I agree with Jim Chen’s analysis of the dangers of poaching. I praise poachers, poachees and look carefully for the poachable. I also agree with him that the evolution of a faculty to "mediocre department[s] stuffed with tenured academics who can't get a job anywhere else and don't know how to identify the up-and-comers in a discipline" is unlikely to be the result of a commitment to Moneylaw or ball. On the other hand, since a great many/most law faculties outside the top 25 or so fit the description, what is the explanation? Why is Moneylaw not the standard?
The answer, I believe and have written about elsewhere, is nothing short of plain old capture by faculties who then run law schools to suit their largely personal interests. The setting is perfect. There are no objective measures of productivity. Whatever hope there was has now been extinguished by the form over substance mentality promoted by rankings. In addition, weak administrators simply do what they are told by the faculty, even a mediocre faculty. In fact, as it turns out, the form over substance ranking systems are a windfall for administrators because they offer a way for deans to increase the rank of the school without actually asking faculty to do anything. (The weakness of these administrators can be traced to their low opportunity costs.) Finally, law professors are trained advocates.
Here are some indicia of capture:
1. Rarely is anyone denied tenure. Why does this matter? Think about it. The facts are that very few people move up and very few are denied tenure. There are two possible explanations. The first is that nearly every hiring committee is so good that the only people hired are good enough for their law school and not good enough for law schools higher up in the pecking order. The second possibility is illustrated by a friend’s comment to me recently. While she was unimpressed with a candidate’s tenure file, voting no would mean “offending mutual friends.”
2. The proliferation of centers, institutes, certificate programs, and foreign programs. My sense is that law school quality varies inversely with the number of these. Examine your own school’s version of these. Can you identify one or two people who are the “but for” causes of these programs? Was there a demand for that program before it came into existence? Probably not, but in the log-rolling tradition of a faculty were few or none are going anywhere else, all but the most outlandish are approved.
3. Plain old empirical evidence on faculty ethics. A relatively recently study by Jonathan Knight and Carol Auster (Faculty Conduct: An Empirical Study of Ethical Activism, 70 J. Higher Ed. 188 (1999)) found than only about half of faculty who were informed about the unethical conduct of a colleague approached the colleague or anyone else about the issue. In fact, their numbers probably grossly overstate what they call “ethical activism” since the faculty member examined knew that at least one other party would know if they took no action. Are the numbers higher or lower for law professors? My money is on lower.
4. Tenure and promotion processes. On at least two occasions when I was asked to review the work of a candidate from another school, I was told that the job of the committee was “to get the candidates through.” At my School and many others, the candidates have a major role in selecting reviewers. This does not sound like Moneylaw to me. Claims that the tenure review process is like peer review in other disciplines is . . . , well, bunk. (You can say bunk on a blog, can’t you?) And, while I am at it, when is the last time your committee mailed an article about a political issue – race, environmental law, gender, sexual preference – to anyone who could not be viewed as a political ally of the candidate?
5. Does your school avoid candidates who do not share their views of what is right and wrong with the world? For example, would they reject a bright, promising minority candidate who did not toe the line politically? At the captured schools politics trump intellect and the discussions are boring as a result.
So we have the Yankees (Texas, I suppose), The A’s (Minnesota) and the Devil Rays. Only in law teaching it is worse than that. The Devil Ray players actually own the team. Since there is no won/loss record they go on saying – with forests worth of self-promotion -- and, perhaps even believing, they are competitive with the Yankees. Moneyball, the approach that would make the team better, scares the hell out of the players.
How else can one explain the absence of Moneyball stategies?