  “With overhead, an associate costs a law firm double her salary….  Thus an associate must bill 1,500 hours simply to pay for herself.  Because not every hour can be billed, that is about 1,800 hours of work… six hours a day, six days a week….   The rest of the day is the ‘unpaid labor’ generating the surplus value — value that the partners appropriate.”
Lest this sounds too onerous, let us remind ourselves that we are talking about 26-year-olds earning upwards of $150,000 per year and billed out at $200 or more per hour.  Little wonder that big firms have no trouble recruiting top law school graduates.
Perhaps the same may be said of higher education.  The American Association of University Professors bemoans the decline of tenured and tenure track faculty as a percentage of the total professorate.  In December 2006 the AAUP reported that since the seventies the representation of tenured and tenure track teachers at some 2600 institutions tracked had declined from 57 percent to 35 percent, while the comparable figures for full- and part-time contract faculty reflected an increase from 43 percent to 65 percent during the same period.
However, caution knowledgeable observers, it would be a mistake to assume that these contingent faculty are all “exploited workers.”  To the contrary, comments Eric Gouvin, “I’ve been at my law school for 16 years.  For faculty of my generation, this is unusual.  There has been a generational shift about how much loyalty is owed to a place.  Many young faculty feel, ‘I’ll do what I contract to do, but don’t expect a long-term commitment.’  Some also feel, ‘I’d rather get paid at market value, then get tenure.  I’ll trade some security for salary.’”  Others, he adds, may stick around until they attain tenure, then transport that job security to a better-paying or more prestigious venue.
Dr. Anthony Liuzzo, a JD/PhD who runs the MBA program at Pennsylvania’s Wilkes University and who at 60 is a generation ahead of Gouvin, agrees.  “In some ways this is reflective of the larger economy,” he contends.  “I’m not even sure junior faculty want tenure.”
He continues, “Older faculty appreciate loyalty and longevity.  Our parents worked for the same companies all their lives.  I ask my MBA students would they be interested in working for  a company for 30 years and they laugh at me.  This may be true of newly minted Ph.D.s as well.”
Furthermore, the professorate has its counterparts to law’s $1,000/hour mega-partners.  Some law professors at top schools now earn upwards of a quarter-million dollars per academic year, while top medical professors, such as at NYU, have long been earning in excess of a million dollars annually.
Predicting that the tenure system “will be dented on a number of fronts” in the coming decades, he demurs that “exploited is an over-statement” when it comes to considering the roles of contingent faculty.  Describing himself as a “free-marketer,” he speculates, “The decline of tenured faculty and the tenure system may not be such a bad thing.  There will be more mobility.  If tenure somehow went away, there’d be a lot of openings… 20-25 percent might be forced out.  This would drive up wages.  It might be good for both individual institutions and for (competent) faculty.”
On the other hand, he wonders if it might be “bad for the industry.  The benefits of tenure include shared governance.  Without tenure, all power would be transferred to the administration, which is primarily interested in the short term, while the tenured faculty tend to take the long view.  Higher education would wind up with the same problems that plague corporations which quest only for short-term profits.”  His comments echo the concerns expressed by Traverse Legal about hourly billing.
Western New England’s Gouvin takes a different tack on these points:  “The broadest trend I see is how philanthropy is administered.  It’s all about accountability.  Administrators turn to the for-profit playbook.  An institution’s biggest cost is people.  Lots of institutions are aggressively paring down their people costs by cutting tenured faculty to the bare minimum.  The problem for administrators is that there’s no comparable private-sector playbook for managing tenured faculty.  Tenure protects dead wood.  That’s the terrible side of it.  Administrators have to turn to the ‘soft side’ in order to try to make these folks more productive.”  Thus, he says, the trend toward trimming down the tenured ranks.
In the last analysis, it seems that while both life-time law partners and tenured faculty are declining as percentages of their respective professions, neither category is likely to vanish in any reader’s lifetime.  And while both associate attorneys and contingent faculty are working harder than ever, the monetary rewards are often commensurate with the demands and the insecurity… at least so far.
However, if the parallel paths being pursued by these two professions are destined to converge a bit farther down the 21st century road, the point of convergence might not bode well for either contract faculty — or even tenured professors below the level of the well-endowed mega profs — or for the lower ranks of law partners and associate attorneys.  Outsourced legal work, primarily to Indian lawyers and paralegals, has been estimated at $163 billion — yes, that’s billion — for calendar 2006.  The higher education analogy would seem to be distance learning, which some disgruntled faculty have labeled “prof in a box.”  In other words, the majority of practitioners in both professions may be destined to endure the hard side of globalization, and as a result of much the same technological advances.
But that’s for tomorrow.  What of “the last good job in America” today?  Here Eric Gouvin probably should get the last word.  “I certainly think I do have the best job in the legal world.  Every day I wake up and thank God.”

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