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318

ACADEMIC TENURE AND THE DIVIDEBETWEEN LEGAL ACADEMIA AND LEGAL

PRACTICE

GREGORY M.DICKINSON*

Modern law schools do not adequately prepare their students for legal practice. Instead

of emphasizing the technical skills that practitioners require, modern curricula focus

too heavily on the theoretical aspects of the law. This article exposes the dearth of

practical training in law schools and attributes it to the advent and development of the

modern academic tenure system. After uncovering the problem and pinpointing its

cause, the article presents a broad framework for future discussion of potential

challenges to legal education. Finally, the article outlines some promising recent trends

in legal academia and identifies areas that are now ripe for improvement.

I.INTRODUCTION ....................................................................................... 318II.THE DISCREPANCY BETWEEN LEGAL EDUCATION AND PRACTICE ..... 320

A. The Historical Emergence and Role of the University-

Affiliated Law School............................................................. 320B. The Move of Law Schools from their Practical Roots .............. 323C. Modern Manifestations and Sources of the Divide ...................324

1. Faculty Research Agenda....................................................3242. Ineffective Pedagogy........................................................... 3263. Curricular Drift.................................................................... 327

III.THE HISTORY AND EFFECTS OF ACADEMIC TENURE ..........................328A. Tenure in American Universities............................................... 329B. The Relationship Between Tenure and the Divide Between

Legal Education and Legal Practice........................................ 335

IV.WHERE TO FROM HERE ....................................................................... 340A. The Costs and Benefits of Academic Tenure ............................ 341B. The Balancing Act: Advancement that Preserves Freedom ...... 343

V.CONCLUSION......................................................................................... 349

I.INTRODUCTION

Currently, there is a substantial gap between the research interests of

legal scholars at the nations leading law schools and the interests of the

*Gregory Dickinson is a J.D. candidate at Harvard Law School. In 2006, he graduated summa

cum laude from Houghton College with a B.S. in Computer Science, minoring in Philosophy,

Economics, and Mathematics. Greg is currently the Technology Manager and Senior Editor for

the Harvard Journal of Law and Public Policy.

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DICKINSON.DOC 2/10/09 1:02AM

Fall 2008 LEGAL ACADEMIA AND LEGAL PRACTICE 319

students, courts, and practitioners that have traditionally looked to them for

practical instruction and insightful scholarship. This gap is the result of

a variety of causes in the 1950s and 1960s that jointly led to the widespread

adoption of interdisciplinary approaches and an abandonment of the viewof law as an autonomous discipline. These approaches introduce important

insights, but their overemphasis has pushed the pendulum of legal

scholarship too far in the direction of theory. This overemphasis on theory

is alienating students, who rely on their professors to prepare them to

contribute meaningfully to the legal profession, and practitioners, who rely

on legal scholars to provide insightful analysis of complex legal doctrines.

The existence of this gap is well known and has prompted calls for

reform from many quarters. Such calls, however, have gone largely

unheeded, in part, I believe, because of an issue typically considered

independently: academic tenure. Academic tenure has faced much criticism

of late, but its connection to the divide between legal education and legal

practice is not yet properly recognized. In this article I bring thatconnection to light. By tracing the histories of the two phenomena, I show

how academic tenure perpetuates and exacerbates the movement away

from practical legal scholarship, promoting pedagogical and philosophical

inbreeding within academia and insulating law school faculties from the

outside pressures that would otherwise effect change.

Throughout this article I contrast two approaches to legal scholarship

and instruction: practical or doctrinal scholarship and theoretical

scholarship. These approaches are by no means mutually exclusive, and

the boundary between them is sometimes fuzzy, but it is important to

provide at the outset a general notion of what these terms are intended to

convey. Practical or doctrinal scholarship refers to the systematic study of

the law as a body of knowledge to be improved, systematized, and

analyzed. Typical of its focus is the careful exposition of cases and their

underlying principles; its practitioners need not be experts in other fields

because it contemplates law from a self-contained perspective. Scholarship

of this sort is by its very nature accessible to legal practitioners.

Theoretical scholarship, in contrast, seeks to apply various outside fields of

knowledge to the study of law. Its focus is a critique of the law from an

external perspective. It views the law not so much as a distinct discipline

but, rather, as a new landscape onto which the knowledge of other fields

must be mapped. Such scholarship inevitably borrows heavily from other

disciplines, and its discussions are often far removed from concrete cases

and doctrine, limiting its appeal to students and practitioners.In Part II of this paper, I discuss the historical causes and present day

manifestations of the divide between legal scholars and legal practitioners.

I trace the path of American legal education from the original

apprenticeship structure to the modern university-affiliated law school and

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320 THE DARTMOUTH LAW JOURNAL Vol. VI:3

its eventual shift away from practice-oriented education in favor of more

theoretical training. I then discuss several modern-day manifestations of the

shift toward theory, highlighting some of the major sources of concern. In

Part III I discuss the history of academic tenure in the United States,analyzing its origins in the imported German concept ofLehrfreiheit and

highlighting some of the key moments in the history of tenure, particularly

the seminal 1940 Statement by the AAUP and the AAC. Here I note the

connection between the rise of academic tenure and the shift toward theory

in the nations law schools, positing that although academic tenure is not a

cause of the divide, it ispermitting the shift toward theory to continue

unhindered, as law school faculties are insulated from any outside checks

on the drift. Finally, in Part IV, noting that any effective solution to the

divide must adequately address the issue of tenure, I point to several

promising trends in legal education as well as a few potential avenues of

future change.

II.THE DISCREPANCY BETWEEN LEGAL EDUCATION AND PRACTICE

A divide has arisen between what students, courts, and legal

practitioners expect from a legal education and what is actually provided by

the nations law schools. Students expect preparation for practice; judges

and practitioners expect scholarly insight into complex legal matters. These

expectations are increasingly met with disappointment as legal academia

moves away from its practical roots, placing greater emphasis on abstract

theory at the expense of practical scholarship and instruction.1 This section

will trace the historical sources of the shift from practical scholarship to

abstract theory.

A. The Historical Emergence and Role of the University-Affiliated Law

School

Originally, legal education in this country was based on an

apprenticeship model. Practitioners took on apprentices who, for a fee,

were permitted to learn the necessary practical skills through study under

and observation of a practicing lawyer.2 The apprentice system recognized

the importance of hands-on skills training, but this training often came at

1 Alex M. Johnson, Jr., Think Like a Lawyer, Work Like a Machine: The Dissonance

Between Law School and Law Practice, 64 S.CAL.L.REV. 1231 (1991); Harry T. Edwards, TheGrowing Disjunction between Legal Education and the Legal Profession, 91 MICH. L. REV. 34

(1992).2 William R. Trail & William D. Underwood, The Decline of Professional Legal Training

and a Proposal for its Revitalization in Professional Law Schools, 48 BAYLOR L.REV. 201, 204

(1996).

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the expense of instruction in the theoretical underpinnings supporting the

law.3 The quality of instruction varied widely depending on the

practitioner, and apprentices were sometimes exploited as sources of cheap

labor.4

Apprentices were often exposed only to narrow areas of practice,making a systematic and comprehensive education difficult to obtain.5

The private law school movement of the late 18th and early 19th

centuries, represented most notably by the Litchfield School, arose in

response to many of the shortcomings of the apprenticeship model.6 While

maintaining the primary purpose of training lawyers for practice, the

private schools (so called because they were not associated with

universities) systemized legal education in a way that permitted students to

learn practical skills in a setting far more structured than the apprenticeship

model.7 The Litchfield School curriculum, for instance, comprised of a

series of lectures in each of a number of year-long courses,8 permitted

sustained and systematic study across an entire range of legal topics such as

could not be found in an apprenticeship.9 Such curricula broadened andsystematized exposure to legal topics and yet retained the practical focus

that was the mark of the apprenticeship system.

The election of Andrew Jackson in 1828 brought sweeping change to

the landscape of legal education in the United States.10 Followers of

Jacksons egalitarian philosophy, seeking to root out what they saw as

pervasive elitism within American society, took aim at the bar associations

as promoters of a sort of aristocracy.11 By setting rigid standards for entry

to the profession, the bar associations had maintained a great deal of

control over those seeking to enter the profession. Though exceptions were

occasionally made, long periods of apprenticeship were the typical training

required before one could be admitted to the bar.12 Thus, the bar

3 Id. (In a letter to the editor published in the Virginia Gazette on December 30, 1773, an

anonymous justice of the peace argued that the apprenticeship method merely taught the

mechanics of the practice and completely ignored the theories, reasons, origins, purposes, and

policies of the law.) (footnotes omitted).4 E. Gordon Gee & Donald W. Jackson, Bridging the Gap: Legal Education and Lawyer

Competency, 1977 B.Y.U L. REV. 695, 724 (1977).5 Seeid. at 731.6 Id. at 726.7 Gee & Jackson, supra note 4, at 726.8 Id.; interestingly, the courses offered were not so very different from those taught today.

Subjects included: property, contracts, procedure, and commercial law.Id.9 The effectiveness of the Litchfield model can be seen in the product of its efforts. While it

graduated only about one thousand students in its entire history, a substantial number went on to

become influential public figures.Id. at 727 (Its alumni included Vice Presidents of the UnitedStates, Justices of the United States Supreme Court, judges of state supreme courts, numerous

state and national legislators, and many other luminaries.) (footnote omitted).10 Id. at 729.11 Id. at 72830.12 Id. at 728.

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associations promoted the apprenticeship model and in so doing invoked

the wrath of Jacksons supporters who saw strict admittance requirements

as a barrier to the empowerment of the common man and a perpetuator of

elitism.13

By the 1820s, Jacksonian egalitarian philosophy had pervaded

government. Consequently, during the next two decades, state legislatures

asserted their authority and cast the bar associations from their once

powerful position as gatekeepers to the profession.14 This ultimately

resulted in a system almost entirely devoid of regulation. Nearly anyone

of good moral character, regardless of his knowledge of the lawor lack

thereofwas permitted to enter practice.15 Although the apprenticeship

system remained the primary form of legal education during this period, its

importance began to wane as would-be lawyers had less incentive to

subject themselves to its flawed and often exploitative rigors.16 The private

schools also fell from favor during this period for the same reason.17 Absent

stringent bar admittance standards, what purpose could a student see in aLitchfield education? Thus, the rise of Jacksonianism effectively quashed

all existent forms of legal education.

In the post-Jacksonian era, a system of university-affiliated legal

education began to supplant the apprenticeship and private school systems

as the most common method of legal instruction.18 A number of factors

combined to produce this change. First, the apprenticeship system had

always suffered from a number of shortcomings. Apprentices were often

used as cheap labor, giving up much more than they gained in the process.19

Furthermore, the education gained was typically unsystematic and

unfocused.20 Second, a void emerged in the wake of Jacksonianism upon

which universities were able to capitalize.21 Although private schools such

as the Litchfield School, by systematizing legal education, had offered a

partial remedy to the woes of the apprenticeship model, such schools

remained entirely practically oriented and could not confer an academic

degree.22 The importance of academic education was rising during this

time, and the idea developed that the practical and systematic focus of the

private schools could be combined with an education in the underlying

theory possible at the universities to produce a legal education system

13 See id. at 72829.14 Id. at 72930.15 Id. at 730.16 Id. at 72931.17

Id.18 Trail & Underwood, supra note 2, at 20708; see Gee & Jackson, supra note 4, at 73031.19 Trail & Underwood, supra note 2, at 208 n.32.20 Id.21 See Gee & Jackson, supra note 4, at 731.22 Id.

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unmatched by either the apprenticeship system or the private schools. 23

Such a combination would allow the resulting school to confer an academic

degree and gain respect as part of the university, while retaining much of

the systematic and practical focus that had been the source of the success ofthe private schools. From their inception, university-affiliated law schools

were the result of a compromise between a purely theoretical understanding

of legal philosophy and a purely practical understanding of legal doctrine.

B. The Move of Law Schools from their Practical Roots

Though initially established as a combination of both theoretical and

practical approaches to legal education, it was not long before university-

affiliated law schools began to shift, under the influence of the university,

toward a more theoretical approach to legal education.

As early as in 1890, the Standing Committee on Legal Education of the

ABA stated that the rapid growth and success of the law schools mustnot make us forget that there are also peculiar advantages in the older

method of office instruction which should not be lost sight of if we can

help it, and that these schools, like all human institutions, are susceptible

of almost indefinite improvement.24

A review of legal education in the United States, requested by the

Committee on Legal Education in 1913, resulted in two reports by A.Z.

Reed expressing concern about the over-emphasis of theory in American

law schools.25

Reed suggested four ways to produce law graduates that had appropriate

exposure to legal doctrine and practical skills: (1) faculty contact with

legal practice; (2) law school courses in the practical application of the

law; (3) imitation of practical activities within the law school, includingmoot courts, drafting of written instruments, and problem-method

training in the use of judicial decisions; and (4) greater emphasis upon

the concrete law of a particular jurisdiction, as distinguished from the

generalized law taught by the leading schools.26

Throughout the next several decades, the call for a return to a more

balanced approach to legal education continued, with Jerome Frank, among

others, urging the schools to educate students in what lawyers actually do.27

Law schools remained unresponsive to such urgings, instead continuing to

drift further from their practical predecessors, the private schools.28

23

See id. at 73132.24 Trail & Underwood, supra note 2, at 20809 (footnote omitted).25 Id. at 209.26 Gee & Jackson, supra note 4, at 757.27 Trail & Underwood, supra note 2, at 20910.28 Id.

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C. Modern Manifestations and Sources of the Divide

This slow and steady march of legal education away from practical

pertinence has continued through to the present day.29

Law schools havebecome increasingly focused on the theoretical, subordinating the needs of

students and practitioners to pursuits of philosophical scholarship.30 This

discrepancy between legal education and practice is manifested in and

perpetuated by a number of areas within the legal academy. First, faculty

members of American law schools often have little inclination (or even,

arguably, ability) to engage in systematic doctrinal instruction or

scholarship.31 Second, the pedagogical methods of such faculty members

are poorly suited to train students in the skills necessary for the practice of

law.32 Third, the curricula of many schools fail to provide sufficient

grounding in the doctrine and legal practice.33

1. Faculty Research Agenda

The research agenda of the faculty at U.S. law schools has steadily

moved away from practice-oriented research and instruction to more

theoretical pursuits.34 Over the last few decades, law and economics and

other interdisciplinary movements, as well as critical legal studies

movements, have risen to prominence in American law schools.35 These

diverse approaches have the potential to lend much to the study of law.

Law and economics, for instance, by applying economic concepts to

determine maximally efficient solutions to open legal problems or to

29 Seeid. at 210; see Edwards, supra note 1, at 3436; see Johnson, supra note 1, at 123133.30 See Trail & Underwood, supra note 2, at 21314 (Scholarship is, however, increasingly

the engine that drives the teaching train in law school. . . . Teaching tuition-paying students is

becoming an evil necessary to finance the theoretical scholarship of the faculty.").31 See id. at 210 (When a faculty member has never practiced law (or practiced only briefly),

the absence of practice experience tends to suggest either a lack of interest in practicing law or a

lack of aptitude for practicing law. A faculty member disinterested in the practice of law is not

likely to develop such an interest as a member of academia.).32 See, e.g., Edwards, supra note 1, at 39 (Some law schools grant J.D.s but allow

professors to ignore or disparage legal doctrine, on the assumption that bar review courses will

prepare students to pass the bar and that students will then learn whatever they need to know from

their employers.).33 See. e.g., Trail & Underwood, supra note 2, at 216 (While law schools are adding more

electives based on other disciplines, or on theory unrelated to doctrine, the practice of law is

becoming increasingly complex and specialized. Ironically, as changes in law practice suggest the

need for a greater allocation of law school resources to practical courses, law schools have electedinstead to redirect resources away from courses that examine legal doctrine in a practical

context.).34 Edwards, supra note 1, at 34; Johnson, supra note 1, at 123133; Trail & Underwood,

supra note 2, at 21011;35 Edwards, supra note 1, at 34.

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propose practical changes to existing law, can play an important role in

helping to shape effective legal policy. Unfortunately, many proponents of

interdisciplinary scholarship fail to maintain an adequate level of practical

relevancy.36

Such scholarship, pursued without regard to the very realpractical constraints of existing law, is of little use to the practitioner who

must make a convincing argument based on the law as it presently stands.

It makes little difference to a judge what the law ought to be or what justice

requires in some abstract sense if statutory law prevents such an outcome.

Purely theoretical work remains, of course, important, but it should not be

taken up at the expense of practical scholarship.37 This is precisely what is

happening, however, in many of the nations top law schools. Practical

doctrinal scholarship and instruction are being sacrificed in favor of pure

theory, with the result that students graduate unprepared for and

unaccustomed to the demands of practice, and practitioners are denied

useful insight into complex areas of the law.38

This movement toward the theoretical is undoubtedly exacerbated andperpetuated by the trend toward hiring J.D.-Ph.D.s with little significant

practical experience. In fact, significant time in practice is now often

considered detrimental to ones likelihood of obtaining an academic

appointment.39 As legal scholarship has become steadily more theoretical,

candidates with advanced degrees have become ever more attractive to

hiring committees. A study compiled by Professor Lawrence Solum found

that of 161 reported tenure-track entry-level hires at American law schools

in the 20052006 hiring season, all but 40 had received graduate training in

addition to their J.D.40 These candidates, though well suited to produce

interdisciplinary scholarship, may often be ill-suited to produce doctrinally-

oriented scholarship of use to practitioners.

Law faculty members who do not comprehend, appreciate, or care about

the problems of practicing lawyers are not likely to address their

scholarship to those problems. Consequently, as the professional profile

of law school faculty members has changed, the nature of legal

36 Id.37 Judge Edwards, of the D.C. Circuit, interestingly notes that he would have no objection at

all to impractical legal scholarship so long as law professors are well suited to produce it, and

practical work is still pursued by others, but he see[s] no reason why law professors should

write mediocre economics, or philosophy, or literary criticism, when arts and sciences professors

could be doing a better job. Edwards, supra note 1, at 3536.38 See Edwards, supra note 1, at 34 (lamenting the frequently purely theoretical application of

the various interdisciplinary and critical legal studies movements); see also Johnson, supra note

1, at 123132 (discussing the frustration of his former students over their unpreparedness forlegal practice).

39 Trail & Underwood, supra note 2, at 211.40 Lawrence, Solum, Legal Theory Blog, Law School Entry Level Hiring Report (200506

Hiring Season), http://lsolum.blogspot.com/archives/2006_05_01_

lsolum_archive.html#114129865560132000 (last visited Apr. 10, 2008).

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scholarship has changed in focus and audience. Rather than doctrinal

scholarship directed to lawyers and judges, todays legal scholarship is

increasingly theoretical and directed to other academics.41

It seems likely that, absent significant changes in the structure of legaleducation, this trend will continue for the foreseeable future. As law school

faculties become increasingly dominated by theoretically-oriented scholars,

a demonstrated interest in practical doctrinal work will increasingly be seen

as a liability in consideration for tenure-track positions.42 Reflecting this,

todays aspiring legal academics are not exhorted to gain the practical

knowledge requisite to insightful doctrinal scholarship and classroom

instruction; rather, they are pushed toward interdisciplinary study and early

scholarship.43 Thus, doctrinal scholarship, once the mainstay of the legal

academy, continues to fall from favor as professorships are filled with

scholars who have no desire (or even capacity because of lack of

experience) to produce such works.44

2. Ineffective Pedagogy

The effects of these changes in faculty composition are not limited to

practitioners who have lost an important source of guidance. The research

interests of law school faculty members have a significant impact on

students as well. Impractical scholars are often either unwilling or unable to

teach in a way that provides practical interaction with the subject matter of

the course.45 I do not intent to suggest any malign or callous motivation

behind such actions. The professor who emphasizes theory at the expense

of the practical surely does so not to harm his students, but because he

views such theory as the most important aspect of the course. This mindset

comes quite naturally to the scholar whose research agenda focuses entirely

on the theoretical, and as the number of theoretically-oriented scholars has

risen, there has been a corresponding shift toward a focus on theory in the

law school classroom.

41 Trail & Underwood, supra note 2, at 211.42 See id.43 See, e.g., Dina Awerbuch, Professor Levinson Demystifies the Path to Legal Academia,

The Record, Oct. 18, 2007,

http://media.www.hlrecord.org/media/storage/paper609/news/2007/10/18/News/Prof-

Levinson.Demystifies.The.Path.To.Legal.Academia-3044745.shtml (last visited Apr. 10, 2008)

([T]he modern credential of choice for law school hiring committees is a graduate degree in an

allied field such as economics, political science, and even English or psychology. Approximately

twenty-five percent of entry-level professors hired last year had Ph.D.'s, and a large number hadMaster's degrees.).

44 Trail & Underwood, supra note 2, at 21112.45 See Edwards, supra note 1, at 34 (Impractical scholars often are inept at teaching

doctrine, for either lack of any practical experience or lack of interest in the subject matter, or

both.).

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Theory, of course, is nothing to be afraid of. It was, in part, an over-

emphasis on legal practice and a lack of theory that originally gave rise to

the law school as a replacement to the apprenticeship model.46

Nevertheless, theory must be carefully tied to legal doctrine and practicalskills if it is to have its greatest effect. Particularly in the first year of study,

students must be given a firm doctrinal ground on which to stand before

they are prepared to engage properly with the theory supporting that

doctrine. Professors overzealous for the theoretical, inexperienced, and

unacquainted with the practical, are inclined to dive straightway into

background theory before students have been given a chance to sufficiently

master the basics. Most students have no deep aversion to theory. In fact,

they would likely find the insights offered by a knowledgeable professor

quite valuable. Before they can recognize the value of theory, however,

their hunger for doctrine must be satisfied. Judge Edwards offers this

telling anecdote, related by a former law clerk: Students quickly realize

that the theorist professor, who likes to talk in class about philosophy andpolitical theory, is ultimately going to test them solely on doctrine. So they

ignore all of the professors policy discussions and perk up only when

doctrine is discussed.47 These students failed to see the utility of theory

because they were denied a foundational education in doctrine, and the

theory presented was disconnected from the core practical concepts of the

course.

3. Curricular Drift

The curricula of modern law schools represent a third area of

disconnect between legal education and practice related to the others. As

law school faculties have become increasingly filled with theoretical

scholars, the curricula have changed to reflect the changed attitudes of legal

academics. The number of electives available to students has expanded

dramatically in recent years, while the number of required courses has been

reduced.48 This would not be a great problem if not for a corresponding

shift in the role of electives in legal education. Originally, electives served

to supplement existing courses by focusing on new and emerging areas of

law.49 Early examples, in the 1920s and 1930s, included administrative law,

labor law, taxation, and trade regulation.50 In todays law schools, however,

electives more frequently focus on interdisciplinary areas, often with little

46 Seesupra text accompanying notes 1823.47 Edwards, supra note 1, at 60.48 Trail & Underwood, supra note 2, at 214.49 Id. at 215.50 Id.

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direct connection to the law.51 Interdisciplinary approaches can offer

important insight into the law, but must be carefully tied in to the law if

they are to offer students the greatest benefit.52 Further, students must be

exposed to basic principles of doctrine before the supplemental insightsoffered by interdisciplinary approaches will be helpful. Finally, even when

such electives are utilized effectively, the cost of offering them must be

borne in mind. While the examination of other disciplines and other forms

of analysis can be useful to the development of a lawyer, adding these new

electives and persons qualified to teach them consumes resources that

would otherwise be available for instruction more directly relevant to new

lawyers.53 Electives are an important component of legal education, but

their imposition into the realms of other graduate schools and their

exaltation at the expense of more practical instruction raise significant

concerns54 and evince the greater trend within legal education to favor high

theory over practical doctrine.

III.THE HISTORY AND EFFECTS OF ACADEMIC TENURE

As seen in the previous section, the focus of legal academia has

changed dramatically since the appearance of the first law schools. The

movement toward the preeminence of theory is the result of a great number

of factors including: the rise of the interdisciplinary and critical legal

studies movements, the entrenchment of a theory-oriented faculty, and the

trend toward hiring J.D.-Ph.Ds lacking practical work experience.55 The

supplantation of the apprenticeship system by the university-affiliated law

schools that occurred in the wake of Jacksonianism was successful, in part,

because of a compromise between competing views of what a law school

ought to be.56 The apprenticeship and private school models offered

practicality but lacked the academic pedigree of the universities. By

combining the models in a grand compromise, the university-affiliated law

schools strove to simultaneously incorporate both the theoretical and the

51 Seeid.52 Johnson, supra note 1, at 1257 ([L]aw and other courses should emphasize the law, not

the other, and should provide no more than an enriching additional perspective.).53 Trail & Underwood, supra note 2, at 216.54 Professors Trail and Underwood, for instance, express concern that the trend toward

interdisciplinary electives is occurring at a time in the development of the law when systematic

and focused study of doctrine is becoming increasingly necessary. They note that [w]hile law

schools are adding more electives based on other disciplines, or on theory unrelated to doctrine,

the practice of law is becoming increasingly complex and specialized. Ironically, as changes inlaw practice suggest the need for a greater allocation of law school resources to practical courses,

law schools have elected instead to redirect resources away from courses that examine legal

doctrine in a practical context.Id.55 See supra text accompanying notes 2428, 3941.56 See Gee & Jackson, supra note 4, at 73132.

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practical.57 Althoughthis move was largely successful, the pendulum of

legal academia has ever since swung slowly and steadily toward theory

above and often to the exclusion of practical doctrine. Legal scholarship

and law school curricula are becoming increasingly theoretical, and thetrend appears poised to continue as schools increasingly hire teachers with

little or no practical experience.

The movement away from practical doctrine begs the question of what

can and should be done to ensure that students continue to be adequately

prepared for practice and that legal scholars produce needed doctrinal

scholarship. I believe that academic tenure, thoughnot alone the cause of

the shift is partly responsible for its unchecked continuance. Tenure affects

the selection and dismissal of faculty members in ways that have

encouraged the shift and, to a large extent, prevented a correction toward a

more optimal balance. The relationship between tenure, and the divide

between legal practice and legal academia has been largely ignored by

those investigating either issue, but they must be examined together. In thissection I will review the historical role of academic tenure to provide the

groundwork necessary for a later discussion of possible changes to legal

education.

A. Tenure in American Universities

American universities in the early 19th century were starkly different

from those we know today. They were largely sectarian and had as their

mission the production of clergymen.58 Faculty members of such

institutions conducted little original research, as their primary role was to

convey established dogma.59 So long as this perception of the universitys

role remained, there was no need for tenure. As the 19th century

progressed, however, the landscape began to change. Many Americans

began to attend the renowned research universities of Germany.60 After

completing their studies these students would frequently return to the

United States as teachers, bringing with them many of the underlying ideals

of the German universities, and planting the seeds of a transformation.61 In

particular, Americans were exposed to the German concept ofLehrfreiheit,

which roughly translates to teaching freedom, and broadly encompasses

57 Id.58 Brian G. Brooks, Adequate Cause for Dismissal: The Missing Element in Academic

Freedom, 22 J.C. & U.L 331, 336 (1995); see also Lawrence White, Academic Tenure: ItsHistorical and Legal Meanings in the United States and its Relationship to the Compensation of

Medical School Faculty Members, 44 ST. LOUIS U. L.J. 51, 57 (2000).59 White, supra note 58, at 57.60 Id.61 Id.

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all that we now group under the term academic freedom. Lehrfreiheit

encompassed two important freedoms.62 First, the scholar was free to

research and study as he saw fit and to publish his findings. Second, the

scholar was free from administrative interference regarding his teachingduties. He was free to lecture on subjects of his choice with no fear of

censure. These freedoms were viewed as requisites to the university system

and fundamental to the definition of scholarship itself.63

This infusion of the German Lehrfreiheit ideal occurred at a critical

time in American history. The industrial revolution created an increasingly

complex economy that demanded ever more specific technical skills, and

universities were not adequately preparing students for such a world.64

There was a call for greater specialization and expertise among faculty

members to keep pace with an economy that no longer demanded budding

clergymen but highly trained professionals and scientists.65 During the

latter part of the 19th century, universities reflected the growing division of

labor within the economy as the professorate reorganized into specializeddepartments.66 This reorganization resulted in a faculty with a

more specialized focus that could best be evaluated by its peers rather than

by administrators or lay trustees.67 As administrators were forced by the

specialized nature of the faculty to consult with the faculty before making

bureaucratic decisions, [i]t was but a short step to suggest that faculty be

involved in a judicial proceeding to determine whether a peer should be

dismissed.68

A specialized faculty ensured continued meaningful interaction with

the ever-changing world, but it brought with it a potential for conflict. As

scholars critiqued and explored within their specialized field, they

frequently delved into the controversial, invoking the ire of administrators

who were straining to retain control over the universities.69 The church,

trustees, and presidents of the universities expected the faculty to advocate

62 Id; see also Walter P. Metzger, Profession and Constitution: Two Definitions of Academic

Freedom in America, 66 TEX. L. REV. 1265, 126970 (1988).63 Id; see also ROBERT M.MACIVER,ACADEMIC FREEDOM IN OUR TIME 188 (1955) where

Professor MacIver explains the cultural underpinnings ofLehrfreiheit. The purpose of academic

freedom was not the benefit of the student but, rather, the privilege of the teacher. Lehrfreiheit,

so understood, was associated with the dignity of the scholar, with a high respect for his function

that is now mostly lacking in this country . . . . Academic freedom was thought of as a kind of

professional prerogative.Id.64 Brooks, supra note 58, at 337.65

Id. at 33738.66 James J. Fishman, Tenure and its Discontents: The Word Form of Employment

Relationship Save all of the Others , 21 PACE L. REV. 159, 16465 (2000).67 Id.68 Id.69 Brooks, supra note 58, at 338.

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socially accepted points of view.70 Traditionally, divergence from such

views was grounds for dismissal. The technological and philosophical

shifts of the era, however, made it increasingly apparent that significant

advances in the sciences would require greater freedom of academicthought.71 In his 1907 commencement address, Harvard president Charles

W. Eliot addressed this tension when he noted that:

[S]o long as . . . boards of trustees of colleges and universities claim the

right to dismiss at pleasure all the officers of the institutions in their

charge, there will be no security for the teachers proper freedom . . . .

[I]t is easy for a department to become despotic, particularly if there be

one dominant personage in it.72

His statement was one of the first to link the concept of academic

freedom, adopted by American universities after their exposure to

Lehrfreiheit, with the goal of avoiding administrative encroachment on

faculty positions.73

The modern concept of academic freedom during this period hung inthe balance of the struggle between the faculty pushing for greater freedom

and administrators attempting to retain control of the universities.74 The

economic changes of the industrial revolution, however, slowly forced the

hand of the administrators. As the economy demanded highly trained

scientists, universities sought out the skilled specialists capable of

providing such an education.75 Such professors, in turn, demanded higher

pay and the greater professional autonomy necessary to advance the

sciences.76

The issue of academic freedom for university professors came to a

head in 1900 with the firing of Edward A. Ross, a Stanford University

economics professor.77 Professor Ross was a social activist who espoused

many positions unpopular with the moneyed class at a time when most

economists were Republicans.78 Ross supported the ideas of free silver, a

ban on Oriental immigration, municipal ownership of utilities, and public

scrutiny of the Southern Pacific Railroad, and he had supported William

Jennings Bryan for the presidency.79 Each of these positions would have

70 Id.71 Id.72 ROBERT HOFSTADTER & WALTER P. METZGER, THE DEVELOPMENT OF ACADEMIC

FREEDOM IN THE UNITED STATES 398 (1955).73 White, supra note 58, at 62.74 See Brooks, supra note 58, at 33738.75

Id. at 338.76 Id.77 Fishman, supra note 66, at 165.78 Id.79 Id.; Walter P. Metzger, Academic Tenure in America: A Historical Essay, in Faculty

Tenure: A Report and Recommendation by the Commission on Academic Tenure in Higher

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clashed with the prevailing views of the wealthy university administrators,

and his arguments for increased scrutiny of the railroads likely touched a

particularly sensitive nerve of Jane Lothrope Stanford, sole trustee of

Stanford University and widow of railroad baron Leland Stanford who hadfounded and funded the university.80 Mrs. Stanford learned of Rosss views

and demanded that he be dismissed to avoid disgracing the universitys

reputation.81 David Starr Jordan, the president of the university, forced to

choose between protecting the professor and alienating the universitys

benefactors or dismissing the professor and protecting the future financial

welfare of the institution, eventually agreed to dismiss Ross as Mrs.

Stanford requested in the interest of the larger good of the university.82

Following his dismissal, Ross immediately took his story to the press.

Populist journalists rallied behind his story and condemned the moneyed

class of university administrators in the name of academic freedom.83 The

public uproar alone was not enough, however, to turn the tide in favor of

freedom. In 1913, more than a decade after Rosss dismissal, ProfessorWilliam C. Fischer was dismissed from his position with the economics

department at Wesleyan University.84 Professor Fischer, who years earlier

in a show of support to Ross had resigned his position at Stanford,85 was

dismissed from Wesleyan because of a speech he had delivered urging the

relaxation of Sabbath observance and the importance of good works over

church attendance.86 After reading a newspaper account of the speech,

William A. Shanklin, president of the university, wrote to Fisher that his

opinions were so far out of the harmony with the spirit of the college

which, though in no wise sectarian, is, and always has been, profoundly in

sympathy with the Christian churches that his continuance in his position

was undersirable.87

This same year, a group of professors at Johns Hopkins University, led

by the philosopher Arthur Oncken Lovejoy, another professor who had

resigned his post at Stanford in support of Ross,88 signed and distributed a

letter to their colleagues at nine leading universities calling for them to join

together in the formation of a national association of professors.89 The

proposed association was to protect the interests of university professors by

Education 93, 138 (1973).80 Id. at 13839; Fishman, supra note 66, at 16566.81 Metzger, supra note 79, at 138.82 Id. at 13839.83 Id. at 139; see also Fishman, supra note 66, at 16566.84

Metzger, supra note 79, at 146.85 White, supra note 58, at 61.86 Metzger, supra note 79, at 146.87 Id.88 Id. at 137.89 Id. at 135.

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the formation of general principles regarding tenure and legitimate grounds

for dismissal of faculty, and the establishment of a representative judicial

committee to investigate cases of alleged interference with academic

freedom.90

The letter was well received, and two years later, in 1915, the

American Association of University Professors (AAUP) was formed and

issued a General Report on Academic Freedom and Academic Tenure that

has come to be known as the 1915 Declaration of Principles.91 The

document identified three elements of academic freedom: freedom of

inquiry and research; freedom of teaching within the university or college;

and freedom of extra-mural utterance and action.92 The document argued

that if universities are to advance human knowledge and benefit the public

they must be free from the private interests of the administration, and

concluded by offering a number of practical proposals for meeting its

goals.93 Finally, in 1925, a Conference Statement was signed by the

Association of American Colleges. Though significant as the first code of judicial tenure to be signed by a body of college presidents, it marked a

significant retreat from the AAUPs initial hopes embodied in the 1915

Declaration.94 It provided only that predismissal hearings by the faculty

were desirable, that charges based on extra-mural utterances should be

submitted to a faculty committee, and that decisions not to renew

appointments should be taken in conference with the department

involved.95

In 1940 the AAUP and the American Association of Colleges, after

several years of negotiations, agreed to a new Statement of Principles. 96

The 1940 Statement marked a dramatic moment in the history of academic

freedom. Its basic principles have received widespread endorsement, and

the Statement stands as the most influential of all such documents.97 It

embodied two new rationales. First, it tied security of employment to years

of service.98 It was the first document to describe the pretenure employment

period as probationary, thus making it clear that it was a pretenure stint

90 Fishman, supra note 66, at 16667.91 General Report of the Committee on Academic Freedom and Academic Tenure, 1 AAUP

Bull. 17 (1915), reprinted in 53 L. & Contemp. Probs. 393 (1990); Metzger, supra note 79, at

135.92 General Report of the Committee on Academic Freedom and Academic Tenure, supra note

91, at 393.93 Id. at 395.94 Metzger, supra note 79, at 151.95

Id.96 Id. at 152; 1940 Statement of Principles on Academic Freedom and Tenure , reprinted in

Faculty Tenure: A Report and Recommendations by the Commission on Academic Tenure in

Higher Education, supra note 79, at 249.97 Metzger, supra note 79, at 152.98 Fishman, supra note 66, at 168.

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and not a collection point for a supply of cheap, submissive, and unhopeful

labor.99 The document specified that university professors are to be hired

for a probationary period not to exceed seven years after which they are to

be granted permanent or continuous tenure.100

Second, it made alldismissals, except in cases of financial exigency, for cause and reviewable

by a trial-type procedure.101 Specifically, the document required that after

tenure is granted terminations may only be made for adequate cause,102

and that during termination proceedings the accused teacher should be

informed before the hearing in writing of the charges against him and

should have the opportunity to be heard in his own defense by all bodies

that pass judgment upon the case, he should be permitted to have counsel,

and there should be a full stenographic record of the hearing available to

the parties concerned.103

After the momentous 1940 Statement, the principles of academic

tenure were adopted across all of academia.104 A number of factors

coincided to produce such dramatic acceptance of the Statementsprinciples. First, the AAUP vigilantly policed adherence to the 1940

Statement, shaming any transgressors into correction.105 Second, public

academic teachers were enabled, after the overthrow of the Holmesian

doctrine that public employment was a privilege able to be retracted, to

claim that they had a constitutional right to be heard by the state in its role

as employer.106 Third, there was a general trend in many employment

sectors toward providing more procedural safeguards to dismissal.

[A]cademic due process did not seem strange when school teachers got

99 Metzger, supra note 79, at 152.100 1940 Statement of Principles on Academic Freedom and Tenure , reprinted in Faculty

Tenure: A Report and Recommendations by the Commission on Academic Tenure in HigherEducation, supra note 79, at 251.101 Fishman, supra note 66, at 168; see also Metzger, supra note 79, at 153.102 Adequate cause was intentionally left undefined by the Statement under the assumption

that this would serve to better protect academic freedom than an enumerated list of permissible

causes for dismissal. See Metzger, supra note 79, at 153 n.91 (Aside from an oblique reference

to moral turpitude and a suggestion as to how incompetence should be judged, this statement did

not define adequate cause for dismissal . . . . This failure to set forth a penal code should not be

attributed to laziness or inadvertence. Though silence by the organized professions leaves each

institution to its own devices, it is probably more protective of freedom and tenure than a listing

of capital offenses. Such an enumeration might contain provisions that would outlive the occasion

that gave them pertinence, might be applied with so much literalness that no room would be left

for judging motives or considering the defendants record as a whole, might invite the addition of

new prescriptions whenever contemporary excitements led to misconducts not itemized on the

list.).103

1940 Statement of Principles on Academic Freedom and Tenure , reprinted in FacultyTenure: A Report and Recommendations by the Commission on Academic Tenure in Higher

Education, supra note 79, at 252.104 Metzger, supra note 79, at 155.105 Id.106 Id.

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the right to predismissal hearings under state tenure laws and when workers

covered by union contracts were accorded an elaborate right to grieve. 107

A complete explanation of the broad acceptance of academic tenure

following the 1940 Statement also requires review of the academiceconomy of the period. The Great Depression led to a contraction of

academic employment in the 1930s. Following World War II, as demand

for education greatly increased, the depleted academic system was forced

into a period of explosive growth, doubling its capacity in a single

decade.108 A large number of new universities competed to attract a

relatively smaller number of potential professors, making the promise of

tenure essential to adequately staffing a faculty.109 Thus, vigorous

promotion by the AAUP, changes in general societal attitudes toward

employment dismissals, and the economic realities of the mid 20th century

combined to produce lasting changes in the employment structures of

universities. Tenure was now firmly established, under the framework of

the 1940 Statement, across nearly every academic institution in the UnitedStates.110

B. The Relationship Between Tenure and the Divide Between Legal

Education and Legal Practice

Much ink has been spilt bemoaning the ills or defending the merits of

the modern academic tenure system,111 and nearly as much has been spilt

detailing the growing divide between legal education and legal practice,112

but little, if any, consideration has been given to the relationship between

the two. This is a significant oversight. Neither issue can be fully

understood independent of the other. In this section I will investigate the

historical and present-day relationship between the two phenomena before

moving on to discuss potential forward-looking modifications to the legal

education system.

It would be impossible to make out the claim that tenure has

singlehandedly caused the divide between legal practice and academia, and

I do not set out the make such a claim here. The divide is likely the result

107 Id.108 Id. at 156.109 Seeid.110 See id. at 155.111 See, e.g., Robert W. McGee & Walter E. Block,Academic Tenure: An Economic Critique,

14 HARV. J.L. & PUB. POLY 545 (1991) (attacking the traditional justifications for academictenure: cost effectiveness, academic freedom, and pedagogical quality); James J. Fishman,

Tenure: Endangered or Evolutionary Species, 38 AKRON L. REV. 771 (2005) (arguing that

despite limitations and negative effects of the tenure system it must be maintained in some form

to preserve academic freedom).112 See, e.g., Edwards, supra note 1.

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of dozens of interrelated factors and such a detailed analysis is well beyond

the scope of this discussion. Instead, I consider the relationship of tenure to

some of the historical movements most closely associated with the divide

in an effort to expose tenures role in the shift of legal academia away frompractice. Ultimately I conclude that thoughtenure is not a direct cause of the

shift, its adoption by law schools has permitted a division to arise that

would not otherwise have been possible.

Legal scholarship in the early university-affiliated law schools

revolved around doctrinal analysis, the systematic study of law as a sort of

science. Such scholarship involves the careful study of cases with a view to

reconciling ambiguities between seemingly contradictory opinions,

drawing inferences from patterns of reasoning in the case law, and

systematizing the law of particular fields.113 Doctrinal analysis is a largely

autonomous type of legal scholarship. Its practitioners need not be experts

in other fields because it contemplates the law from a self-contained

perspective, considering whether a given opinion is clear, well reasoned,and consistent with the precedents, the statutes, and the Constitution, [and]

also whether it is right in the sense that it is consistent with certain

premises about justice and administrative practicality.114 Scholarship of

this sort is by its very nature accessible by and pertinent to legal

practitioners. Its topic is the practical analysis of the law, and the reader

need not be versed in the complexities of outside disciplines.

This view of legal scholarship, so prominent in the earliest law

schools, was inspired by the successes of the Scientific Revolution. 115 Legal

positivism swept through American universities as legal scholars attempted

to develop a systematic view of the law to rival the rigorous methods of

mathematics and physics.116 The movement, however, was not merely an

expression of rivalry among academics, rather, [i]t was an earnest attempt

to show that law had an autonomous place in the cadre of positive sciences,

that it could not and should not be subsumed by theology, politics,

philosophy, or economics.117 In America, it was Christopher Columbus

Langdell who most strongly advanced the view of law as an independent

113 Richard A. Posner, The Present Situation in Legal Scholarship, 90 YALE L. J. 1113, 1113

14 (1981) ([Doctrinal analysis] involves the careful reading and comparison of appellate

opinions with a view to identifying ambiguities, exposing inconsistencies among cases and liens

of cases, developing distinctions, reconciling holdings, and otherwise exercising the characteristic

skills of legal analysis. It is the scholarly tradition most closely associated with the Harvard Law

School, though it is waning even there.).114 Id. at 1114.115 John Witte, Jr., Law and Religion: The Challenges of Christian Jurisprudence, 2 ST.

THOMAS L.J. 439, 440 (2005).116 Id.117 Id.

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scientific discipline.118 To him, the essential core of the law, the law which

was the proper subject for study, was divorced from the normative inquiries

of philosophy and economics.119 Langdell boldly declared that law is a

science, and that all the available materials of that science are contained inthe reports of the cases.120 This narrowed view of the scope of legal

scholarship stood in stark contrast to the approaches of previous eras which

had incorporated other disciplines such as theology, ethics, and psychology

in the study of a higher natural law to guide the positive law of the state. 121

Against such views, Holmes, an early proponent of positivist theory,

retorted: The common law is not a brooding omnipresence in the sky, but

the articulate voice of some sovereign or quasi sovereign that can be

identified.122 Led by Holmes, this new narrow, scientific view of the law

came to dominate the academy in the early part of the 20th century.

Through the early 1960s, this approach to legal scholarship remained

relatively123 unchanged and unchallenged. Law was seen as an autonomous

discipline the focus of which was doctrinal analysis of the case law. In theearly 1970s, however, a number of factors converged to completely reshape

the landscape of legal scholarship.124 First, the general ideological

consensus that had existed among law schools began to disintegrate. In the

1940s through the 1960s the radical right had fallen from favor for its

isolationism and racism, and the radical left because of the Cold War. 125

This left a relatively narrow ideological spectrum into which faculty

members at the law schools fell, which naturally resulted in the

continuance of the scientific view of law.126 If all parties agree on the basic

118 Id. at 441.

119 Id.120 John Wigmore, Nova Methodus Discendae Docendaeque Jurisprudentiae, 30 HARV. L.

REV. 812, 820 (1917).121 See Witte, supra note 115, at 44142.122 S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting).123 I say relatively because throughout all of the 20th century the Langdellian view of legal

scholarship was challenged by a small number of dissenting voices.

Already in the 1920s and 1930s, sociologists of law argued that the nature and purpose of law

and politics cannot be understood without reference to the spirit of a people and their timesof a

Volksgeist und Zeitgeist as their German counterparts put it. The legal realist movement of the

1930s and 1940s used the new insights of psychology and anthropology to cast doubt on the

immutability and ineluctability of judicial reasoning. The revived natural law movement of the

1940s and 1950s saw in the horrors of Hitler's Holocaust and Stalin's gulags, the perils of

constructing a legal system without transcendent checks and balances. The international human

rights movement of the 1950s and 1960s pressed the law to address more directly the sources and

sanctions of civil, political, social, cultural, and economic rights.Witte, supra note 115, at 442.124 Id. at 443.125 Richard A. Posner, The Decline of Law as an Autonomous Discipline: 19671987, 100

HARV. L. REV. 761, 76567 (1987).126 Id. at 76667.

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principles, all that remains is to subject the facts to carefully reasoned

analysis. Today, however, there is no common foundation among legal

thinkers on which to base a scientific system of legal study. Ideologies are

so widely divergent that two eminently reasonable legal thinkers will arriveat solutions as different as the first principles of their authors.127 It has

become evident that an autonomous science of legal reasoning alone cannot

provide definitive solutions.

Second, there has been a great boom in fields outside the law.

Economics, philosophy, biology, mathematics, and many other fields have

made great advances over the last several decades.128 Economics has

become more rigorous and branched out to consider nonmarket as well as

market behavior.129 Moral philosophy has gained a revived following and

shed significant light on important legal matters such as capital punishment

and abortion.130 Mathematics and the sciences have made enormous strides

as well, making the Langdellian science of law look dated by

comparison.131 Seeing these advances, legal scholars responded by gleaningthe new insights offered by outside disciplines and adopting more rigorous

empirical approaches to the study of law.

Third, the decline of common law in relation to statutory and

regulatory law has reduced the importance of traditional legal

scholarship.132 Traditional legal scholarship focuses on extracting doctrine

from cases, systematizing it, and fitting it together with other doctrines. 133

This type of scholarship is less useful when confronted with issues of

statutory interpretation. Often there will be no clearly right answer from an

interpretive context and judges will be forced to make what are essentially

policy decisions.134 In such situations the insights from fields outside of the

law are critical. As the common law continues to be marginalized in favor

of statutory law, the importance of an interdisciplinary understanding

becomes ever more important.

Concurrently with these factors, confidence has fallen in the ability of

legal scholarship to right major problems of the legal system.135

Althoughautonomous legal scholarship produced some early successes in

the Federal Rules of Civil Procedure and the Administrative Procedure Act,

127 See id.128 Id. at 76768, 77273.129 Id. at 767.130 Id. at 768.131 See id. at 77273.132

Id. at 773.133 Id.134 Cf. id. at 77477 (discussing the opinion in Leo Sheep Co. v. United440 U.S. 668 (1979)

where the court, after much analysis of the statutory text ultimately made what was an essentially

policy based decision).135 Id. at 769.

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it has produced disappointing results in a host of other areas,136

demonstrating a need for the insights that can be offered by outside

disciplines.137 Lessons learned from these failures, combined with the

factors above, have produced a wholesale retreat from the Langdellianscience of law toward a more holistic approach to legal scholarship that has

sought to incorporate knowledge from a broad range of different fields.

Thus, legal scholarship has completed a full swing. The initial pull away

from various natural law approaches to legal scholarship in favor of an

autonomous legal science has been reversed as legal scholars again look to

extrinsic sources of knowledge.138

The growth of this interdisciplinary movement in legal scholarship has

served as a major source of the divide between academia and legal practice.

The pendulum of the law has swung a long way from the predominantly

positivist position of two generations ago.139 It has swung too far, in fact.

The interdisciplinary movement strives toward the noble goal of a higher

understanding of the law through an integration of various fields ofknowledge, but, ironically, in many cases the movement has actually led to

further isolation of the legal academy.140 With so many new

interdisciplinary legal terms and texts gaining legitimacy, whole quarters of

legal study have become ever more intricate miniatures, increasingly

opaque even to well-meaning fellow jurists.141 All of this has resulted in

136 Judge Posner enumerates a number of such failed lawyer-created proposals: All sorts of

reforms adopted in this period, reforms engineered by lawyers, appear to have miscarried. These

include a bankruptcy code that has led to a large and unanticipated increase in the number of

bankruptcy filings; a runaway expansion of tort liability that may be destroying the institution of

liability insurance, coupled with the disappointing results (and lethal side-effects) of the no-fault

automobile compensation movement; a no-fault divorce movement that has boomeranged againstthe women's movement that urged its adoption; the creation of a system of environmental

regulation at once incredibly complex and either perverse or ineffective in much of its operation;

the destruction of certainty in the field of conflict-of-laws (especially in accident cases) as a result

of the replacement of mechanical rules (such as the rule of lex loci delicti) by interest analysis'

and its many variants; the rather hapless blundering of the federal courts into immensely

contentious, analytically insoluble ethical-political questions such as capital punishment, prison

conditions (how comfortable must they be?), sex and the family, and political patronage; the

accidental growth of the class-action lawsuit, through a seemingly minor amendment to rule 23 of

the Federal Rules of Civil Procedure, into what many observers believe is an engine for coercing

the settlement of cases that have no real merit yet expose defendants to astronomical potential

liabilities; the flood of one-way attorney's- fee-shifting statutes, which overencourage litigation;

and the creation of an intricate code of federal criminal procedure (requiring for example a three-

volume treatise on search and seizure) in the name of the Constitution, and the wholesale

imposition of the code on state criminal proceedings through the doctrine of incorporation.

Id. at 76970.137 Id. at 769.138 See Witte, supra note 115, at 44344.139 Witte, supra note 115, at 444.140 Id.141 Id.

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the isolation of the legal academy from other disciplines and irrelevance of

its scholarship to the bench and bar.142

With this brief history of the division between academia and practice

now laid out, the important question for the purposes of this section is inwhat way the academic tenure system, first embodied in the 1940

Statement, contributed to the split. It seems unlikely that tenure served as a

cause of the split. Those holding professorships within the law schools who

prior to the 1940 Statement had engaged in primarily doctrinal scholarship

presumably continued to do so even after the Statement was adopted.

Tenure could have no effect so long as that generation of scholars

continued in their posts and conditions outside the university remained

relatively static.

Conditions in the 1960s, however, combined to create the perfect

storm within the academy. As the generation of doctrinally-oriented

professors who held posts at the time the momentous 1940 Statement was

adopted began to retire and be replaced by a younger generation, a boom infields such as economics and moral philosophy and changes in the

university political climate naturally led this new generation to take

advantage of the insights offered by outside disciplines by applying them to

their own research. The ensuing rise of various interdisciplinary approaches

has made astounding contributions to legal scholarship, but the pendulum

has swung too far. As scholars have increasingly adopted methods from

fields outside the law, traditional legal scholarship has begun to suffer.

With tenure preventing any adequate external check on its teaching and

research agenda, this generation of legal scholars has been drawn too far

afield of its historic doctrinally-oriented function, becoming instead a sort

of microcosm of the university as a whole. Tenure is not properly speaking

a cause of this change, but its existence has permitted the shift to continue

unchecked.

IV.WHERE TO FROM HERE

With tenures role in the shift properly in perspective it becomes quite

apparent that any attempt by law school administrators to nudge the

academy back into a proper balance between theory and practice must

address in some way the issue of tenure. The 1940 Statement has opened a

sort of Pandoras Box within the legal academy. Once faculties have been

filled with scholars who overemphasize theory, there is little that can be

done to reverse the trend; the system perpetuates itself as facultiesdominated by theoretical scholars admit mostly like-minded individuals to

join their ranks, and administrators lack authority to direct scholarship.

142 Seeid. at 445.

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A. The Costs and Benefits of Academic Tenure

Seeing the critical role that academic tenure has played in the

overzealous adoption of theoretical scholarship and the abandonment ofdoctrinal scholarship, it may be tempting to make a hasty call for a

repudiation of the tenure system. The very concerns that resulted in the

adoption of the tenure system in the first instance, however, counsel against

such a rash move. The detrimental effects of tenure, one of which is the

insulation of the academy from outside pressures that would otherwise

correct its overemphasis on theory, must be balanced against its historic

and current benefits.

The traditional justification (and historical origin)143 of academic

tenure is that it is a guarantor of academic freedom. Such freedom is central

to the pursuit of scholarship. It ensures that research is conducted without

the undue influence of university administrators, legislators, or the

community.144Academic freedom is not simply a kind of bonus enjoyed by workers

within the system, a philosophical luxury universities could function just

as effectively, and much more efficiently without. It is the key

legitimating concept of the entire enterprise. Virtually every practice of

allowing departments to hire and fire their own members to the practice

of not allowing the football coach to influence the quarterbacks grade in

math class-derives from it.145

It may be tempting to view true threats to academic freedom as a thing

of the past. It has been, after all, quite some time since the fateful dismissal

of Professor Ross from his position at Stanford because of his populist

economic views.146 Any such trust in the goodwill and tolerance of modern

society, however, would be misplaced. Even in the present day, tenureregularly stands as a bulwark against political and social influences both

within and without the university.147 In one particularly well known

incident, remarks made by Professor Ward Churchill, formerly of the

University of Colorado,148 regarding the victims of the New York City

terrorist attacks of September 11th, resulted in widespread calls for his

termination.149 Without the protection of tenure it is likely that Churchill

would have been dismissed solely for his political views and the academy

143 See supra text accompanying notes 77103144 Fishman, supra note 66, at 176.145 Id. at 177 (quoting Louis Menand of the City University of New York).146

See supra text accompanying notes 7782.147 See Fishman, supra note 66, at 180.148 Professor Churchill was later dismissed from the University in 2007 after years of

controversy for academic misconduct. See Dan Frosch, Colorado Regents Vote to Fire

Controversial Professor, N.Y. TIMES, Jul. 7, 2007.149 See T.R. Reid, Professor Under Fire for 9/11 Comments, WASH.POST, Feb. 5, 2005, at C1.

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would have lost the opportunity to properly vet his theories. In another

prominent example that may hit closer to home within the legal

community, Professor John Yoo of Berkley faced calls for his resignation

or dismissal following the leaking of a memorandum150

that he hadproduced while working for the Office of Legal Counsel.151 Tenure in this

instance protected Yoo and his presentation of a defensible yet highly

unpopular view. These examples show that tenure still serves a critical

function in preserving academic freedom,152 particularly in the face of

external crises such as we face today.153

A secondary justification of tenure is its economic efficiency.

Colleges and universities by and large do not have the financial resources

to compete with private industry for the top talent.154 As salaries in the

private sector have risen dramatically in the past several decades, salaries

among professors have remained relatively static.155 One way that colleges

and universities are able to draw in talent despite this inequality in salary is

by offering tenure.156 If tenure were to be eliminated, careers in academiawould look much less attractive to those talented individuals contemplating

150 See John Yoo, U.S. Dept. of Justice Memo from Deputy Assistant Attorney General John

Yoo To Alberto R. Gonzales, White House Counsel: Memo from Deputy Assistant AttorneyGeneral John Yoo to the White House Counsel on interrogation methods that do not violate

prohibitions against torture, Aug. 1, 2002,

http://news.findlaw.com/hdocs/docs/doj/bybee80102ltr.html (last visited Apr. 23, 2008).151 See Peter Slevin, Scholar Stands by Post-9/11 Writings On Torture, Domestic

Eavesdropping: Former Justice Official Says He Was Interpreting Law, Not Making Policy,

WASH. POST, Dec. 26, 2005, at A3. For commentary on the legal defensibility of Yoos claimsas well as a defense of Yoos academic freedom, see Juan Non-Volokh, Should Professor Yoo

Recant or Resign? (Final Thoughts), June 13, 2004,http://volokh.com/archives/archive_2004_06_13-2004_06_19.shtml (last visited Apr. 23, 2008).152 In addition to simply preserving the freedom of an individual faculty member to promote

his views, tenure tends to benefit society as a whole. The job security that tenure provides permits

scholars to devote their time both to the controversial and to matters with a high likelihood offailure. Scholars feeling the pressure to ensure their continued employment are unlikely to pursue

areas in which there is a possibility of great benefit to society but also a high probability of

failure. Fishman, supra note 66, at 18283.153 See Fishman, supra note 66, at 178 ([E]xternal threats to academic freedom are episodic,

usually concurrent with external crises in society.).154 Id. at 181.155 Id.156 The great value of tenure can be seen clearly in the events that followed Georgetown

Universitys transfer of the hospital and clinical division of its Medical Center to a privatecorporation. Facing a severe financial crisis, Georgetown Medical School decided to transfer its

hospital and clinical divisions to Medstar Health, Inc. in an effort to cut costs. Under thisarrangement Medstar no longer needed to employ 330 faculty members who served in primarilyclinical roles. Those in tenured positions were advised that they could pursue non-tenured

employment with Medstar and were offered a $750,000 lump sum severance buy-out in

recognition of their tenure. Katz v. Georgetown University, No. 00-CV-2412, 2000 U.S. Dist.WL 33539394, at *2 (D.D.C. Nov. 6, 2000) affd246 F.3d 685 (D.C. Cir. 2001).

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careers in higher education.157

B. The Balancing Act: Advancement that Preserves Freedom

Despite its shortcomings, tenure continues to play an important role in

preserving academic freedom and attracting highly qualified individuals to

the teaching profession. Yet, as we have seen, any solution to the divide

between the legal academy and legal practice must squarely confront the

issue of tenure. Changes to legal education, therefore, must be carefully

measured to address the rift that tenure has permitted to develop while in

some way preserving tenure as a guarantor of academic freedom and

genuine scholarship. Encouragingly, a few such changes have already

begun.

The rise of clinical legal education beginning in the 1960s and 1970s

has done much to ensure that law students continue to be adequately

prepared for legal practice despite the drift (beginning during the sameperiod) away from traditional doctrinal scholarship.158 Clinical education

was initially conceived as an outlet for the social concerns of the student

bodya way for students to reach out to underrepresented groups and

transform society while also gaining the skills and experiences necessary

for lifelong careers as legal activists.159 The movement caught on quickly

and by the early 1970s almost half of all law schools in the country offered

some type of clinical program.160

Since the time of their initial rise to prominence, clinical programs

have drifted somewhat from their roots as an outlet of social activism

toward a more integrated position within the law school curriculum. This

shift occurred in response to the more pragmatic student bodies of recent

years who have found the programs most useful as tools for skills training

rather than activism and also in response to calls for law school reform in

light of a failure to adequately train students for practice.161 Most

significant in spurring the adoption of clinical programs as a skills training

157 Fishman, supra note 66, at 18182.158 Jon C. Dubin, Clinical Design for Social Justice Imperatives, 51 SMU L. REV. 1461, 1465

(1998).159 Id.; see also Margaret Martin Barry, Jon C. Dubin & Peter A. Joy, Clinical Education for

this Millenium: The Third Wave, 7CLINICAL L.REV. 1, 12 (2000) (The earliest forms of clinical

legal education embraced the dual goals of hands-on training in lawyering skills and provision of

access to justice for traditionally unrepresented clients.).160

Dubin, supra note 158, at 1466.161 See, e.g., Edwards, supra note 1; Johnson, supra note 1. See also Dubin, supra note 158, at

1467 n.34 (Chief Justice Burger was a particularly vocal critic of law schools' failure to prepare

law graduates for the practice of law. Justice Burger believed that [t]he modern law school [was]

not fulfilling its basic duty to provide society with people-oriented counselors and advocates to

meet the expanding needs of our changing world.).

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device was the 1992 Report of the American Bar Association, Task Force

on Law Schools and the Profession: Narrowing the Gap, chaired by ABA

President Robert MacCrate.162 This report chastised law schools for

ignoring practical training and called for them to find ways to betterprepare their students for practice.163 In response to this report the ABA

House of Delegates amended its accreditation standards to require that all

schools maintain an educational program that adequately prepares students

to meaningfully participate in the legal profession and, more specifically,

that schools offer live-client or real-life practice experiences through clinics

or externships.164 American law schools have responded to the calls for

reform and the heightened accreditation standards of the ABA by

embracing clinical programs as a valuable educational tool.

The widespread incorporation of clinical programs into law school

curricula has gone a long way in tempering the effects that the increasingly

theoretical bent within legal academia has upon students. In the context of

this discussion, it is important to note one of the reasons that clinicalprograms have been successful in counterbalancing the current theoretical

overemphasis in more traditional course offerings. Law school

administrators hold the power to establish and develop clinical programs

independent of the often theoretically-minded tenured faculty. Although

administrators may have only a limited ability to affect the content of

existing courses, they have greater authority in curriculum modification

and development. No tenured toes are trampled when clinical courses are

added, particularly in accordance with an ABA mandate.

Curriculum modification, such as the introduction and expansion of

clinical programs, seems to be the most promising avenue for immediate

change within American law schools. Law schools are notoriously resistant

to change, and this resistance is due, at least in part, to the modern system

of academic tenure. Curriculum changes are one area, however, where

administrators have been able to make some headway. Law schools have,

for instance, now universally adopted legal research and writing courses to

teach students certain skills critical for practice.165 The first precursors to

the modern research and writing courses were the bibliographic courses

that were added to law school curricula following the publication ofBrief

Making by Roger Cooley in 1906.166 Though initially having a somewhat

broader focus including both legal research and analysis, these courses

162 Dubin, supra note 158, at 146768.163

Id.164 Id.165 See Lucia Ann Silecchia,Legal Skills Training in the First Year of Law School: Research?

Writing? Analysis? Or More?, 100 DICK. L. REV. 245, 24849 (1996).166 Marjorie Dick Rombauer, First-Year Legal Research and Writing: Then and Now, 25 J.

LEGAL EDUC. 538, 539 (1973).

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eventually came to deal primarily with the use of law books in legal

research.167 No writing component was added to law school curricula until

the post-World-War-War-II period.168 In 1947 legal writing was formally

recognized as a distinct category by a listing in the Directory of Teachers in Member Schools, published by the Association of American Law

Schools.169

Initially, these courses were seen as a sort of remedial program

designed to correct writing deficiencies of incoming students. Law schools

were attracting a rising number of deficient students because of a great

push for increasing numbers of students to pursue advanced education

combined with an educational fad of the 1930s that had deemphasized the

importance of the study of English grammar in public school curricula. 170

[L]aw faculties grudgingly saw the necessity to become teachers of

English grammar and composition.171 Since that time, however, the focus

of research and writing programs has grown to encompass practical

instruction in legal reasoning and analysis rather than mere remedialassistance.

LRW [has become] a course about legal analysishow to critically

analyze legal problems and, most importantly, how to convey the

analysis to others in writing, as lawyers are called upon to do in their

work. Rather than merely correcting papers after they were written,

LRW professors [now] intervene in the writing process, giving

substantial attention to individual students' drafts through critiques and

conferences on work in progress. We now recognize that we are

teaching students to write, not merely correcting the writing mistakes

they have already made.172

The evolution of research and writing programs to include practical

instruction in legal analysis permits such courses to, alongside clinicalcourses, counterbalance the trend toward an overemphasis on theory in

more traditional courses, ensuring that students continue to be adequately

prepared for practice.

What is most important to note in the context of this discussion is the

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