Tuesday, January 29, 2008

The Poaching of Law Professors--Another Old Story

Brian Tamanaha

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.


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?

You don't love someone because they're perfect, you love them in spite of the fact that they're not.
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