growing trend of law profs as free agents may put the quality of your education in jeopardy.

[brian lauter]

In July, NYU Law Professor Clayton P. Gillette published an article entitled “Law School Faculty as Free Agents,” available in its entirety here. As is apparent from the title, the article discusses the increasing trend toward a free agent model of law school hiring.

When I think of free agency, I immediately think baseball. Apparently, so does Professor Gillette.  He argues that, in many ways, free agency among professors differs from free agency in sports, to the detriment of legal education.

Baseball players are paid almost exclusively for high visibility tasks – all we have to do is turn on Sportscenter to see if the Giants are getting their money’s worth out of Barry Zito. Law professors have both high-visibility and low-visibility duties. Increased free agency is likely to emphasize their high-visibility duties (scholarship) while deemphasizing their low-visibility duties (teaching).

Professor Gillette also notes the traditional lack of emphasis on institutional service – e.g. organizing conferences and serving on committees – in law school hiring. He argues that, because the benefits of teaching and institutional service are not conferred on those who play a role in the hiring process (faculty), but instead on those who don’t (students), teaching abilities and institutional service will not be valued when hiring free agents, decreasing professors’ incentives to improve or excel in these areas.

Gillette’s emphasis on the roles played in the hiring process begs the question: If students did make hiring decisions, would the result be any different?

Although the benefits of institutional service and teaching ability are conferred directly on students, students don’t always seem to value these variables as much as one might think. 

Every year, law students across the nation get worked up when the U.S. News rankings come out, fretting over their schools’ rankings and lobbying their law school administrations to make educationally meaningless changes that will improve their rankings. In addition, I’ve never heard students refer to the quality of a professor’s institutional service and, although students are acutely aware of the teaching abilities of most of their professors, I’m not sure that they would base their hiring decisions on this factor, at the expense of a possible upgrade in academic prestige. I think the bottom line is that, on average, law students care as much about reputation and prestige as law faculty, and I don’t think the results of free agency would be much different if the students were in charge. 

However, I'm concerned. The free agency debate also serves to further the divide between the emphasis on practical versus theoretical education at law schools. Professor Gillette proposes that free agency will lead law schools to “hire a coterie of scholars to provide reputational gloss...while relying increasingly on adjuncts and visitors from other institutions to provide classroom instruction.” My worry is that this coterie of scholars will continue to teach the majority of law school classes, increasing law schools’ emphasis on theoretical knowledge and decreasing the amount of practical knowledge imparted to students. 

Gillette suggests that this problem may be solved as schools that care about scholarship and schools that don’t sort themselves into theoretical schools and practical schools by hiring or neglecting to hire free agent scholars. This too underestimates the value law students place on reputation and ranking. Law firms, Biglaw especially, will continue to consider school reputation in their hiring decisions, so law students will continue to care about rankings. As long as law students continue to care about rankings, I don’t see how any schools can refuse to participate in the free agent market. And as free agency grabs a foothold in the legal education market, it will continue to support a trend of emphasis on theoretical education in law school, a trend which I believe does the legal profession a disservice.

At any rate, I recommend the article.  As you can probably tell, Professor Gillette is no academic slouch, but if I ever hear that he’s making more than the entire faculty of another law school, I don’t think I’ll ever recover.