Open season

Part 2 of the series, On the Money

Part 1 of this series, On the Money, outlined political scientist Daniel Drezner's two-pronged objection to "academic Moneyball." The first of Drezner's objections is "poaching," the concern that an academic department built on Moneyball/MoneyLaw principles will be raided. His second objection is "overspecialization." Over time, Drezner fears, a department built on this basis will be dominated by members of a single school of thought. In this post, I address Drezner's concern over "poaching."

Drezner's concern about "poaching" is illusory. If anything, the extent to which one faculty's the best-performing members attract the attention of other faculties is a measure of the poached faculty's overall quality. My former dean, Alex M. Johnson, Jr., said it best: The goal in faculty recruiting is to have "a faculty that everyone wants." 36 U. Tol. L. Rev. 95 (2004). Alex should know; he presided over one of the most aggressive programs of faculty-building in Minnesota's history, one that will in retrospect be judged as one of most enduring legacies of his administration.

The strength of the reputational signal sent by lateral moves send explains, at least in part, why Brian Leiter's Law School Reports, perhaps the most vigilant and status-conscious weblog in legal academia, devotes such extraordinary efforts to tracking comings and goings in the business. A MoneyLaw purist puts no weight on this factor, since real people with real lives and real families make decisions of this magnitude for complex reasons, most of which outweigh marginal differences in reputation. (As well they should -- show me someone who uproots spouse and children strictly on reputational grounds, and I will show you an Arschloch.)

However illusory or illegitimate it may be, academic reputation does remain a real part of our profession. Over time, the ebb and flow of personnel between law school faculties may suggest something about the reputation of individual law schools, the managerial vision of individual deans, or both. Schools that have high "throughput" -- that is, high rates of new acquisitions and high rates at which their faculty members are poached -- are probably more vibrant than their relatively stagnant counterparts. If departures outstrip arrivals, though, and faculty members appear to be leaving for reasons unexplained by the usual professional and personal factors, that may be a sign of justifiable discontent with management, overall institutional culture, or both. Poaching as such isn't the problem; the key lies in the motivations underlying each lateral move. Finally, we should take care to remember the factor that matters most, even if it eludes easy measurement or articulation: each faculty member who does move changes two schools by virtue of her or his decision.

This much seems clear (and would probably be supported by the numbers if anyone cares to compile them): lateral moves in legal academia are more frequent today than they have been historically. By and large, greater movement of labor bodes well for academia. It enables individual faculty members to find a better match for their talents and aspirations. The threat of departures, whether merely anticipated or actually realized, heightens the premium on sound, engaged law school management. Exit, Voice, Loyalty: open labor markets discipline managers in the for-profit world, and it's a good thing too. From time to time -- no, make that every day -- we law school professors and administrators could use a comparable dose of do-or-die motivation.

Those who know baseball history know how Curt Flood spurred the rise of free agency. (Legal professionals who don't care about baseball should still read Flood v. Kuhn, 407 U.S. 258 (1972), one of the strangest applications of stare decisis by the Supreme Court.) Baseball has never been the same since Flood's legal struggles forced the eventual evisceration of the reserve clause. Baseball is an unfair game, to be sure, tilted in favor of big markets and deep-pocketed owners. But clever general managers can exploit inefficiencies in their better-heeled counterparts' evaluation of talent. Would that academia, a game whose unfairness rivals or exceeds that of America's pastime, permitted even a fraction of the labor mobility that has transformed baseball and every other field of productive enterprise for the better.

The closer academia comes to baseball after Flood, the more it will enable superstars to shine. Perhaps just as important, law school management and the guardians of reputational rigidity will exert less control. Looking down from his field of dreams, Curt Flood would be proud.