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Friday, August 27, 2010

"Preaching What They Don't Practice"

A number of law-blogs have taken note of this paper, by Bruce Newton, called "Preaching What They Don't Practice:  Why Law Faculties' Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy" (Phew!).  (See Bainbridge, Caron, Law Librarian, etc.)  Here is Newton's abstract:

In response to decades of complaints that American law schools have failed to prepare students to practice law, several prominent and respected authorities on legal education, including the Carnegie Foundation for the Advancement of Teaching, recently have proposed significant curricular and pedagogical changes in order to bring American legal education into the twenty-first century. It will not be possible to implement such proposed curricular and pedagogical reforms if law schools continue their trend of primarily hiring and promoting tenure-track faculty members whose primary mission is to produce theoretical, increasingly interdisciplinary scholarship for law reviews rather than prepare students to practice law. Such impractical scholars, because they have little or no experience in the legal profession and further because they have been hired primarily to write law review articles rather than primarily to teach, lack the skill set necessary to teach students how to become competent, ethical practitioners. The recent economic recession, which did not spare the legal profession, has made the complaints about American law schools’ failure to prepare law students to enter the legal profession even more compelling; law firms no longer can afford to hire entry-level attorneys who lack the basic skills required to practice law effectively. This essay proposes significant changes in both faculty composition and law reviews aimed at enabling law schools to achieve the worthy goals of reformists such as the Carnegie Foundation.

Critiques like this are nothing new, of course, and (just as "of course") have some bite.  But, they can be (and I worry that Newton's might be) overstated.  Sure, we all remember (or know!) legal scholars and law teachers who seem way-disconnected from the practice of law and who we cannot imagine actually advising a client, putting together a deal, or arguing a case.  But, the suggestion that -- even at those awful, top-tier theoretician-factories that Newton has in his sights -- faculty members who are hired not only to teach skills and doctrine but also to investigate and reflect on the history, animating principles, normative failings, etc., of our craft and tradition (our learned profession) "lack the skill set necessary to teach students how to become competent, ethical practitioners" seems too sweeping.  The suggestion reflects, I suspect, a narrower-than-mine view of what it means to be a "competent, ethical practitioner" -- a real lawyer.

Nearly a year ago, responding to a claim (similar to Newton's) at the WSJ Law Blog that difficult economic times might result in a turn toward the "useful" in law schools ("Perhaps the focus will be more on teaching students on how to draft interrogatories than on reading John Rawls. If we’re reading Gerding correctly, law school may become less fun, but perhaps more useful."), I wrote: 

In my own view, for what it’s worth, it would be very sad if the lesson that law schools took away from all this is that they should become more narrowly technical and practitioner-preparatory in their approach.  In my view, law school needs to be *more* interdisciplinary, and the study of law needs to be approached *more*  like a humane discipline, than they currently are.  The world does not need, really, blinkered-but-efficient-and-proficient technicians; it does need, though, lawyer-citizen-leaders who are well read, ethically sensitive, public minded, and theoretically sophisticated.  There are huge problems with the profession, I think, but the answer to those problems is not, it seems to me, for law schools to resign themselves to the relatively unambitious task of providing fodder for the current (or post-crash) law-firm machine; instead, we need to produce people who have the ability and intellectual resources to transform the profession and help the profession to be what it should be.

This sounds, I admit, abstract and Ivory-Tower-ish (almost a caricature of out-of-touch tenured academics' self-important musings), even elitist.  I am uncomfortable with that.  To be clear, I think *practicing* law is (or, at least, should be) both "fun" and "useful" (it has certainly be fun for me!).  The disdain for everyday law practice that one sometimes encounters in the more rarified precincts of the academy is, at best, off-putting.  My sense, though . . . is that the *practice* of law, properly and richly understood, is . . . more (deeper, bigger, harder) than I think people give it credit for.  It is absolutely the role of good law schools to produce good lawyers; I'm just suggesting that the problems with the structure of the profession have not shown that the way to produce good lawyers is to shrink our understanding of what it means to be a good lawyer.  The big-firm model of legal-services delivery seems messed up and dysfunctional, no doubt.  I'm pretty sure, though, it's not because students have been reading too much Rawls.  (Well, maybe it is.  But it's not because they have been reading too much Jacques Maritain or Thomas Aquinas.  =-)  ). 

I think what I wrote is true, and is also responsive to some of what Newton is worried about.  To be clear:  It is essential that law schools provide, value, and reward the best possible legal-skills training to those students we are training to become lawyers.  But, it is also essential to remember -- those in the practice who are criticizing legal education need to remember -- that we are not only "training lawyers"; we are also forming professionals:  citizen-leaders and teachers who play a vital role in the project of securing and defending the rule of law in the service of the common good, as well as in helping people avoid and solve technical legal problems.  To say this is not to defend all hiring practices or all law schools' practices; it is just to warn against embracing too quickly a too-quick criticism.

Posted by Rick Garnett on August 27, 2010 at 10:58 AM in Life of Law Schools | Permalink

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Comments

I believe it is also important for critics to realize that this is not a binary choice. A law school does not need to choose between theory and practice. A law school can have both. A law school should have both.

Theory is important for core classes. There is no such thing as a case on point. Developing an understanding of legal theory allows a student to become a lawyer who can take a case that is not on point and apply to his own, or distinguish it from his own, and further craft new legal theory for courts to apply to unique situations.

Similarly, practical education is important for core classes. A lawyer will never be able to put his theoretical skills to work unless he is able to get a case in front of a court (and keep it there). This means it is important to understand how to draft complaints, answers, and discovery. The rules of evidence are also important because they shape the facts of a case.

I do not believe most law schools ignore the importance of both of these. Perhaps my view is skewed -- I did not attend any of the schools more often criticized as highly theoretical. Even so, I have friends who did.

What I have heard is that each school has opportunities for students to learn the practical side of the law. The problem is that many students do not take advantage of these opportunities. I have had separate conversations with classmates from a school considered highly theoretical school in my jurisdiction (Emory) which have had opposing views on the subject.

One student bemoans their lack of knowledge of the practice of law. They were not exposed to the process of drafting complaints and answers, drafting discovery, or courtroom procedure.

The second student loved their time at Emory. They participated in trial advocacy classes and took advantage of clinical opportunities in class and elsewhere.

The bigger problem, which I think seems lost on the two polar ends of the debate on law school curriculum, is that law schools should make more of an effort to expose students to the practical side as part of core classes.

My law school, Cumberland, did an admirable job of this compared to some. Evidence was a required first year course. (Some schools require it at some point, some not at all, but I've not heard any requiring it in the first year.) Our legal writing program placed us on a team representing a party in a case. Another writing class represented the opposing party. We had to draft complaints, answers, motions, letters to clients, and more.

These were required parts of our curriculum. We also had practical courses that could be taken as electives. I know other schools have begun to implement similar types of writing programs. I also know there has been a push to emphasize the importance of the practical side.

Hopefully the curriculum will move that direction. This won't require a radical change at most schools. A clinical requirement here, or a tweak of a writing program there, will often suffice.

I think one of the bigger problems, however, is a perception from some law faculty on the value of clinical and writing professors. These programs are not always taken as seriously by the school or faculty. A more comprehensive writing program will require professors who are more than just adjuncts. They need to be full-time, with a director who gets paid as a director of a program should. Similarly, clinical professors do important work in their own right. A good legal clinic can bring just as much acclaim to a law school as a good article published in a law review.

Even so, advocates of practical skills at the expense of theory are missing the value of theory. They are also missing the fact that both can co-exist. In fact, they did so admirable for many, many years. (And still do so in many smaller, regional schools that aren't as well known as, perhaps, the top-tier.)

In short, rumours of legal theory's death are greatly exaggerated.

Posted by: John Nelson | Aug 27, 2010 12:08:58 PM

The critique isn't just overstated, it's full of undocumented and baseless slander. Where are all those law professors who disparage practicing lawyers and judges?

Posted by: Brian | Aug 27, 2010 1:30:06 PM

Not "slander," "libel." QED.

P.S. Not serious.

Posted by: Ani | Aug 27, 2010 2:33:35 PM

Not even relevant!

Posted by: Brian | Aug 27, 2010 4:17:02 PM

Thanks for the reply. Its only relevance was as a joke about academic sensitivity to distinctions beloved in practice. Anyway, concerning relevance, I'm not sure to what you were originally responding -- who's saying that there are "all those law professors who disparage practicing lawyers and judges"? Rick Garnett mentions "disdain for everyday law practice that one sometimes encounters in the more rarified precincts of the academy." Are you reacting to that, rather than anything in the Newton critique?

As to the Newton paper, the part quoted above alleges that law schools are stocked with impractical scholars who lack skills and are hired to write rather than teach. In the introduction, the paper also says "the core of the faculties seem indifferent or even hostile to the concept of law school as a professional school with the primary mission of producing competent practitioners." That alleged hostility seems to be oriented toward the concept of the school, as a result of academic ambitions and pretensions, not directed outward against practicing lawyers and judges -- it's more negative about what the schools should or can be doing to produce than about its products.

FWIW, I come down on the side of thinking the critique is simply overstated. It would be a happy coincidence if all the incentives were properly aligned toward producing lawyers of the highest professional caliber and competence . . . I just think it's a great deal closer than the paper suggests.

Posted by: Ani | Aug 27, 2010 7:51:52 PM

I think Brian's point is right, and deserves some elaboration. What is the evidence for the claim that regular faculty look down on practitioners and adjuncts?

I don't think every factual assertion in an article needs to be footnoted, but the claim that this sort of disdain is characteristic of law schools is a pretty serious accusation that should be substantiated rather than merely asserted. If the author (an adjunct at Georgetown and Houston) has felt that disdain in his experience, he should say so, but even if he has, this does not mean that his experience is representative of all law schools.

At the very least, it's not representative of my experience. My law school has a great diversity of faculty, all of whom contribute in different and equally important ways. My classes tend to be more introductory and focused on general principles (property, copyright), and for that reason I always push students to take specific courses that have more practice orientation (e.g., real estate transactions, contract drafting) and are taught by adjunct faculty. The idea is that law students should have a variety of different courses, some more practical and some more doctrinal, that contribute to a varied and rich experience of understanding the law. This is the antithesis of the notion that all law classes must be taught in the same way, and that either practitioners or theoreticians represent the sole acceptable model for a law professor.

Another major flaw of the article is its tendentious claim that adjuncts who are engaged in practice are better teachers than regular faculty. The evidence for this assertion is terrible for three reasons. First, it comes from only one law school (Houston), and there's no reason to think that school is typical of all law schools. Second, perusal of the footnote shows that the difference may be trivial (.14 on a 5 point scale), especially because there's no attempt to determine if it's statistically significant. Third, and most important, there's a real question whether student evals are a meaningful measure of quality teaching. Some studies have suggested that evals reflect cosmetic things like attractiveness rather than whether students actually learn. I adjuncts bring a useful and important perspective to law education, but it's inane to suggest that all adjuncts are systematically better than all regular faculty (and I think the reverse assertion would also be inane).

Long story short, legal education is far from perfect, and there are some good proposals for reform out there (the Carnegie Report has some solid insights, though I'm not thoroughly convinced by it). And I think this article has some decent points. I like the idea that faculties should include mixtures of more theoretical and practical profs, though I think most schools already do this. But the twin assertions about contempt for practitioners and that adjuncts are systematically better than regular faculty both strike me as inaccurate and poorly supported.

Posted by: Dave | Aug 27, 2010 9:18:13 PM

I am now convinced that the *someone* is making "the claim that regular faculty look down on practitioners and adjuncts" or that they "disparage practicing lawyers and judges." As to the Newton article, I see the parts quoted in the original post and in my comment, and also see this passage: "How can we expect law students to become competent and ethical practitioners when the faculty members best suited to teach them the necessary practical skills and ethical lessons from real-world cases – clinicians, LRW professors, and adjuncts – are marginalized and even openly held in disdain by some members of the “main” faculty?"

I again see that as a matter of a school's internal sociology -- here, not about the concept of a professional school, but about its internal hierarchy. That's not to deny that other passages may exist; just trying to figure out what's giving rise to this reaction.

Posted by: Ani | Aug 27, 2010 10:03:43 PM

Along these lines, I highly recommend Rakesh Khurana's book on business schools (From Higher Aims to Hired Hands ), which has many lessons for law schools.

His speech at St. Thomas (6 U. St. Thomas L.J. 433) gives a taste, but the book is well worth reading in full. His work questions "the ethical, normative, and professional obligations we have now inculcated into an entire generation--thirty years of students".

Posted by: Frank Pasquale | Aug 27, 2010 10:53:00 PM

Just to be clear -- and Ani's comment makes me worry that I might not have been -- I am challenging, not endorsing, Newton's complaint about a pervasive and distorting disdain for, or uninterest in, the "real world" of law practice by legal scholars in the academy today.

Posted by: Rick Garnett | Aug 28, 2010 3:44:23 PM

Ani, everyone knows the distinction between slander and libel, but this was a comment on a blog, not a lawyer's brief, and the colloquial phrase (which a colleague used with regard to the Newton paper shortly before I posted this comment) is "repeats the slander." So your comment is irrelevant. Newton does indeed make the allegation in his paper that academics disparage practitioners and judges. I have never heard such disparagement at Texas or Chicago. I did hear something that might quality as that at Yale, but the sins of Yale shouldn't be visited on the rest of the legal academy. Newton is just making lots of things up, including this.

Posted by: Brian | Aug 28, 2010 5:18:17 PM

Brian, I'm not going to quarrel with you about the relevancy of comments, since (to reiterate) it was a joke, and thus ultimately about a sense of humor. To ward off additional allegations of libel/slander, I was not accusing you of failing to grasp the distinction.

I think you and Dave were correct in attributing the disparagement claim to Newton's paper. The clearest instance is on page 29, where he says that "there also is outright disdain for practitioners and judges among a significant number of full-time faculty members.[80] This disdain is reflected in the message conveyed to students,[81] . . ." So far as evidence goes, footnotes 80 and 81 cite other law review articles that make similar claims, particularly articles by Cohen and Schuwerk. I have not looked at them, but it's nice to see that Newton's faith in the accuracy of legal scholarship (at least about the academy itself) seems to be unshaken.

Posted by: Ani | Aug 28, 2010 6:23:24 PM

Part of the difficulty I have with Newton's piece (and others like it) is the seeming desire to conflate abstract and practical education, or at least to value the latter over the former. Both, in my opinion, are necessary parts of legal training: lawyers must be able to both write interrogatories AND think critically about the law and our social institutions. This is part of what separates lawyering from other trades. (And, not to belabor the point, but many law graduates will not spend their lives drafting pleadings. We also train statesmen--60% of the current senate and 3 of last 7 presidents--, judges, clerks, activists, academics, etc...)

While I do think it is possible to teach both abstract and practical skills in the same classroom, there is--in my opinion--nothing wrong with teaching them in separate places. So there is a need for both theoretical seminars AND clinical training, and to this extent, I agree with Newton that clinical faculty should not be treated as second class citizens at law schools (though I have never seen anything like the "outright disdain" he laments). But, in the end, I think that the most effective practical education will inevitably happen on the job, where necessity and repetition reinforce the everyday skills that a particular career path requires. Law practice is thus particularly suited to provide technical training, but perhaps not as well suited to teaching the kind of abstract skills learned in the classroom. That is the opportunity that law school provides. And there is nothing wrong with that, to my mind. We simply learn one part of lawyering in school and another part on the job.

Posted by: Ian Bartrum | Aug 29, 2010 3:13:02 PM

I don't think it is fair at most schools to accuse the tenure track faculty of holding adjuncts, legal writing instructors and clinicians in disdain, but I do think it is fair to say that they are marginalized - if, by marginalized, he means put at the margin of the power structure of most law schools.

Kent Syverud had an article a few years back about the caste system in American legal education, and it is pretty much spot on. Tenure track faculty are the privileged caste; the lower orders include others necessary to the enterprise such as legal writing instructors, clinicians, and adjuncts.

This caste system is reflected in the ways law schools are structured. At most law schools, the clinicians and legal writing instructors are not tenure track. At no law school that I've heard of are adjuncts given any form of formalized security in their appointments. (With adjuncts, the definition of "adjunct" gives a pretty clear clue of the perceived centrality and importance of those holding this role.) Clinicians and legal writing instructors often do not have votes in the faculty meetings, and so cannot participate in important school governance matters such as curriculum design or the hiring of a dean. Adjuncts, again, pretty much never have a role in these processes.

I don't know how it could be otherwise for adjuncts, but that doesn't change the descriptive point. They, and to a significant their clinical and legal writing colleagues, are at the margin of the law school power structure, and hence are fairly described as marginalized. They may be valued and admired, but they generally are not invited into the wheelhouse and allowed to steer the ship.

That this is descriptively, really, pretty much beyond debate, doesn't mean it should be otherwise (although, if I were king, the status of clinicians and legal writing specialists would be elevated). It doesn't speak to whether the tenure track doctrinal faculty should include more former practicing lawyers. It certainly doesn't speak to the practical/theoretical debate (which in my mind, as a former big law partner, is pretty much a false dichotomy, as a lawyer who can't operate in the world of theory is going to be limited to a pretty pedestrian practice). It is, however, the way it really is at most law schools.

Posted by: Ray Campbell | Sep 1, 2010 12:38:20 AM

The evidence for marginalization of skill-based faculty can be found in the tenure systems of law schools, where many writing and clinical faculty do not even have the contractual possibility of tenure.

At those schools where tenure is possible, it can be found in the statistics regarding the grant of such tenure for clinical or writing faculty, compared with the doctrinal faculty.

It can be found in the salary of the respective positions.

It can be found in the host of articles and reports on the issues - one of which is mentioned by

Frankly, I find any claim that a doctrinal professor - or, at least, one teaching for a year or more - is not aware of this marginalization to be disingenuous.

That said, it does seem to me that the best school would offer both practical and theoretical knowledge. Isn't that what Newton suggests?

Posted by: Tami | Sep 1, 2010 3:30:57 PM

systemic marginalization and "outright disdain" or "disparagement" are not the same thing. one might, i suppose, say that the two can feel similar to those marginalized, or that the former devalues clinical teachers in student eyes, but... they are not the same, and newton makes the former claim.

Posted by: anon | Sep 1, 2010 7:01:42 PM

anon, I noted the same sort of distinction, but you will see upthread at least some indication that Newton makes both kinds of claims. If you disagree, you need to explain the quotes.

Posted by: Ani | Sep 1, 2010 8:08:00 PM

oops... i meant to say "newton" makes the latter claims", so much for proofreading...

Posted by: anon | Sep 1, 2010 8:17:03 PM

Shouldn't critical legal studies provide useful tools for analyzing the situation of groups of people who are systematically paid less and given less job protection, and relating that to how the governing rules are created?

Posted by: Ray Campbell | Sep 1, 2010 8:57:46 PM

critical legal studies might tell us one thing...then again law & economics might tell us another... how's that for actual "disparagement"? ... (of the same kind, btw, as newton's unsubstantiated claims)

Posted by: anonymous | Sep 2, 2010 1:21:57 PM

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