ABA does the right thing in keeping tenure standard for law schools

At a weekend meeting the ABA’s Council of the Section of Legal Education and Admissions to the Bar voted (pay wall) to retain tenure as a condition of becoming an ABA accredited law school. In light of an earlier call by a majority of the Council’s members to change that requirement, this is a significant victory for academic freedom and quality at the nation’s most important law schools.

The decision is being justly celebrated, as well, by the American Association of University Professors (AAUP), which helped create the modern interlocking institutions of academic freedom, tenure and shared governance. The AAUP commented on the proposed cutback to tenure and helped law faculty weigh in in defense of tenure.

While some law school critics argue that requirements like tenure are a barrier to affordable legal education, in fact, it is tenure that insures that law students get what they pay, sometimes dearly, for: quality faculty who must demonstrate to their peers over several years their ability to teach, engage in relevant scholarly research and give back to their universities and surrounding communities through various forms of service. In several states, of course, California included, it is possible for students to pick non-ABA law schools and still sit for the bar, thus offering lower cost alternatives.

It is an important sign as well that the ABA leadership listened to the many faculty from law school academia who spoke up in defense of tenure. A culture gap has long existed between practicing lawyers, who dominate the ABA, and the legal academy. Hopefully with this battle behind us, new constructive efforts to bridge that gap can be made. Our best and best known legal scholars should make a point of being available on a regular basis to the bar for discussion of their work.

Legal academics can listen and learn from the practicing bar as well. In one of my fields, business law, it is almost not possible to tackle complex research problems without being close to the experience of the practicing bar but no doubt even there we could do a better job.

State bars, together with law school deans, could take the lead in developing such relationships. It can potentially benefit all constituencies that make up the broader legal community. As an example, I recently wrote an article on insider trading and the startup world of Silicon Valley. It was first written for a California state bar audience and then was seen by a leading corporate law scholar and I revised it for inclusion in an academic collection that scholar edited. Both the academic world and the practice world benefited, presumably, as did I by working through the issues first for that real world audience and then for a more academic audience.