In an earlier thread about incentivizing law review placements, an interesting sub-discussion emerged after I suggested that one of the problems with tenure is that it potentially disincentivizes faculty from doing our jobs and then we look for ways to re-incentivize faculty to do more and/or higher quality scholarship. A comment was made that perhaps tenure isn't the problem because if it was creating poor institutional incentives, some schools would - or might - prospectively attempt to abolish tenure. But then of course those schools wouldn't be able to compete for high quality faculty with schools that do offer tenure.
I hadn't initially intended to suggest that any system in which some schools prospectively abolished tenure while others didn't could possibly be effective. In such a system, faculty would not be attracted to work at schools without tenure when they could have tenure somewhere else. So my initial thought was really a general comment about tenure - in a system where we all potentially can get tenure, there are less incentives to do our jobs. The only obvious alternative would be a system with no tenure across the board or a system where tenure "meant" something less significant than it does now and it was possible to remove tenure for unproductive faculty.
But the discussion in the other thread got me thinking about whether it would be possible to think about an effective system in which some schools prospectively decided to abolish tenure while others didn't. Assuming that there are institutional incentives to abolish tenure AND assuming that ABA rules don't actually require tenure (two big assumptions, I know), wouldn't it be possible for, say, high-ranked schools (US News proxy for quality again - sorry!) to abolish tenure without losing good faculty? In other words, could the prestige value of working at those schools, and potentially the higher salaries and lower teaching loads that "may" be associated with working at those schools, outweigh the detriment of not having tenure? Faculty members who are prepared to be engaged teachers, scholars etc may have no problem with such a system and may still see those schools as aspirational places to work despite the lack of tenure. Or is that a completely crazy idea?