Academic Tenure and The Divide Between Legal Academia and Legal Practice

DICKINSON 2/10/09 1:02 AM
ACADEMIC TENURE AND THE DIVIDE

BETWEEN 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 ....................................................................................... 318

II. THE DISCREPANCY BETWEEN LEGAL EDUCATION AND PRACTICE ..... 320
A. The Historical Emergence and Role of the University-
Affiliated Law School ............................................................. 320
B. The Move of Law Schools from their Practical Roots .............. 323
C. Modern Manifestations and Sources of the Divide ................... 324
1. Faculty Research Agenda.................................................... 324
2. Ineffective Pedagogy........................................................... 326
3. Curricular Drift.................................................................... 327
III. THE HISTORY AND EFFECTS OF ACADEMIC TENURE .......................... 328
A. Tenure in American Universities............................................... 329
B. The Relationship Between Tenure and the Divide Between
Legal Education and Legal Practice........................................ 335
IV. WHERE TO FROM HERE ....................................................................... 340
A. The Costs and Benefits of Academic Tenure ............................ 341
B. 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 nation’s 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.
318
DICKINSON.DOC 2/10/09 1:02 AM
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 view
of 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 that
connection 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
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 of Lehrfreiheit 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 nation’s 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 nation’s 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, The
Growing 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).
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 and
systematized 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
Jackson’s 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 See id. 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 United
States, 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 728–30.
12 Id. at 728.
associations promoted the apprenticeship model and in so doing invoked

the wrath of Jackson’s 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 law—or lack
thereof—was 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 a
Litchfield 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 728–29.

14 Id. at 729–30.
15 Id. at 730.
16 Id. at 729–31.
17 Id.
18 Trail & Underwood, supra note 2, at 207–08; see Gee & Jackson, supra note 4, at 730–31.
19 Trail & Underwood, supra note 2, at 208 n.32.
20 Id.
21 See Gee & Jackson, supra note 4, at 731.
22 Id.
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 of
the 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 must
not 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, including
moot 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 731–32.

24 Trail & Underwood, supra note 2, at 208–09 (footnote omitted).
25 Id. at 209.
26 Gee & Jackson, supra note 4, at 757.
27 Trail & Underwood, supra note 2, at 209–10.
28 Id.
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 have
become 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 See id. at 210; see Edwards, supra note 1, at 34–36; see Johnson, supra note 1, at 1231–33.
30 See Trail & Underwood, supra note 2, at 213–14 (“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 elected
instead 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 1231–33; Trail & Underwood,
supra note 2, at 210–11;
35 Edwards, supra note 1, at 34.
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 real
practical 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 nation’s 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 and
perpetuated 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 one’s 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 2005–2006 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 35–36.
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 1231–32 (discussing the frustration of his former students over their unpreparedness for
legal practice).
39 Trail & Underwood, supra note 2, at 211.
40 Lawrence, Solum, Legal Theory Blog, Law School Entry Level Hiring Report (2005–06
Hiring Season), http://lsolum.blogspot.com/archives/2006_05_01_
lsolum_archive.html#114129865560132000 (last visited Apr. 10, 2008).
scholarship has changed in focus and audience. Rather than doctrinal

scholarship directed to lawyers and judges, today’s legal scholarship is
increasingly theoretical and directed to other academics.41
It seems likely that, absent significant changes in the structure of legal
education, 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,
today’s 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.

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 had
Master's degrees.”).
44 Trail & Underwood, supra note 2, at 211–12.
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.”).
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 practical
skills 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 and
political theory, is ultimately going to test them solely on doctrine. So they
ignore all of the professor’s ‘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 today’s law schools, however,
electives more frequently focus on interdisciplinary areas, often with little
46 See supra text accompanying notes 18–23.

47 Edwards, supra note 1, at 60.
49 Id. at 215.
50 Id.
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 insights
offered 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.D’s 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 See id.
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.”).
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 in
law 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 24–28, 39–41.
56 See Gee & Jackson, supra note 4, at 731–32.
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 the
trend 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 this
section 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 university’s
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 of Lehrfreiheit,
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: Its
Historical 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.
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 teaching
duties. 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 specialized
departments.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, 1269–70 (1988).
63 Id; see also ROBERT M. MACIVER, ACADEMIC FREEDOM IN OUR TIME 188 (1955) where
Professor MacIver explains the cultural underpinnings of Lehrfreiheit. 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 337–38.
66 James J. Fishman, Tenure and its Discontents: The Word Form of Employment
Relationship Save all of the Others, 21 PACE L. REV. 159, 164–65 (2000).
67 Id.
68 Id.
69 Brooks, supra note 58, at 338.
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 academic
thought.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 in
the 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).
74 See Brooks, supra note 58, at 337–38.
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
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 had
founded and funded the university.80 Mrs. Stanford learned of Ross’s views
and demanded that he be dismissed to avoid disgracing the university’s
reputation.81 David Starr Jordan, the president of the university, forced to
choose between protecting the professor and alienating the university’s
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 Ross’s dismissal, Professor
William 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 138–39; Fishman, supra note 66, at 165–66.
81 Metzger, supra note 79, at 138.
82 Id. at 138–39.
83 Id. at 139; see also Fishman, supra note 66, at 165–66.
87 Id.
88 Id. at 137.
89 Id. at 135.
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 AAUP’s 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 166–67.

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.
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.
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 all
dismissals, 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 Statement’s
principles. 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

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 Higher
Education, 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 defendant’s 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 Faculty
Tenure: A Report and Recommendations by the Commission on Academic Tenure in Higher
Education, supra note 79, at 252.
105 Id.
106 Id.
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 academic
economy of the period. The Great Depression led to a contraction of
academic employment in the 1930’s. 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 United
States.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 See id.
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. POL’Y 545 (1991) (attacking the traditional justifications for academic
tenure: 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.
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 tenure’s role in the shift of legal academia away from
practice. 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.
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 in
the 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 the
early 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 441–42.
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 times—of 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: 1967–1987, 100
HARV. L. REV. 761, 765–67 (1987).
126 Id. at 766–67.
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 arrive
at 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 gleaning
the 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 767–68, 772–73.
129 Id. at 767.
130 Id. at 768.
131 See id. at 772–73.
132 Id. at 773.
133 Id.
134 Cf. id. at 774–77 (discussing the opinion in Leo Sheep Co. v. United 440 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.
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 Langdellian
science 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 of
knowledge, 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 against
the 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 769–70.
137 Id. at 769.
138 See Witte, supra note 115, at 443–44.
139 Witte, supra note 115, at 444.
140 Id.
141 Id.
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 in
what 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 in
fields 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 tenure’s 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 Pandora’s 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 faculties
dominated by theoretical scholars admit mostly like-minded individuals to
join their ranks, and administrators lack authority to direct scholarship.
142 See id. at 445.

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 of
doctrinal 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.144
Academic 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 quarterback’s 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, tenure
regularly 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 77–103

145 Id. at 177 (quoting Louis Menand of the City University of New York).
146 See supra text accompanying notes 77–82.
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.
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 had
produced 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 academia
would 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 Attorney
General 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 Yoo’s claims
as well as a defense of Yoo’s 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 of
failure. 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 182–83.
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
University’s transfer of the hospital and clinical division of its Medical Center to a private
corporation. 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 this
arrangement Medstar no longer needed to employ 330 faculty members who served in primarily
clinical 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) aff’d 246 F.3d 685 (D.C. Cir. 2001).
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 same
period) away from traditional doctrinal scholarship.158 Clinical education
was initially conceived as an outlet for the social concerns of the student
body—a 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 181–82.

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, 7 CLINICAL 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.’”).
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 better
prepare 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 clinical
programs 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 of Brief
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 1467–68.

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, 248–49 (1996).
166 Marjorie Dick Rombauer, First-Year Legal Research and Writing: Then and Now, 25 J.
LEGAL EDUC. 538, 539 (1973).
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 remedial
assistance.
LRW [has become] a course about legal analysis—how 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 clinical
courses, 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
way in which the success of research and writing courses addresses the
problem of academic tenure and the resistance to change in legal education.
Administrators cannot dictate the way in which faculty members conduct
their courses, but they have greater power in designing new curricular
167 See id. at 539–540.

168 Id. at 539.
169 Id. at 540.
170 Id.
171 Id.
172 Ellie Margolis & Susan L. DeJarnatt, Moving Beyond Product to Process: Building a
Better LRW Program, 46 SANTA CLARA L. REV. 93, 99 (2005).
initiatives with a focus on practical legal skills. Legal faculties were at first
quite resistant to the new legal research and writing initiatives of the 1950s.
Established professors wanted nothing to do with such newfangled course
offerings and simply pushed the responsibility off onto the overworked,
young, up-and-coming professors in the institution, preferring to continue
uninterrupted in their more “worthwhile” instruction.173 The situation has
been remedied by the creation of what is essentially a separate class of
instructors devoted specifically to the teaching of legal research and
writing. As of 2003, out of 190 law schools, seventy percent employed full-
time legal writing professors, eighteen percent employed adjuncts to teach
legal research and writing, and five percent relied on student teachers.174
Only seven percent used doctrinal faculty for their research and writing
instruction.175 Administrators have been able to add a new course that trains
students in practical legal reasoning and bring in an independent faculty
motivated and qualified to teach those particular skills.
Curriculum modification has the potential to become a successful
avenue of change in other situations as well. Seeking to align classroom
experience with 21st century practice, reformers have called for a variety of
additions to law school curricula.176 The first year curriculum in particular
seems aptly suited for change, as it is in the first year that students are most
in need of a practical doctrinal groundwork. Harvard’s recent move to
require first year students to take a course in international law and a course
in legislation and regulation177 reflects the realization that a changing world
requires a changing set of practical skills.178 Such courses, made eminently
173 Albert P. Blaustein, The Teaching of Legal Writing and Research, Fifty-Second Annual
Meeting, American Association of Law Librarians, 52 LAW LIBR. J. 350, 358–59 (1959) (“What
happens eventually is that the faculty experts get together at faculty meetings and decide upon a
person to assign as instructor in research. They assign the chore to some old professor or young
junior associate. Why don’t they want to do it personally? Because they won’t soil their hands on
such an unimportant subject. So it falls to the lot of a minor instructor, or the librarian is asked to
take on an additional duty.”); Charles D. Kelso, Roundtable on Curricular Reform, 20 J. LEGAL
EDUC. 387, 412 (1968) (“The teaching of legal research is one of those areas that we all talk
about—and do least about. Few men really like to teach it. Those who do it well—such as Harry
Kalven at Chicago—readily move on to more ‘worthwhile’ things—such as teaching Torts.”).
174 Melissa H. Weresh, Form and Substance: Standards for Promotion and Retention of Legal
Writing Faculty on Clinical Tenure Track, 37 GOLDEN GATE U. L. REV. 281, 286–87 (2007);
see also Susan P. Liemer & Jan M. Levin, Legal Research and Writing: What Schools are Doing,
and Who is Doing the Teaching (Three Years Later), 9 SCRIBES J. LEGAL WRITING 113, 120
(2003).
175 Weresh, supra note 178, at 287.
176 See Nicholas S. Zeppos, 2007 Symposium on the Future of Legal Education, 60 VAND. L.
REV. 325 (2007) (outlining a number of different proposals for change put forward at the
symposium).
177 Jonathan D. Glater, Harvard Law Decides to Steep Students in 21st Century Issues, N.Y.
TIMES, Oct. 7, 2006, at A10.
178 See Susan Sturm & Lani Guinier, The Law School Matrix: Reforming Legal Education in a
Culture of Competition and Conformity, 60 VAND. L. REV. 515, 517–19 (2007).
practical (indeed necessary) by the surrounding legal climate, should serve

to better prepare graduating students for the realities they will face in legal
practice. It remains, of course, to be seen how successful recent curricular
changes will be and whether other schools will follow the lead of Harvard
and others179 in curriculum modification, particularly in the first year, but
such initiatives, even if imperfect, certainly seem to be headed in the right
direction.
Curriculum modification, though, however promising, cannot be a
complete solution. First, students need not only exposure to practical skills
and topics through additions to the law school curriculum but also a strong
foundation in the traditional core doctrinal classes. The key is neither to
eliminate theory-oriented courses nor to merely supplement existing
courses with more practical ones. Theory has an important part in the law
school curriculum. The goal is to structure courses in such a way that
students are first grounded in the core doctrine of the law and then
gradually introduced to the background and supplementary insights offered
in more theoretical courses. This can best be accomplished by emphasizing
practical doctrine in first year courses and then advancing to more
theoretical issues in the second and third year. Realization of this goal
requires a faculty dedicated to doctrinal first year instruction and cannot be
achieved through curricular changes alone.
Second, students are not the only ones that suffer from an
overemphasis of theory by legal scholars. Legal practitioners and judges
have traditionally relied on legal academic scholarship as an important
source of analysis in complicated doctrinal issues. An emphasis on theory
to the point of excluding traditional doctrinal scholarship would deprive
them of the valuable insights of the academic community.
How, though, can scholarship be nudged in a more practical direction?
Further, how can we ensure that first year students are properly grounded in
basic doctrine? These are no simple questions, and, as we have seen, any
answers must squarely confront the issue of tenure. In recent years a
number of modifications have been proposed, each with the potential to
effect positive change in legal academia. By modifying the tenure and
hiring processes it may be possible for administrators to gain some control
over faculties who, at this point, are securely insulated from administrative
pressure. Of course, because there remains a very real concern of
preserving academic freedom, any proposal must carefully balance the
competing goals of permitting a necessary degree of administrative
influence and also preserving a sufficient degree of academic freedom.
The most popular alternative to the traditional tenure system is the
179 Id.
renewable contract approach.180 Under this approach the faculty member is

initially appointed for a period of one to three years, at the end of which he
or she may be offered a contract renewal for a similar period of time
depending on his or her performance during the previous contract period.181
These initial short-term contracts serve as a sort of probationary period
during which the individual’s performance and fit with the university may
be evaluated. The term of reappointment is eventually extended to seven or
even ten years mimicking a sort of tenure as the faculty member settles into
a more secure position.182
This system has the benefit of providing an incentive to good
performance and permitting institutional flexibility through elimination of
those individuals whose performance does not meet expectations.183 Such a
system would provide an incentive for high performance among the faculty
while also providing some of the academic freedom found under a tenure
system. For these reasons, the renewable contract system has
gained some foothold at various institutions of higher education across the
country. The contract approach has been adopted by at least forty
institutions—a large number of community colleges and a few four-year
institutions including Bennington, Bradford, and Hampshire Colleges.184
Ultimately, however, the negative consequences of the contract approach
seem to outweigh its benefits, particularly in the context of the problem at
hand. Most obviously, a long term contract fails to provide a comparable
degree of academic freedom to that of traditional tenure. Although long
term contracts may provide insulation from day to day changes in political
climate, a professor who takes a truly radical and fundamentally unpopular
view will have little hope of having his contract renewed at the end of his
term. Furthermore, if renewal decisions are made by the faculty, the system
may not do enough to remedy the concerns of students and practitioners
who desire practical scholarship and instruction. A faculty already
dominated by those who value theoretical work and instruction above more
traditional scholarship is highly unlikely to refuse contract renewal based
on such concerns.
A second proposed modification to the traditional tenure system is the
addition of a post-tenure review process. The term post-tenure review is a
broad term used to describe a wide range of review systems.185 In general,

181 Id.
182 Id.
183 Id.
184 Robin Wilson, Contracts Replace the Tenure Track for a Growing Number of Professors,
CHRON. OF HIGHER EDUC., June 12, 1998, at A12.
185 See Fishman, supra note 66, at 190–91 (“One of the more consistent refrains from the
administrative side of the debate has been for “post-tenure review,” a phrase that has the
though, post tenure review “is a system of period evaluation that goes
beyond traditional forms of monitoring utilized in most colleges and
universities.”186 It may include annual reports for determining salary and
promotion and formalized reviews for awarding grants and sabbaticals.187
Reviews are usually conducted by either the dean or a faculty committee,
and are intended to determine “whether the faculty member is engaged in
professionally and institutionally worthwhile projects beyond teaching.”188
The post-tenure review process seems to be a more promising avenue
for change. The post-tenure process is not to be aimed at faculty
accountability, so it lacks the bite of the renewable contract approach in
that faculty members may not be dismissed for poor performance, but it
offers the possibility of a placing some pressure on professors without
endangering academic freedom. Student evaluations, for example, could be
included in a post-review process to help align the interests of students and
their professors. The process could also include a review of faculty
scholarship production that emphasized the importance of doctrinal as well
as theoretical scholarship. Such a review process would, of course, lack the
power to compel, but mere encouragement might be enough in some
instances to initiate positive change.
Ultimately, this is quite a thorny issue. The drastic steps that would be
required to completely align student and practitioner interests with those of
law school faculties (elimination of tenure) would seriously hamper
effective scholarship by curtailing academic freedom. It seems that the best
approach going forward is to continue making what advancements are
possible through experimentation with curriculum modification and various
forms of post-tenure review. These approaches offer paths to significant
improvement that, though far from perfect, seem to offer the most attractive
compromise between faculty accountability and academic freedom.
V. CONCLUSION
The progression of American legal education and scholarship has

taken a long and circuitous path. What began as a fairly informal
apprenticeship system entirely focused on practical legal skills training was
eventually replaced by a system of university-affiliated law schools that
systematized legal doctrine and, under Langdell, developed a theory of law
as science to be explored and discovered through careful examination of
ambiguity and generality of such flexible legal concepts as ‘good faith,’ ‘fiduciary obligation,’ or
‘reasonable expectations.’”).
186 Id. at 191.
187 Id.
188 Ira P. Robbins, Exploring the Concept of Post-tenure Review in Law Schools, 9 STAN. L.
& POL'Y REV. 387, 391 (1998).
judicial reasoning. As the academic climate outside the law schools

gradually shifted and the ancillary fields of philosophy and economics saw
a great boom in the 1950s, legal scholars naturally began to abandon the
view of law as a completely autonomous discipline, instead incorporating
the insights of outside fields into their legal studies in an effort to shed light
on a set of increasingly complex and perplexing problems. The pendulum
of this shift, though noble in its objectives and notable in its achievements,
has swung too far. Legal scholars have begun to emphasize theory to the
detriment of traditional scholarship and in the process have harmed both
students and practitioners.
Academic tenure has done much to protect freedom and encourage
sincere scholarship since its adoption into the university in the first half of
the 20th century. It is not, however, without its flaws. One such flaw is its
insulation of the legal academy from outside pressures that would
otherwise intervene to prevent the overemphasis of theory that now plagues
students and practitioners of the law. Tenure has permitted law school
faculties, justifiably impressed by theoretical insights from other disciplines
to abandon more traditional modes of scholarship and instruction with no
serious consequence. Tenure stands not as a cause but as a promulgator of
the divide between students and practitioners and the legal academy on
which they rely. Any solution to the divide, therefore, must address the
difficult issue of tenure by simultaneously preserving academic freedom
and introducing elements of change into legal scholarship. Promising
movements of change have already begun in the nation’s law schools.
Clinical education programs and legal research and writing courses have
emerged as valuable pedagogical tools, and law school administrators are
beginning to tinker with their school’s curricula in efforts to provide
students with the practical tools required for a meaningful contribution to
the profession. Post-tenure review programs are also emerging as a
potential though inherently limited tool of faculty development. Such
changes have experienced some measure of success because they properly
address the issue of tenure. New professors uninterested in the move
toward theory have been brought in to teach skills-oriented courses, and the
most promising tenure modification proposals have been modest, bringing
some accountability while ensuring continued academic freedom.
Hopefully, moving forward, as law schools increasingly recognize the
problems created by an overemphasis on theory and tenure’s relationship to
those problems, they will be able to craft delicate solutions that preserve
the balance between freedom and accountability producing real change
without sacrificing the freedoms that enable true scholarship.

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ACADEMIC TENURE AND THE DIVIDE

I. INTRODUCTION ....................................................................................... 318

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

Fall 2008 LEGAL ACADEMIA AND LEGAL PRACTICE 319

320 THE DARTMOUTH LAW JOURNAL Vol. VI:3

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

II. THE DISCREPANCY BETWEEN LEGAL EDUCATION AND PRACTICE

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

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

Originally, legal education in this country was based on an

Fall 2008 LEGAL ACADEMIA AND LEGAL PRACTICE 321

the expense of instruction in the theoretical underpinnings supporting the

322 THE DARTMOUTH LAW JOURNAL Vol. VI:3

associations promoted the apprenticeship model and in so doing invoked

13 See id. at 728–29.

Fall 2008 LEGAL ACADEMIA AND LEGAL PRACTICE 323

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

B. The Move of Law Schools from their Practical Roots

Though initially established as a combination of both theoretical and

23 See id. at 731–32.

324 THE DARTMOUTH LAW JOURNAL Vol. VI:3

C. Modern Manifestations and Sources of the Divide

1. Faculty Research Agenda

Fall 2008 LEGAL ACADEMIA AND LEGAL PRACTICE 325

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

326 THE DARTMOUTH LAW JOURNAL Vol. VI:3

scholarship has changed in focus and audience. Rather than doctrinal

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

41 Trail & Underwood, supra note 2, at 211.

Fall 2008 LEGAL ACADEMIA AND LEGAL PRACTICE 327

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

The curricula of modern law schools represent a third area of

46 See supra text accompanying notes 18–23.

328 THE DARTMOUTH LAW JOURNAL Vol. VI:3

direct connection to the law.51 Interdisciplinary approaches can offer

III. THE HISTORY AND EFFECTS OF ACADEMIC TENURE

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

Fall 2008 LEGAL ACADEMIA AND LEGAL PRACTICE 329

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

A. Tenure in American Universities

American universities in the early 19th century were starkly different

330 THE DARTMOUTH LAW JOURNAL Vol. VI:3

Fall 2008 LEGAL ACADEMIA AND LEGAL PRACTICE 331

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

332 THE DARTMOUTH LAW JOURNAL Vol. VI:3

clashed with the prevailing views of the wealthy university administrators,

Education 93, 138 (1973).

Fall 2008 LEGAL ACADEMIA AND LEGAL PRACTICE 333

the formation of general principles regarding tenure and legitimate grounds

90 Fishman, supra note 66, at 166–67.

334 THE DARTMOUTH LAW JOURNAL Vol. VI:3

99 Metzger, supra note 79, at 152.

Fall 2008 LEGAL ACADEMIA AND LEGAL PRACTICE 335

B. The Relationship Between Tenure and the Divide Between Legal

336 THE DARTMOUTH LAW JOURNAL Vol. VI:3

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

Fall 2008 LEGAL ACADEMIA AND LEGAL PRACTICE 337

118 Id. at 441.

338 THE DARTMOUTH LAW JOURNAL Vol. VI:3

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

127 See id.