“[L]aw schools are in the business of delivering legal education services. And no business can succeed in the long run unless it pays close attention to the value it is promising to deliver and consistently holds itself accountable to deliver that value.”
Report and Recommendations, American Bar Association Task Force on the Future of Legal Education 25-26
Law school accountability is one of the most important principles the ABA Task Force discusses. It is a complex topic that deserves careful thought. To start with a topical question, accountability is central to the question whether the ABA should accredit only schools that provide faculty tenure or some rough equivalent.
As a matter of accreditation, the answer is should be “no.” In fact, the issue is mostly a sideshow--terms and conditions of employment will generally be set by universities, which are free to retain tenure even if the ABA does not insist on it--but the issue is related to a more serious one that is harder to address.
First, the sideshow. I have heard only one really good argument for tenure, from Hal Varian: It provides the security to hire people better than you, and thus is related to the potential improvement of a department. That is a good prudential argument for adopting tenure as a matter of sound university management. It is at best obliquely related to the quality of instruction and thus to the degree to which schools prepare their graduates for practice. Safety and status are nice, but they are not essential to good teaching or good scholarship. Indeed, as for teaching there is some reason to believe tenure lessens rather than enhances quality. As to academic freedom, it is not seriously under siege in law schools. Legal scholarship is characterized more by repetition and orthodoxy than by paradigm-shattering insights resisted by powerful but hidebound elites.
The ABA therefore should insist on competent instruction but not presume that only certain terms and conditions of employment can secure competence. I take it as obvious that the NHTSA should not adopt a labor policy on the ground that safe cars can only be made by workers who enjoy particular contract terms; just so with tenure. The ABA appears to be moving in the right direction on that score.
As to accountability, tenure is at least partly against it. In the name of freeing professors to search for and profess the truth, tenure partially severs the relation between job performance and job security. That disjuncture is unobjectionable and even desirable with respect to the choice of topics to study (academic freedom does not guarantee choice of method), but in practice this partial disjuncture extends more generally to other parts of the job.
Unaccountability is perhaps the most noticeable general difference between our lives and the lives our students will lead when they leave us. Lawyers in private practice are generally accountable to clients, markets, and officials. Misjudgments have consequences to a far greater degree than is the case in school. To take just one mundane example, calendaring is vitally important in practice, and penalties for calendaring mistakes can be severe. Deadlines in academe are often (generally?) reminders.
There are limits to this difference. Accountability may be low in some practice areas. Appointed counsel in criminal cases may be too little accountable to impecunious clients who will not be repeat players (at least with the same lawyer) and have little power over a lawyer's reputation. And law professors are not wholly unaccountable (though the primary means of accountability is the review resulting in tenure). And this difference will vary by school and field of practice.
Nevertheless, this difference is general enough to note. Thus a question: Is it possible to teach students the practices and the pragmatic mental framework they will need to survive under conditions of high accountability when a large fraction of the teachers themselves are unaccustomed to such conditions?