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Volume17
Year2008
TitleLaw School Faculty as Free Agents
Author(s)Clayton P. Gillette
First Page213
AbstractIn this paper, I consider the consequences of free agency in law school markets. It is likely that free agency has financially benefited the law school professoriate. Whether it has benefited law schools generally, or advanced the quality of legal education is another matter. I mean those to be open questions rather than rhetorical ones. But I raise some issues that at least give reason for pause about free agency. The consequences of free agency have been similarly questioned in other industries, most notably professional sports. Studies suggest that the adverse effects that some predicted when free agency was officially instituted in those environments has not materialized. Thus, in the absence of similar studies that concern academic free agents, one might claim that my concerns are overstated. But those studies are often most interesting because they focus on characteristics of professional sports that have little or no analogy in academic markets. Moreover, the structure of professional sports markets differs from the structure of academic markets in ways that I suggest have significant effects on the qualitative effects of free agency. I consider those studies, therefore, to think about how the characteristics that allow free agency to advance the objectives of professional sports could have very different effects in an academic setting. To the extent that is true, law schools face a classic prisoners' dilemma in adjusting. Even if it would benefit legal education generally either to constrain free agency, it is contrary to the interests of any law school to constrain itself unless competitors do the same. I conclude, therefore, with some speculation about ways to address the effects of free agency.