I always wonder about second-order effects in situations like this. Recall that in Wheat part of the rationale for giving the prosecutor standing to challenge defense-side conflicts was that courts were divided on whether conflict waivers could ever be immune to challenge under Strickland. I personally have not considered the resulting line of precedent to be an improvement over the alternative of recognizing waivers. DM

I'm curious about who you think should have done the investigation. Not K&S, sure, but why not Jenner? If the premise is that they might want to curry favor with GM how do you limit that principle? You could exclude all firms with any products experience, though that does sacrifice some knowledge of the relevant practice norms, but even if you hired an investigation specialist wouldn't the premise imply that they could not be trusted because they might want to curry favor for the next investigation? DM

Fair enough. I'm not arguing against tenure as a university policy. That's a management question and an interesting one. The case for tenure as an accrediting requirement, however, is tough.

My primary contrast is between the academy and practice, but if you have examples of faculty facing significant consequences for, for example, late grades or missed manuscript deadlines, that certainly would be relevant. Bi-annual or annual review aggregate the results of more continuous feedback. Associates are accountable for briefs, transcripts, deal points conceded, etc., on an essentially continuous basis. Clients may hit partners with feedback (though rational associates will want direct client contact as soon as they can get it), but that just means accountability ripples. And all that is entirely apart from recording time and being accountable for aggregates in terms of minimum hours, etc. I do think the general point of the contrast is sound. DM