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Sunday, November 20, 2011

Scholarship and Lawyering

I'm sure by now many (if not all) of you have read David Segal's article in the New York Times "What They Don’t Teach Law Students: Lawyering."  Matt's already put up a post critiquing the piece and some great comments have followed.

One thing that struck me when reading the piece was the following line: "Professors are rewarded for chin-stroking scholarship . . . ."  Of course, what professors are typically rewarded for is article placement - I don't know of any school that has adopted a policy for rewarding only articles addressing the arcane.  And while many law profs bemoan the submission process, it seems worth noting that students are the ones who select the articles.  So it seems fair to say that, at least to some degree (professors may very well shape what their students consider good scholarship), students play a major role in the type of scholarship that law schools reward. 

All this might be a good reason to support the current article submission and selection process (no, I'm not expressing a definitive view here).  It provides students with the opportunity to shape scholarship in the legal academy and promote whatever type of research they deem important.  If it is in fact true that students are selecting articles that lean more towards theory than practice, then profs will presumably follow suit.  On that count, the climb of theoretical pieces might be seen as profs simply giving their clients - i.e. paying students - what they want. 

Posted by Michael Helfand on November 20, 2011 at 12:13 PM in Life of Law Schools | Permalink

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In suggesting that student law review editors drive the market for what type of articles professors write, I think you inaccurately presume that these students act in a vacuum. I think your parenthetical ("professors may very well shape what their students consider good scholarship") actually sells reality short; IMHO professors nearly *dictate* the nature of what their students consider good scholarship. I find it unlikely that a group of early to mid twenty-somethings, the vast majority of whom are heading into practice and not the academy, would spontaneously develop a preference for theory in the absence of socialization toward that norm.

It was clear to me as a law review editor that we were to select theoretical pieces over practical works. In the law review orientation, faculty guest presenters explicitly deemed practical scholarship "pedestrian," and theory was exalted as the only valid level of discourse. Prior to that inculcation, I had no clue *what* was deemed "proper" scholarship. This is anecdotal evidence, to be sure, but I think the scenario reflects a fairly ubiquitous philosophy.

In addition, the only actors in the system with a vested interest in proliferating the preference for theoretical scholarship are the profs who write it. Without that market, profs would lack a venue for their preferred milieu.

All this is not to say "death to theory." Quite to the contrary. I think the best regime would be one that values both theoretical and practical work. But, the current (nearly) pervasive disdain for practical scholarship is indicative of an academy out of balance.

Posted by: 5thyrLawProf | Nov 20, 2011 7:30:31 PM

IME, editors choose pieces based on likelihood of citation with some eye toward seriousness. I don't think it's so much socialization of editors by law professors in their schools as professors creating the climate of what articles get cited and read.

Posted by: Jason Wojciechowski | Nov 20, 2011 9:35:15 PM

"[T]he climb of theoretical pieces might be seen as profs simply giving their clients - i.e. paying students - what they want."

Absolutely not. First, law students do not want theoretical pieces, law reviews do. The difference is critical, as law reviews have institutional interests different than law students. Second, only a small subset of law students do the selecting. And they are the ones, particularly at the highest echelons, who are most likely to self-select into legal academia. If all law students voted on what law reviews should publish, your point might have slightly more force. Third, even among the small cadre of articles editors who do the selecting, there is a tremendous pressure from faculty, advisors, and others to select "in" material. Right now, that's articles with a sexy "law and" hook or an new empirical take. If the editors chose other material, the faculty members from whom they need clerkship recommendations and employment references might not help out as much. Why recommend the rogue pragmatist when a sycophant is available, after all?

Posted by: Law clerk | Nov 20, 2011 10:26:58 PM

Thanks 5thyrLawProf, Jason and Law Clerk for your great comments.

I think all of your comments, to some degree, highlight the following: the relative roles of students and faculty in article selection is complex and contested. And to that extent, Segal's piece (at least in my view) fails to note the relationship between students and faculty in driving the content of scholarship.

Posted by: Michael Helfand | Nov 20, 2011 10:38:43 PM

Michael, I agree that Segal's piece is flawed in many way. His thesis, IMHO, is good (law school should attend to the "practical apprenticeship," in Carnegie terms, to a greater degree), but his proof of his thesis is weak. It seems as though his thesis is merely his vehicle for exposing extreme anecdotes. In this sense, by citing such off-putting examples, he alienates the very audience most likely to make the changes he seeks (law profs) and actually helps to re-entrench the status quo.

What is sorely needed is a level-headed, open-minded, and inclusive examination of the balance between skills and theory in legal education. The vitriolic tactics of Segal and Paul Campos don't help.

Thanks for continuing an interesting discussion.

Posted by: 5thyrLawProf | Nov 21, 2011 8:44:18 AM

I think it is clearly a mistake to blame law reviews for the quality of legal scholarship, since, at a minimum, it is law faculties who give the reviews any real influence by continuning to emphasize placement in their evaluations. Law faculties are also to blame for creating more law reviews than anyone possibly needs, solely for resume filler. But this purported practical vs. theoretical divide seems also misplaced -- most legal scholarship these days is not particularly theoretical in nature, and there remains a substantial amount of purely doctrinal work, that places very well, which could easily be defined as practical since it is designed to influence the development of the law through doctrinal critique. Whether it does influence the development of the law is a separate question, but not one that is answered by how often the Supreme Court cites articles. What I would consider purely practical -- how to settle a case, how to file a motion -- can be found in various bar journals or CLE programs, and if you read any of it, it would be hard to define as scholarship. I think there are interesting comparisons to be made between law schools and medical schools, or business schools for that matter, but I don't think the problem lies so much in the kind of scholarship law faculties produce, though I do think we need to think long and hard about the kind of legal training we provide, including whether there is any justification for three years of doctrinal work.

Posted by: MS | Nov 21, 2011 9:19:27 AM

What I would consider purely practical -- how to settle a case, how to file a motion -- can be found in various bar journals or CLE programs, and if you read any of it, it would be hard to define as scholarship. I think there are interesting comparisons to be made between law schools and medical schools, or business schools for that matter, but I don't think the problem lies so much in the kind of scholarship law faculties produce, though I do think we need to think long and hard about the kind of legal training we provide, including whether there is any justification for three years of doctrinal work.

A large number of articles being written by medical school faculty today are in the nature of informing the medical community at large of best practices for evidenced based medicine. Another chunk of articles describe novel procedures successfully carried out.

Why is such work beneath law faculty?

P.S. I apologize if this is posted multiple times, the site seems to be having some problems today, at least for me.

Posted by: brad | Nov 21, 2011 11:55:55 AM

Brad: it's not that such work is "beneath" law faculty, it's that law faculty are not qualified to opine on it - arguably, it is *above* law faculty. The medical school faculty you describe are the ones who are carrying out the novel procedures and who are developing best practices for medicine. In contrast, law professors almost always have little or no experience in first-chairing trials, arguing to appellate panels, preparing and filing patents, conducting mergers or hostile takeovers, advising clients face-to-face, or mediating a settlement. For them to view this work as "beneath" them would be hilarious - they are not qualified and would not be hired to perform it.

Posted by: anon | Nov 23, 2011 6:06:42 PM

The best medical school professors do not teach. They are researchers. Romanticizing medical schools is not the way
to go. Actually, romanticizing anything is seldom the way to go.

Posted by: Anonymous | Nov 23, 2011 6:37:44 PM

Interestingly, for all I hear about in these forums about us law professors supposedly "disdaining" practice, the only disdain I see is from commentators like "anon at 6:06:42" above. First, it is a wild generalization to say that law professors have little or no practice experience -- some leading law professors (e.g. in my field, Mark Lemley, and in the law firm I previously worked, Kathleen Sullivan) are partners at law firms.

Second, being a law professor is a different job from being a lawyer. So what? It is one of the worst instincts of human nature to believe that those who are different from you are thereby inferior to you. I haven't seen that sentiment pervade the academy; I do see it on open display here.

Posted by: TJ | Nov 23, 2011 8:10:47 PM

TJ: Lemley and Sullivan are noted exceptions, worthy of respect. However, my generalization is not "wild" - if you try to make a list of law professors similarly situated to those two (who are both teaching and practicing and who have demonstrated significant aptitude for both), it will be a very short one.

I don't in the least think that people who are different than me are inferior to me. For instance, as an appellate litigator, I do not think I am superior to (or inferior to) trial litigators or transactional attorneys. However, I would not have much respect for transactional attorneys who believed themselves qualified to train the next generation of appellate litigators (or vice versa); that's ridiculous. And since "being a law professor is a different job from being a lawyer," I don't have very much respect for law professors who have little to no practice experience (i.e., the vast majority of law professors) who believe that they are qualified to train lawyers. They're not. Were law professors only training other law professors - and were none of the rest of us subsidizing that enterprise with our tuition dollars - I can't imagine that any of us would care very much.

Also: I don't think law professors necessarily disdained practicing, though I do think that at least some found it "insufficiently intellectual." What I found was true of most of my professors (at HYS), though, is that they described not enjoying practice very much and not wanting to do it full-time for very long. That does not necessarily mean that they disdained it, but it again speaks to their being poorly situated to instruct the next generation of people who will spend their careers as attorneys.

Posted by: anon | Nov 23, 2011 9:27:35 PM

To the last anon:
I've mostly refrained from weighing in on this topic, but something you said has spurred me to temporarily intervene. The legal academy has been emphasizing scholarship among its members for at least 20 years and at the top schools it has been even longer. You talk about law profs under this regime of intellectualism as being poorly situated to instruct the next generation of attorneys.

Do we think the lawyers who were trained over the last 20 years at law schools under this new 'scholarship' regime are worse than the lawyers who were trained beforehand when scholarship was less significant in the lives of law professors? If so, what are your metrics for making that claim? Or do you simply object to the increased cost of a more scholarship-focused legal academy?

I don't know the answer: maybe the more "law school as trade school" era in which most of the fancy schools did not have productive and more intellectual faculties was better for society and law students. I certainly think the ABA and AALS and other bodies are interfering with creative disruptions in the delivery of legal education. I also think taxpayers are right to ask whether publicly supported legal education is a compelling use of their tax dollars compared to other important social tasks.

But I largely think Segal's attacks on legal education don't have sufficient nuance to be persuasive and I'm quite doubtful that the emphasis on legal scholarship by some professors is getting in the way of a better law for society or a more attractive legal education. There are after all some for-profit law schools and they don't emphasize or produce too much scholarship on their faculty as far as I can tell. Maybe it's still too soon to tell if their graduates will be better situated than the graduates of more intellectual/scholarship-oriented schools, but if they're not, the critics will need a good story of market failure to explain why not--or they might have to soften their views and voices and pull in their elbows a bit.

Posted by: Dan Markel | Nov 23, 2011 10:04:57 PM

anon, I would expect that your tuition dollars have long since been paid and are sunk, and by your logic you should no longer care.

More generally, your logic that only people who enjoy practice and wish to do it full time should teach creates a bit of a catch-22. The people who enjoy practice and wish to do it full time are either living their dream (in which case they will not want to be law professors); or they are flunking out because they are terrible at it (in which case I presume you do not want them to be law professors). The job of a law professor is different from a practicing lawyer for a reason.

One argument is to abolish law schools altogether and go back to an apprenticeship model. But short of that the people who want to teach full time are necessarily people who don't want to practice full time (unless your model of a law professor is a major workaholic, and I doubt there are enough of those).

Posted by: TJ | Nov 24, 2011 12:26:28 AM

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