the future of the law schools (2010 version)

Any time there is an economic crisis, you can be sure there will be a series of new efforts to reform the law schools. Some of them, like efforts to control tuition, involve the faculty in job placement, and orient the law schools toward skills training may actually be good ideas. Others, like the endless attempts to define one's self as an "elite" law school (and thereby exempt from the advice one offers to others) smack of rank opportunism. Consistent with human nature, most suggestions tend to be pretty much the same thing that the suggester would have said had there been no economic crisis, at all.

One of the less constructive suggestions is to eliminate or phase out tenure: something that is happening in stages, anyway, but that some (usually administrators) would like to hurry along. The tenure issue is typically argued in terms of free speech, which I think is its weakest defense. As any tenured professor knows, a school can make you pretty miserable if you express outlandish views, even with tenured status: and most people who open their mouths after getting tenure will probably have done so before it, anyway.

The bigger issue is one of time frames. I got tenure writing about statutory interpretation in the tax field, but eventually realized that most of what I had to say had been said before, and better, by others. So I expanded my interests, to cover international tax and (eventually) nontax comparative law: an effort in which I have invested many years but the payoff on which, when and if I ever succeed, is likely to be much higher than had I continued churning out more or less the same stuff I was doing before. I might have done this even if there were no tenure, but I would have been much less likely to try.

Aha, you say, that's the point: professors should strive to be productive and not waste years pursuing new areas that may or may not be fruitful. My counter is that it is precisely by taking risks that academics make new discoveries. Books and articles that incrementally advance preexisting ideas are, in the long run, more or less useless. By freeing proven scholars to take a longer time frame, the tenure system provides at least some chance to reverse the inevitable tendency toward repetition and mediocrity, and produce something of lasting value.

There is a particular irony in the pressure coming from administrators and other "moneyball" advocates to cut back on tenure. American business got in trouble precisely because of its short time-frame, which distinguishedit even from capitalism in other countries (Europe, Asia, etc.) Now the business types are trying to extend the very "grab what you can, eat what you kill" philosophy that nearly ruined the economy to the one area that they haven't reached yet. Somebody once said that "politics ain't beanbag." Academics isn't baseball either, and it would do us well to remember it.