TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Thursday, August 17, 2017

A Law Professor Asks: Should I Retire?

Dan Subotnik (Touro), Considering Retirement:

At a talk I attended several years ago on such law school economic travails as declining enrollments, accreditation, new programs, and the bar exam, I asked whether senior faculty were a worrisome part of the problem, given the increasing age professorial retirement. The speaker hastened to assure the senior-heavy audience that no, older faculty served importantly as the institutional memory of the school.

Not wanting to embarrass a leader in legal education and a dean at a prestigious law school, I did not follow up my own question, though I knew that several months earlier he had proposed a generous retirement plan to his senior faculty. If these seniors were so valuable, I wondered, why the proffered buyouts at his and so many other schools? And why the refusal to candidly talk about senior faculty retirement?

New age academics may persuasively call for openly addressing the emotional dimensions of life in the law, but retirement may be just too close to home: in addition to helping maintain a standard of living, work gives meaning to life, provides discipline, and helps stave off senility. The heavy weight of retirement became clear to me at a recent conference on the economics of higher education generally. Lamenting steadily rising costs that have been passed on to students, the speakers refused to address the sharp increase in faculty salaries in recent years and, instead, inculpated universities for hiring administrators who in turn ignored new teaching technology and lavished funds on food service and Olympic swimming pools instead of on education. I spoke up about a plan I had proposed to end tenure at age 72, whereupon, like most employees, faculty would become employees at will--though with normal age discrimination protections. I asked the attendees, mostly in their 40s and 50s, whether they would do their part for higher education by endorsing such a plan. Not a single hand went up; unlike most Americans, faculty apparently deserve lifetime appointment.

In financial respects, the reluctance to abjure our professorial bounty is not hard to understand. We like our income; we have not fully recovered from a major recession; the economics, politics, and demographics of retirement are iffy; and not all faculty are paid as well as law teachers. Will Medicare be cut for those with resources? Will we be able to afford medical and nursing home care at well over $100,000 per year, especially given that breakthroughs in medicine are dramatically increasing life expectancies for those in the middle class? Should be we saving to pay for children and grandchildren who for one reason or another cannot march in sync with the new robot-based zeitgeist?

Also pushing against retirement is the nature of the job. For minimalists this means only six hours of class time a week for one course or two that faculty have probably taught many times over, and, additionally, perhaps six office hours. Many like myself, I should add, love their work.

But law schools have needs too. Seniors’ high salaries cannot readily be cut: age discrimination concerns fill the air. Furthermore, new ideas reflecting the ever-changing world we live in are in greater demand than ever. A regime that is stagnant will be one in which higher education will increasingly be provided by part-timers. This is not a world, surely, that most of us want to pass on to our successors.

Storytelling, as lawyers and literary scholars well know, is a powerful tool for analyzing hard issues, so let me personalize matters—and, hopefully, bring them to a head. I am 75 years old and have taught in law schools for 35 years. During almost all of this time, I have enjoyed excellent teaching evaluations by students and peers. As for writing, I have a book (NYU 2005) and a score of journal articles in a wide range of journals since then. I will not burden you with a CV. Suffice to say that while I am past my prime, I am above the average of academic producers on my faculty.

I could, thankfully, survive retirement financially. But complicating my decision to go there is that a few of my colleagues are older than I; a few are (much) better paid. I have nothing against them personally, mind you, but at the same time I feel no impulse to “subsidize” them. (I do wonder whether it is childish to allow their retirement decisions to have any bearing on mine.) I have tried to work these issues out communally, but all my efforts at selling a Good Practices policy for retirement or half-time work program have failed.

Last, no one gives me the fish-eye, much less asks explicitly when I am going to retire. Even the dean. And yet I am not at all certain that if I did offer to hang it up, partially or fully, the dean would ask me to reconsider, as he has sometimes asked others. My reluctance to ask the dean directly should be understandable. I don’t want to risk giving him the power to make my decision: if he responds that I am not pulling my weight, but I am not persuaded of his rationale or bona fides, how could I continue to work?

For now, I am left with asking a young and good friend to let me know when my time is up. I can live with a thumbs down from her. But she is such a good friend that I fear that she will not be honest with me.

All of which leads to my question here: Should I retire?

Legal Education | Permalink


I vote no. Touro Law is a great candidate to be one of the law schools to close in the next 5 years. Enrollment is way down, first time bar passage rate hovering around 55%, not a ton of parental university resources to draw from, etc. By hanging around, you can do your part to ensure this happens, and take a piece for yourself. Win win.

Posted by: JM | Aug 17, 2017 6:47:41 AM

There is a middle ground. With the help of the then Dean and University counsel, I designed a program of staged retirement, which reduced teaching load and salary (but not benefits), made administrative tasks optional, and included a commitment to retire in three years. For a long time, the school has retained retired faculty to teach one or two courses; another retired faculty member has stayed to continue several writing projects. Retirement need not be an "all or nothing" proposition.

Posted by: James Edward Maule | Aug 17, 2017 8:12:08 AM

If you don't have something else to do with your time that you love more than your work, you shouldn't retire. Sometimes it's not about money.

Posted by: AMTbuff | Aug 17, 2017 8:29:49 AM

Conquest's First Law.

Posted by: JorgXMcKie | Aug 17, 2017 1:42:06 PM

Yes, you should. At 75, this should not be a hard decision.

It's not fair to your students, or your organization, to stay. While there may be the extraordinary case of a 75 year old still working at 100%, realistically most have been coasting (at best) for many years. Your book was 12 years ago. The fact that you are asking the question suggests you really already know the answer.

Ideally, your organization would have well thought out policy to facilitate this transition. Mandatory retirement at 65 or 66, perhaps with a couple of years of emeritus status (at much reduced pay). Sounds like they don't.

I took early retirement at 50, mostly because the work had become uninteresting, and the management environment unpleasant. I ran the numbers, and it looked feasible. My attempts to arrange half-time work were not successful either. Looking back, no regrets. I'm 64 now.

In doing the decision analysis, "making a space" was one of the factors I considered. It was pretty far down the list, and not decisive, but I was aware of it.

I was advised by a financial planner acquaintance to retire on the job - just do the minimum to get by. I decided I couldn't do that.

Posted by: Engineer | Aug 17, 2017 2:23:21 PM

I don't see any need for this guy to "take one for the team". The system he's operating in is one in which we can work, pulling a full salary, until we die at our desks (very unlike law-firm partnerships, which I believe are still allowed to have mandatory retirement schemes). That may be a sub-optimal system, but him retiring neither changes the system or even guarantees that his law school will use the "savings" from his departure in a way that he would view as desirable. They may even just use the savings to pay his over-paid colleagues even more! So - my advice - retire if you want to retire. If your dean wants you to retire, he or she has some (limited) tools to put a thumb on the decisional scale ("we really need you to teach trusts and estates, and bankruptcy, this fall"). But until the dean makes his professional life too burdensome, the decision is entirely his.

Posted by: Jason Yackee | Aug 17, 2017 3:55:20 PM

I think it's reasonable to ask people to retire if the law school has limited funds and needs to put them to other uses. If it is simply to hire younger or more politically fashionable people, I'm less sure. Age and wisdom don't always go together, but they're not mutually exclusive, either. I learned more in law school from old geezers than from many of the younger faculty.

Posted by: mike livingston | Aug 18, 2017 4:10:44 AM

Teaching 6 hours per week? You've been retired for years. What a scam.

Posted by: Actual Lawyer | Aug 18, 2017 6:37:48 AM