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Saturday, August 28, 2010

More on "Whither Law Schools?"

The posts by Rick and by Kristen Holmquist below on legal education are very interesting.  I also recommend both Jonathan Adler's post on the subject at the VC, as well as the comments on it (sometimes because they are right and sometimes because they illustrate some deeply held views about legal education).  Let me add two or three cents.

First, as some of the comments to Adler's post demonstrate and despite what some of his commenters seem to think, the distinction between "practical" and "theoretical" or "academic" law teaching, or between legal academics with significant practice experience and those with little experience, does not track the left-right divide.  Some left-leaning legal academics, including many who write on theoretical questions, have significant practice experience and bring it to bear in their teaching and scholarship.  Some right-leaning legal academics, or those who use methods generally associated with more conservative political views, have little practice experience and write more on a theoretical level and with an interdisciplinary bent (see "economics, law and").  Arguments about practice versus theory have no particular political valence.  

Second, I think Rick and Kristen are right to emphasize that a good lawyer, broadly defined, may have and need a suite of skills beyond the narrowly "practical," or at least that our sense of what makes a good "practical" lawyer should not be unduly confined.  It is important to learn how to file a complaint, and law schools probably fall down on this job; it is also important to learn how to think in a useful way about complaints, particularly if the occasion demands more innovative thinking.  Neither the good and the best nor "practical" and "abstract" thinking are enemies here.  A number of the commenters on Adler's post make the point that some of their greatest value as lawyers comes from an ability to think broadly and in a sophisticated fashion about their work, and that they learned those skills from more theoretically oriented and less practically experienced teachers.  None of this is to say that there isn't room for much more focus on skills and basics, or for that matter that teachers with practical backgrounds will necessarily lack the skills to teach this kind of high-level thinking.  Law schools could do a much better job at this kind of thing, and many of them have strained to do just that in recent years.  It's just a plea against narrow thinking about what constitutes the lawyer's skill set.

Third, while I think there is much more room for law schools to focus on and hire for practice experience and practically oriented thinking and teaching, I think critics of the current model overstate the supply of qualified and practically oriented teachers who would be willing to do the job full-time.  I don't want to be unduly provocative in saying that.  Certainly there is a meaningful supply of potential applicants who fit that bill.  But my experience in past years on hiring committees (I am not referring to this year's applicants) has been that not all the focus on more theoretical and less experienced legal academics is simply a result of some anti-practical bias on the part of hiring committees.  Many lawyers with years of practice experience apply for teaching jobs, and some are both clearly terrific and unfairly neglected on the market.  But a number of those applicants strike me as less than stellar.  Not all their practice experience is terribly impressive, they show no particular vocation for teaching, and to the extent that we extend the practice vs. theory debate beyond teaching to scholarship, they give no strong evidence of being likely to contribute in a serious way to "practical" or doctrinal scholarship.  Even if we took a broader view of what it means to be a "well-qualified" teaching candidate, some practitioner applicants would not meet that test.

The reasons for this are complicated, and it's difficult to sort chicken from egg.  Perhaps some talented prospects drop out of practice earlier because they believe the market prefers a more academic candidate; perhaps fewer talented practitioners apply for teaching jobs because they believe it would be fruitless given the tastes of hiring committees.  Perhaps some of the most talented practitioners want to, well, practice, not teach.  Nor should we neglect the increasing wage differential between high-level practicing lawyers (excluding those in public service, which is an important exception to be sure) and legal academics, which may affect the applicant pool.  These are all important points to consider, and perhaps if law schools were less biased toward academic types and more favorable toward practitioners, we would see a different supply.  I certainly think not every law school need model itself after the stereotype of the Yale professor in selecting its applicants.  But our discussion of the future of the law school should not totally ignore those very pertinent facts on the ground, even if it would be more politic to do so.

Finally, our discussion of the practice vs. theory, or experienced vs. inexperienced, debate in the law schools should not ignore the huge stock of very experienced and skilled practitioners who already fill our law schools at all levels.  Most law schools already take tremendous advantage of both adjunct teachers and clinicians.  (The ambiguity in the phrase "take tremendous advantage" is intended!)  Students with a strong practical bent already have a ready supply of teachers who fit that bill, and many of them avail themselves of those opportunities.  There are strong grounds to argue that both adjunct and clinical teachers deserve much more attention and respect than they get at many law schools -- alas, too many faculty are barely aware of the names and backgrounds of some of the most interesting and beloved teachers at their own schools.  In a sense, asking most law professors to weigh in on the practice vs. theory debate is a mistake because law professors don't always know their own schools; we would be better off asking the deans and associate deans who actually hire and deal with adjunct and clinical instructors and know just how strong the enrollment in those classes already is.  In any event, the idea that modern law schools are all theory and no practice tends to focus only on tenure-track legal academics, and not enough on the substantial number of practically experienced lawyers who do a great deal of teaching at most law schools, either in the clinics or on a part-time basis.

In my typical, painfully moderate fashion, and against a few of the commenters on Adler's post, I just don't see why, even if we neglect Rick and Kristen's broader arguments about the kinds of skills we should value in teaching lawyers, we have to argue for law schools being all theory or all practice, either academic departments or trade or professional schools.  There is room for both, and both have value, both to the law and to law students.  To an extent not always recognized in this debate, we already do both.  Arguing about the proper mix seems legitimate to me; arguing that it is a zero-sum game, or simply assuming that the doors of law schools are being beaten down by superb practitioners who would be superb teachers and/or doctrinal scholars and who want to do so on a full-time basis, does not.

Posted by Paul Horwitz on August 28, 2010 at 12:51 AM in Paul Horwitz | Permalink

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What do you mean exactly by "Not all their practice experience is terribly impressive, they show no particular vocation for teaching, and to the extent that we extend the practice vs. theory debate beyond teaching to scholarship, they give no strong evidence of being likely to contribute in a serious way to "practical" or doctrinal scholarship.?

Are you making this judgment based solely on the FAR form and CV? Or from interviewing them? How do you conclude a lack of a "vocation for teaching"? I assume the lack of "strong evidence of being likely to contribute" to scholarship is from a lack of publications -- but is it a total lack or only one "scholarly" article?

As an experienced practitioner on the market this year, it is frustrating to read these discussions about the need to rethink the seeming prejudice against those with significant practical experience but then in the same breath dismiss most practitioners because they (appear) to lack a "vocation for teaching" and have not published extensively.

So exactly what are your perceptions based on?

Posted by: Atticus | Aug 28, 2010 8:48:58 PM

Much of the discussion has missed the most fundamental point of all. In order to find excellent teachers we should be searching for, hiring and awarding tenure to excellent teachers in the various subjects taught at a given law school. Looking for scholarly or practical chops and just sort of hoping it turns out ok for the students is malpractice.

Posted by: brad | Aug 28, 2010 11:09:45 PM

Brad, I don't disagree with you. In fact, many if not most law schools are interested in teaching skills, although one can question whether they are as interested as they should be, whether they do enough by way of training and monitoring, and so on. That said, some schools (and not just "lower-tier" schools) pride themselves on teaching and do make some efforts to train to that end, and so do some professional bodies, including the AALS's new law teacher workshop. You are right, however, to say that much more could be done.

Atticus, I quite understand and sympathize with your response. I would emphasize that I also said, and meant, that some experienced practitioners are excellent candidates, that there is room for doctrinal scholarship, that law schools could and should do a better job of focusing on skills, that there is room for a broader view of what constitute "qualified" candidates, etc. I wrote in all sincerity. I understand why my conclusions strike you as dispiriting, but do keep those other points in mind. What I was mostly objecting to was the assumption that we can simply draw a line between "academic" and "experienced" or "practical" candidates, with the former set being prima facie unqualified and the latter set being prima facie qualified for scarce teaching positions. Of course there are more or less qualified or stellar "academic" candidates, based among other things on their experience, their writing to date, their research agenda, the school's teaching and scholarly needs, their apparent facility in the classroom, their apparent interest or lack of interest in taking the academic turn, and so on. But one should acknowledge equally that there are more or less qualified or stellar "practical" or "experienced" candidates, just as there are, of course, more or less skillful and successful practicing attorneys. Some may indeed be stellar, and if they are not viewed that way at all by hiring committees there is some reason to argue against the standards that the legal academy is using. Others may have more lackluster experience or no demonstrable success as attorneys; or may have written something doctrinal but lacking in quality even by a standard of doctrinal writing; or may indicate fairly clearly that their interest in teaching is half-hearted; and so on. I don't at all mean this to discourage any applicants. I just mean to point out that (1) we should not simply assume an infinite apply of great applicants under either an "academic" or a "practical" set of criteria; (2) there may be reasons why the pool of stellar experienced applicants is not always as great as we might assume, including wage differentials, although I also say the pool may be a response to what you call a prejudice in favor of academically oriented candidates; and (3) no matter what criteria we apply, we will of course always have to select some and not others. I based my views on a variety of experiences and data, leaving out this year's candidates -- not only out of respect for them, but because the supply of stellar candidates, whether of a theoretical or of a practical cast, may change from year to year depending on the economic state of the profession as a whole.

Posted by: Paul Horwitz | Aug 29, 2010 4:20:47 PM

Prof. Horwitz,

I appreciate your response, but you did not actually answer my question(s).

In your original post, you stated that of past candidates with practice experience "[n]ot all their practice experience is terribly impressive, they show no particular vocation for teaching, and to the extent that we extend the practice vs. theory debate beyond teaching to scholarship, they give no strong evidence of being likely to contribute in a serious way to 'practical' or doctrinal scholarship."?

My questions focused on the basis for these assertions.

In your response, you state: "[o]thers may have more lackluster experience or no demonstrable success as attorneys; or may have written something doctrinal but lacking in quality even by a standard of doctrinal writing; or may indicate fairly clearly that their interest in teaching is half-hearted; and so on."

So back to my original questions:

Are you making these judgments based solely on the FAR form and CV? Or from actually interviewing these candidates? What is "lackluster" or unimpressive practice experience (and, as an aside, what do profs who never practiced use as a frame of reference)? How do you conclude a lack of a "vocation for teaching" or even a "half-hearted" interest in teaching?

My concern is that your statement sounds very much like a post-hoc rationalization for favoring so-called "academic" candidates.

Additionally, your statement about an experienced attorney writing something that is sub-par "even by a standard of doctrinal writing" conveys the distinct impression that you consider doctrinal scholarship to be less important than "law and ..." scholarship -- an attitude that is a huge impediment to the balance that is needed in the academy.

There should be balance on every faculty at every law school between the esoteric theoreticians and the more grounded doctrinalists; between those with real practice experience and those without; between theory and the application of that theory. Law school should never be a trade school. Lawyers are far more than technicians. It is all about balance.

Posted by: Atticus | Aug 29, 2010 6:12:22 PM

My wife tells me my last post was a bit defensive and, as usual, she is correct. What I am trying to understand, Prof. Horwitz, is what informs your view that many experienced practitioners have lackluster experience and no vocation for teaching. As I hope you can appreciate, this is a stressful time and I apologize for the snippiness in my last post.

Posted by: Atticus | Aug 29, 2010 7:58:20 PM

No worries: it *is* a stressful time. My reply was thin but genuine: I based my conclusion on a variety of data points. I appreciate that my post and/or my reply may have sounded heartless, and especially given the season I agonized about saying anything at all, but I concluded it was worth saying if only to flesh out the debate.

Let me be clear about two things. First, I am not trying to suggest a preference for academic over experienced candidates, to use the terms we've been using here (although not all experienced candidates are not "academic," and not all "academic" candidates lack experience). I am rather trying to suggest two things, one that I think should be uncontroversial and the other more controversial. The first is that no matter what standards we use, or definitions of "qualified," of course we will still inevitably conclude that some candidates are stronger than others. If the field were limited to experienced candidates and we were uninterested in purely academically inclined candidates, we would still prefer some candidates to others. The criteria for doing so might vary, and we could argue about them just as we argue about the criteria for strong academic candidates, but some sorting would still go on, if only because there are only so many spots. I think people on both sides of the line can agree on this, although it will be less comforting to applicants than hiring committees. The more controversial suggestion is that among recent pools of applicants, excluding this year's pool, the supply of very strong experienced applicants is not necessarily as strong as one might assume. This is a debatable qualitative observation, and others are indeed welcome to disagree with it. I said in the original post that the reasons for this are complicated and may indeed have much to do with the signals sent by hiring committees. But those reasons don't change the fact (if it is a fact). Again, I didn't suggest by any means that there are no stellar experienced candidates, and I suggested they likely deserve more respect than they get.

Second, although I worried about my use of the word "even" in the phrase "even by a standard of doctrinal writing, all I meant was that even if we apply a standard that looks for quality doctrinal scholarship rather than quality theoretical scholarship, naturally we will still conclude that some doctrinal pieces are better than others, by *that* standard. I wasn't slighting doctrinal scholarship as compared to theoretical or interdisciplinary scholarship; I was saying only that it, too, can be done better or worse.

Again, I know it's a stressful time. For what it's worth, you can assure your spouse that I had no problem with your comments, and thought and expected I would get some pushback.

Posted by: Paul Horwitz | Aug 29, 2010 10:50:38 PM

I understand that there is a significant effort underway to improve the teaching skills of current and future law faculty. That is certainly a step in the right direction, and to be lauded. It is, however, and entirely different project than centering the selection, retention and promotion of law faculty around excellence in teaching. Even in 'third tier' schools, I just don't see this happening.

There was a post on this blog several months about what factors go into a tenure vote for law professors. No commenter suggested he or she would reject a candidate solely for poor teaching ability, while there was a general consensus that poor scholarly output was a deal breaker.

I understand that few people give up the potential for lucrative careers in the private sector to devote their lives to teaching law - research and writing is, for most people, much more rewarding. I'm not suggesting that work loads be radically increased or anything like that - just that the teaching, which after all funds the whole endeavor - take a much more central role in personnel decisions.

Posted by: brad | Aug 30, 2010 2:43:34 AM

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