an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Legal academia in the early twentieth century was much like legal academia today in a surprising respect, noted by Harvard Law Professor Thomas Reed Powell: "The law schools get teachers by...robbing each other's hen-roosts." He continued:
Once upon a time I heard of a school that did not pilfer from its neighbors not because it was too good to steal, but because it was too good to covet its neighbor's goods. This goodness was too good to maintain itself, and covetousness is now ubiquitous. The peripatetic pedagogue is considerably more common among juristic persons than among the lesser breeds without the law. Some have made what might be called a Cook's tour of the law schools. Robbing each other's hen-roosts is facilitated by the graduation in the salary scale from school to school and by these annual opportunities for getting acquainted. We can know a man by his larynx without waiting for the fruits from his fingers. Whatever the reason, most of our law schools now feed frequently on each other.
Such cannibalism is not of great importance to legal education as a whole. If it really worked out so that the choice viands were concentrated in a few larders, it would be a distinct detriment to legal education as a whole. No such menace appears to me imminent, notwithstanding what some take to be assumptions to the contrary. I hear of not a few larcenies that have inspired in the thieves a desire to make specific restitution. I hear of frequent attempted larcenies that have been frustrated notwithstanding the allurement of higher salaries. This competition of school with school may be bad for university budgets, but this has its brighter side....
On the whole it seems to me a good thing for legal education that teachers are not tethered too tightly....The school that loses a man it longs to keep is apt to take steps to make its post more attractive to others. Our law schools have grown in merit as their sister schools have grown in merit. The secure and satisfied school is in danger of stagnation.
Powell had intimate knowledge about the subject, as he had recently moved to Harvard from Columbia. [this was an Address, "The Recruiting of Law Teachers," delivered at the 1927 AALS conference].
Until reading this essay, I was under the impression that the current poaching of law professors among the top law schools was a uniquely modern phenomenon driven by US News. But that's clearly wrong.
The question remains whether this is good for legal academia. According to this article, recruiting wars are one factor driving (or being driven by) the ubiquitous fund raising campaigns now being conducted by elite law schools (in the $100 million plus range). The writer remarks that "more money has sparked a talent war among elite schools, with renowned professors hopscotching from Columbia to New York University to Harvard to Yale and back again, sometimes with attractive relocation packages." Sounds like a veritable Cook's tour. Posted
by Brian Tamanaha [link]
I think the answer to your question is really dependent on what you mean by "good for." From the standpoint of any individual institution, recruiting top talent is beneficial to increasing enrollment or increasing the (potential) caliber of the students. From the standpoint of the field as a whole, however, having a lot of money chasing a few resources doesn't make sense when the whole field could benefit from other uses of that money. It goes back to discussions I've followed about the relative value of a law degree from an elite institution. What is the value, in the outcome, of ranking degrees in that way? What public good does it serve to do that? These seem to me to be linked to the question you raise.
I enjoyed the intellect and wit of Thomas Reed Powell as a student back in the fall of 1952 in his Con Law course that was all about the Commerce Clause. I know that someone out there has been promising a bio on Powell for several years. I wonder if there is a comparable constitutional scholar out there today that has his sense of humor, at a ready to tweak Justices. Any nominations?