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Thursday, February 14, 2013

False Binary: Academics Who Have Not Practiced Cannot Teach Lawyers About Law

One thing I learned from my last post on the false dichotomy between practice and academia, and from Michael Mannheimer’s great follow up post and ensuing discussion, is that lots of people see “practice” as a straw man, and that when we start to cash out what practice-readiness really means, it turns out we mean a bunch of different things, depending upon who’s doing the training.  So unless “practice-ready” is handled with care, not only is it a straw man, but a Trojan straw man at that: one that likely to capture you unawares. 

One version of the claim is that academics who have not practiced are ill-equipped to teach lawyers about law. For example: “It is questionable whether a professor with little or no practice experience is ideally suited to train students for legal practice.” Brian Z. Tamanaha, Failing Law Schools (2012).

I cite Professor Tamanaha merely to provide one, pretty powerful, source for the argument.  Because it has a wider public circulation, I’ll consider some permutations that are not attributable to him.  Treat them as straw men or not, at your leisure.  

Here’s what I take to be the steps of the argument:

(1) Academics have not practiced:

(2) Practice experience is required to train lawyers how to practice;

(3) Therefore academics lack the experience required to train practice-ready lawyers. 

Note that this argument goes through even if academics teach practice-relevant subjects. 

There’s a different argument, one that deals with which subjects are practice relevant and which are not, that I’ll engage with tomorrow.  I’m assuming that we’re talking about who is teaching the black-letter law classes, and how they ought to do it.  Even if the argument is that we should include small drafting simulations in the course, as some of the comments on Professor Mannheimer’s post suggested, that’s not exactly a radical change, but a minor tinkering with the casebook.

If the argument that is non-practitioners are ill-equipped to teach practice then it’s quite radical.  The model of law schools for quite some time now has been to hire people who have not practiced but who have clerked.  So it ignores much of the history of the law school.  Simply put, if any adequate law school curriculum requires people with lots of practice experience to teach it, then we’ve been failing to teach lawyers for over 100 years.  I’m open to that argument, but it seems to me that it’s not the argument being pushed by people who want to get rid of the interdisciplinary stuff or who worry about faculty being distracted by the academic pursuits of writing law review articles.

And if the argument is that, in the past, before the ABA raised the standards, there were more adjuncts who did the sort of modified experiential learning, then the argument becomes: we’ve been failing to teach lawyers the core subjects for over 100 years, and they’ve only learned law in peripheries of the law school.  That may be right.  But if it is right, then the current change is not down *just* to ABA standards, but to the larger movement of law firms that no longer want to pay huge sums to train lawyers.  Practice-ready, on that view, is about shifting the cost of apprenticeship from the firm to the school (which, unless the school gets extra funding or makes cuts, means the student).

More importantly, the argument suggests that players make the best coaches.  Perhaps I'm biased because I'm a Bill Bellicheck fan, but Mike Singeltary was great at practice (playing), not so good at teaching.  Good coaches make the best coaches, whatever their experience.

If the idea is that academics are not interested in practice, or in teaching practice, I think that's an interesting hypothesis with as yet no empirical support.  The argument amounts to: subjectively, it appears to [anti-interdisciplinary person] that interdisciplinary faculty are not interested in discussing how to draft contracts, or complaints, and so on.  In my experience, that’s just not true.  But experiences differ.  It appears to me that legal academics are in the law school rather than some other university department precisely because they are interested in the intersection of (other perspective) and law: how (other perspective) operates in (legal) practice.  Without some detailed data, however, there is no way to settle this.  I’ll discuss this feature of the “dichotomous interests” claim tomorrow. 

There may be another assumption at work here, which is that some folks who teach, and especially those with no firm experience, can’t work out the basic bits of practice that include drafting a complaint and so on, or won’t recognize its significance.  But, unless there is some data to support this view, it amounts to no more than a form of cognitive essentialism: people who haven’t practiced can’t get it; it’s a practice thing, you wouldn’t understand.  But the relatively minimal amount of pretty basic practice stuff that we can deliver in the classroom doesn’t require a huge amount of practice-oriented sophistication.  It’s the sort of thing that, in my firm, we used the practice guide to figure out (how to draft a complaint, motion to dismiss, and so on, which the practice guide had cut-and-paste forms for, and which the law firm often had exemplars for) and then got a yay or nay from the partner.  It’s not rocket science, and takes very little legal experience to pick this up.

It seems to me that the challenge to reproduce in the large classroom what goes on in the firm or the courtroom or even the chambers is doomed to failure.  We can provide a tiny taste, but not the meal.  One of my colleagues, Tom Stewart, who has 23 years of practice experience, organized his class as a small law firm, and taught evidence by dividing the students into small collaborative groups making presentations to the partner.  Exciting stuff; innovative teaching; and mimicking practice, and the students loved it.  But Tom thought that this style would only work with small groups of no more than 25 or so students.  The *real* stuff that mimics practice, whether in the classroom or the clinic, occurs on an (expensive) small scale.

What the best practice-oriented folks bring to the table in the large classroom is a sense of how the law really works on the ground, as applied.  In my area of study—problem-solving courts—I’ve been lucky to be exposed to some wonderful ethnographic work that gets you into places that are sometimes not easily accessible *even in practice*.  So all that sociological and anthropological, political, historical, and so on, stuff just is really useful to work out the hows and whys and wherefores of practice.  Put differently, all the stuff that the great tellers of war stories bring to the table, so do the ethnographers, historians, or anyone concerned to understand the practice, just data rather than anecdotes. 

So the idea that “academic” faculty don’t need to *or want to* know the law is rubbish.  They do—at least the one's I know.  And the idea that they can’t convey a sense of the practice to the students is also rubbish.  In fact, what we see is an interpenetration of practice and theory, so that the good practitioners are thinking about new developments in the law, and the good academics are thinking about making connections between the stuff they teach and practice. 

For an example of the former, take my colleague Mike Wolff.  Mike is a former Chief Judge of the Missouri Supreme Court, and as Chief Judge, he published an article on evidence-based sentencing that argued for risk assessments of the various programs available to offenders, so as to better inform judges as to the relevant options.  Here’s someone who meets all the criteria for practice engaging with the academy in a quite detailed and abstract manner.  (Full disclosure, he cited one of my articles).

For an example of the latter, my colleague Jeff Redding writes in, among other areas, comparative law.  His article on the rule of law in private shariah courts is based on an ethnographic study of one woman’s experience getting a divorce in one of these shariah courts.  It’s a view that usefully challenges us to think about the location of the rule of law in specialist courts.  It is certainly practice oriented, even if the location of that practice is somewhat unusual.  But even in a comparative law class, Jeff’s ethnography provides opportunities to discuss what clients get out of the legal process, how to think about alternative resolutions, how to determine the value of traditional courts from specialized ones: the sorts of things that the war story approach brings, and which is the fodder of the large class discussion about practice-ready lawyering.  

I’ve been banging on about ethnography: but part of declining to entertain the Trojan Straw Man of practice readiness is recognizing that what counts as a practical orientation in a large lecture is very different from a skills course or a clinic.  More experiential learning is appropriate for the clinic and perhaps for small classes.  Using practice stuff to help students learn to identify issues, reason well with and from rules and authorities, write well, and so on, is the focus of the large class.  The range of experiences we are able to provide students in that setting is likely to be quite basic and readily discovered by those of a mind to do so.  If the argument is that more law professors ought to be of a mind to do so, then I’m in full agreement with that.

Posted by Eric Miller on February 14, 2013 at 01:31 PM | Permalink

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"Even if the argument is that we should include small drafting simulations in the course, as some of the comments on Professor Mannheimer’s post suggested, that’s not exactly a radical change, but a minor tinkering with the casebook."

Professors in the other thread noted that the spent between 30 and 45 minutes with students reviewing their written work. That doesn't even take into account the time taken to grade and provide written feedback. In a large lecture class a written assignment thus can easily mean 60+ hours of feedback work, plus however much time it takes to prepare the assignment and discuss it in class. That's a large increase in total labor for a class that might have only 45 in class hours all semester.

If your notion that that's a minor tweak is widespread among faculty, that's good news indeed. It means that a mandate for a graded written assignment, with detailed feedback in every class makes even more sense.

"But the relatively minimal amount of pretty basic practice stuff that we can deliver in the classroom doesn’t require a huge amount of practice-oriented sophistication. It’s the sort of thing that, in my firm, we used the practice guide to figure out (how to draft a complaint, motion to dismiss, and so on, which the practice guide had cut-and-paste forms for, and which the law firm often had exemplars for) and then got a yay or nay from the partner. It’s not rocket science, and takes very little legal experience to pick this up."

I'd respectfully submit that your abilities and those of your fellow associates at Quinn Emanuel are not typical of law students generally. It's the nature of the beast that only at the very best law schools are faculty and students are even on the same level but for the additional experience of the former.

Posted by: brad | Feb 14, 2013 2:27:49 PM

I think the core problem here is that you have extrapolated from your two years in practice and see practicing law as being like those entry level years. You, like most professors, were in that phase of practice where you could be used to do what you were trained to do well (legal research and writing) but where you had not moved on to the things that separate those with successful practices from those without (exercising judgment on complex issues in the face of uncertainty, attracting and retaining clients, navigating through office politics, translating legal insights into actionable advice for businesses or individuals whose problems are only partially legal, balancing your duties to your clients with your duties to the system and, ultimately, yourself). The early years of practice draw a lot on law school, but as you go on, not so much.

Why does this matter? Because, to really understand what's needed in professional education, you need to understand what a mature professional practice involves. Having been a mature professional is not the only way to understand that, but it's one way. We can all point to a few mature professionals who have found their way to the academy, but as you note, it's not the norm, and the discussions inside the academy involving those who never reached even mid-career levels about what law practice involves can involve some serious misunderstandings.

I think the whole debate has been miscast. Surely, the data indicate that law schools are not doing a great job at preparing students to be happy, productive professionals. At the same time, teaching them how to draft a complaint really isn't going to address the hardest issues. To really get to a professional education that prepares students for a life in the law, we need to think more about what they need to know to become successful mature professionals, and we can't get there without a good understanding of what mature professionals do. While there are many ways to get that understanding, I think getting that understanding incorporated into the debate is an important part of the overall task.

Posted by: Anonorooni | Feb 14, 2013 2:41:04 PM

It’s true that a non-practitioner (NP) could effectively teach students how to practice. But it wouldn’t be easy. The NP would need to get elbow deep in the stuff of practice and would need to keep up with developments. To do that, the NP would have to have an appetite for practice or at least an enormous tolerance for it. If, on the other hand, the NP got into teaching because she found practice horrible or never did any practice to begin with, it would be particularly difficult to teach students how to practice.

So while it’s not impossible, I’d have to agree with Brian Tamanaha's observation that it’s questionable whether such a person is ideally suited for teaching how to practice. (Btw, I can think of one professor in the PR field who's not even a lawyer, let alone one who has practiced, and by all accounts that professor does a terrific job in class. I also know of a superb skills professor who never did in practice the very skill he/she is so good at teaching. Both of those professors are elbow deep in actual practice through their scholarship.)

Did you make a logical error with the coaching analogy? (Btw, the man you say you’re of a fan of is “Belichick.”) While it’s true that many great players don’t make good coaches, all of the great coaches had been players, including Belichick, who was the son of a football coach and who played three sports including football at the college level and who is in his college’s athletics hall of fame. True, you often hear that mediocre players make the best baseball managers (e.g., Earl Weaver, Tony LaRussa, Tommy Lasorda), but you don’t often hear that people who never played the sport, or barely played the sport, and who don’t particularly like the sport are the best coaches.

Finally, as to whether law schools have been failing to teach students how to practice for 100 years, is that really true? I had the sense that the move to more theoretical teaching and interdisciplinary subject matters was not 100 years old. I recall looking at that database of 100+ years of final exams at Harvard and thinking how brutally practical those old exams were.

Fwiw, I think that theory and interdisciplinary scholarship have their place, that not all courses of have focus on being “practice ready,” etc. I just found several of your observations questionable. Basically, if you do decide to teach a "practice ready" approach, you need a lot of experience with practice, either as a practitioner or someone who invests a lot of time into understanding practice.

Posted by: John Steele | Feb 14, 2013 2:55:45 PM

I think an important issue is being missed in this debate. To be able to teach, one needs to know how to teach. Most people go into law teaching without ever having taught before, without any training on how to teach, and without thinking about what teaching is. Has anyone here looked at Teaching Law by Design by Michael Hunter Schwartz, Sophie Sparrow, and Gerald Hess (Carolina Academic Press 2009)? Has anyone here attended a conference on law teaching?

Posted by: Scott Fruehwald | Feb 14, 2013 3:24:07 PM

The question of whether professors with little or not practice experience can teach dodges the more important question: whether professors with practice experience would be better?

I fail to see how having 1-2 years of practice experience would make one better suited to teach than someone with 5-15 years. On the other hand, many years of practice experience have obvious benefits. Aside from being able to relate theory to practical lawyering issues, professors with practice experience can talk about the day to day life in their practice setting and provide valuable mentoring and career advice. They're also more likely to have extensive professional networks which can be used to place students in jobs.

And so far as the academy wants to down play the role that practice experience contributes to teaching ability, it should have to defend the credentials it does prefer in new profs, such as being on law review, or having a prestigious clerkship. Not that these experiences are without value, but if schools are going to value them more than practical experience, they should explain why.

Posted by: Derek Tokaz | Feb 14, 2013 3:26:34 PM

Scott --
Good point, and given the very high levels of tenure awarded in this field should be considered quite intensively during tenure-track hiring, as well as lateral hiring.

Hiring committees should no more hire someone without a teaching track record than someone without a scholarly track record.

Incidentally, as it relates to interdisciplinary law professors, it should be a significant advantage for Phds, as unlike most with only JDs they tend to have prior teaching experience (although fellowships are ameliorating this problem somewhat).

Posted by: brad | Feb 14, 2013 3:32:31 PM

Dear Eric,

I agree with much of what you say, but I think your argument presupposes that hiring practices have remained the same for the past 100 years. My understanding from empirical work on this subject is that the amount of practice experience on the average law school faculty has been falling steadily (particularly at elite schools). While law schools have always hired new professors directly from highly prestigious clerkships, even many of these individuals would have a year or two at a firm or a stint in government or a public defender's office. Law schools have been hiring an increasing number of PhDs, however, who have never actually been engaged in law practice. Indeed, my understanding is that a PhD is a de facto requirement to be hired at some law schools.

I agree with you that a lack of practice experience does not mean that one cannot be an effective teacher. But part of our obligation is to convey to our students what lawyers actually do. One might not need a decade of legal experience to do this, but surely some is required.

Posted by: Milan | Feb 14, 2013 4:45:25 PM

I think it would help if you presaged this comment with the fact that you had two short 1-year or less periods as a very junior associate at Quinn Emanuel - a LLB from Edinburgh and a US LLM. In short, the self interest in the analysis of the non-necessity of legal practice experience should be acknowledged at the beginning of this post. You might also think that the first response of every reader of your post would be to pull up your curriculum vitae (and thus find out what you shrunk from mentioning.)

My own personal experience is that all the great professors I had in law school, gifted teachers and good presenters were notable for the fact that they had very substantial practice experience. The truly poor (and prone to the "think like a lawyer" phrase) were notable for their utter lack of any real experience (but their tendency to try to give students the impression that they had in fact substantial practice.)

Posted by: MacK | Feb 14, 2013 5:44:13 PM

Eric writes: "The model of law schools for quite some time now has been to hire people who have not practiced but who have clerked. So it ignores much of the history of the law school. Simply put, if any adequate law school curriculum requires people with lots of practice experience to teach it, then we’ve been failing to teach lawyers for over 100 years."

Are you sure about that? Historically, it was relatively rare for people to begin teaching after only a clerkship: Some amount of practice experience has always been the norm. Take the case of Harvard Law, which is the school often associated with hiring folks with only a clerkship. I happen to have a copy of an HLS yearbook from the early 1960s, and most people on the faculty had practice experience. Just going alphabetically from the faculty, here's A to C:

1) Areeda- former Assistant Special Counsel to the University
2) Bator -- practiced law for 2 years in New York after clerkship
3) Baxter -- former head of the International Law Branch of the Army Jag and former DOD lawyer
4) Berman -- no practice experience, no clerkship
5) Bok -- former Assistant GC to the Secretary of the army.
6) Braucher -- practiced law in NYC
7) Brown -- several years in private practice
8) Byse -- no practice experience, no clerkship
9) Casner -- unclear
10) Cavers -- 3 years of practice at NY firm
11) Chayes -- 3 years of practice at Covington & Burling
12) Cox -- 7 years of practice, at a firm, the SG's office, and the Dept. of Labor

Anyway, that's A-C. It looks like the norm was 2-5 years of practice experience, and that was in addition to any clerkships.

Posted by: Orin Kerr | Feb 14, 2013 5:45:13 PM

“It is questionable whether a professor with little or no practice experience is ideally suited to train students for legal practice.”

Do you actually disagree with this statement?

Let's say, for example, your school has a prosecution clinic in which the students actually try a case. Would you hire an anthropologist JD/PhD (with no trial experience) who has studied trials to teach the clinic?

This JD/PhD could teach the clinic, I grant you, but I doubt anyone would think that this person is IDEALLY SUITED to teach the clinic. This is just one example, but I can make the same point for other types of non-clinical classes in which students can benefit from being taught by someone with experience. That said, there are also a bunch of classes for which practice experience makes little or no difference (Constitutional Law comes to mind).

There is a difference between book learning and knowing by doing. Smart people can figure out lots of things by reading, but until you have done a trial, you don't know what it's like to do a trial. This does not deny your point that people with little or no practice experience can still teach many things well to their students--I don't dispute this.

But that does not detract from my basic point that people with genuine practice experience bring something additional (and directly relevant) to the classroom compared to a person without experience. It is precisely for this reason that most law schools (except Yale and a couple other schools) require at least some practice experience.

It's great that you champion interdisciplinary knowledge. I value it as well, and read a great deal of anthropology and sociology, which I incorporate into my scholarship. I also bring this knowledge into my Jurisprudence, Law and Society, and Professional Resp. classes.

When I practiced law (two decades ago), I handled a few hearings and trials as a public defender, argued motions, gave opening and closing statements, and conducted direct and cross-examinations (see Rewald v. United States); later, an assistant attorney general for Yap State, I wrote a Code, I negotiated a fuel supply agreement with an oil company, I drafted a constitutional provision and advised the Committee at the Constitutional Convention that enacted it, I defended the state against torts claims, and more. These practice experiences undoubtedly inform my teaching. In Prof. Resp., for example, I talk about ethical dilemmas I faced as a criminal defense attorney, including once when I was charged with three counts of criminal contempt (and faced my own trial).

Just as I believe that my interdisciplinary knowledge helps inform my teaching, these practice experiences make me a better law professor. I could have taught law without any genuine practice experience (beyond a clerkship), but I think I'm better at my job owing to this experience. That is the point I was making in the sentence you quoted.

If you disagree with this, please say why.

Posted by: Brian Tamanaha | Feb 14, 2013 6:03:37 PM

The problem with this debate is that all of this is necessarily subjective. I suppose one could systematically review teaching evaluations, bar exam results, etc on the basis of prawfs' practice experience, and that would be very interesting. But also problematic, as proxies for "success" in teaching are difficult to assess. And Tamanaha's statement is only true all else equal. But that's rarely the case, and when it's not, how should faculties value the trade-offs?

Which is why this entire debate is a side show to the broader trifecta of employment transparency (which is getting better), ABA accreditation imposing uniformity on law schools (will this ever change?), and federal subsidies for law school loans that shift risks to taxpayers from students (ditto). Without these deleterious factors, the subjective views on these questions get aggregated and subjected to a worthwhile market process. Do employers value clinics? Jd/PhDs? 20 years of practice experience? We'd soon see. Until these changes, we'll almost never get any determinacy on this debate.

Posted by: Malaise | Feb 14, 2013 6:57:44 PM

There is no obvious reason to imagine that somebody who has practiced for many years would make a good teacher. I suspect that the practitioners who criticize professors who haven't practiced are basically lawyers who would love to get a teaching job (and have likely tried) but can't get hired so rather than admit their own deficiencies criticize the hiring approach.

Posted by: Senior Prof | Feb 14, 2013 8:09:06 PM

Senior Prof. People who are successful practitioners generally make far more than profs. Why would they want the huge pay cut? There's no evidence that profs would be successful practitioners.

Posted by: Abcabc | Feb 14, 2013 8:19:49 PM

"There is no obvious reason to imagine that somebody who has practiced for many years would make a good teacher."

There is is no obvious reason to imagine that somebody who has been on law review, clerked for a year, and practiced for one year would make a good teacher. However, there is reason to think that someone with expertise in a practice area would be better at teaching that area than someone without that expertise.

Maybe someone more familiar with the hiring process can speak to how schools predict who will be good at teaching, but from the outside it appears that schools are mostly concerned with looking for signals that the professor will product scholarship. When I applied for a job teaching with Kaplan part of the interview was presenting a short lecture on the topic of our choice. But, that's a part time test prep gig; I'm sure six-figure tenure-track jobs in a professional graduate program do something more sophisticated.

Posted by: Derek Tokaz | Feb 14, 2013 9:02:20 PM

Scott Fruehwald,

Your argument proves too much. No one in ANY discipline -- except, of course, education -- has extensive training in teaching and learning. Sure, a newly minted Ph.D. may have a few semesters of teaching under her belt. But that simply gives her a head start on teaching experience; it does not mean she actually knows what she is doing. And, yes, I have been to conferences on teaching, and we have had some of the usual suspects visit our school to give hour-long presentations on learning styles and so forth. And when I go back and talk about it with my wife -- who has a Ph.D. in Education -- she smiles sweetly and tells me how cute it is that we think that we can even approach in a two-day conference or a lunchtime presentation what took her four years of coursework (including her masters) and two years of laboring over a dissertation. Yes, we can go to conferences on teaching and read books about it, but we shouldn't fool ourselves into thinking that this provides anything more than a pretty superficial grasp of the art of teaching. And unless we start requiring that university teachers in every field acquire at least a masters in Education, there simply is no other way.

Posted by: Michael J.Z. Mannheimer | Feb 14, 2013 9:09:54 PM

1) Law firm partners as a group are notably bad teachers; I'm not sure why taking them out of the firm and putting them in a classroom is going to solve that issues. Okay, there are some structural issues related to law firms that that exacerbate the "mentorship" issues at many of them, but still: practicing law does not convey the ability to teach the practice of law by itself. I think that a big part of the question is, like Michael above me says, is training professors in pedagogy rather than it is practice experience.

2) I'm skeptical that more practice-oriented training in law schools would have a huge impact on the job market for new lawyers. And while that's not everything, it does seem to be spurring a lot of the discussions about why we should reform the law school curriculum, and so is worth examining more carefully. The refrain we often hear as evidence is "but look at Biglaw clients - they refuse to pay for first year associates; they know they're useless." But, in my experience, the issue is actually the way those firms use those associates, which is to do work a paralegal could do - they're told to spend hours and hours making sure every citation in a draft is correct before sending it to the partner, for instance. Of course that makes their billing time look ridiculous and of course clients don't want to pay for it; but it's not about the associates themselves. Anecdotally, I'm a lawyer at a mid-size firm with far, far more cost-sensitive clients than most large firms have. And we don't have an issue billing the time of our new associates to them because we ask - and get - real legal work from them.

3) And yes, that legal work that the new associates tend to do is heavily research and writing, as someone pointed out above. But so what? That's useful and important work that can be done while other skills are picked up through practical experience. I do think it's good for students to be exposed to lawyers with significant practice experience, through clinicals, regular classes, and seminars. I'm not convinced, however, that making sure everyone teaching Torts or Con Law had a ton of practice experience would do much. Drastically reducing class sizes would, but if that means raising tuition yet again, that strikes me as a far bigger problem for most new lawyers than the current quality of their education.

Posted by: KM | Feb 14, 2013 9:28:11 PM

Thanks for all the many great comments. Sadly, I don't have time to respond to all of them. So I'll respond to Professor Tamanaha. My post makes a simple point: for large and doctrinal classes, the amount of practice experience one could actually deploy is relatively small, and can be picked up even by those who haven't practiced. I'm not sure why Professor Tamanaha would saddle me with a rubbish argument about non-practitioner's being inappropriate for clinical classes, and then point out it's a rubbish argument. That move seems a tad unfair. The part of his book I was quoting nowhere refers to clinical practice. He concedes that "there are also a bunch of classes for which practice experience makes little or no difference": these the sorts of classes *I was* highlighting. So I think we're in agreement on that one.

On the other hand, I don't think that having practice experience necessarily makes a professor a great teacher. In classes in which the opportunities to talk and model practice are limited, then what matters is that the professor is a good teacher, rather than that the professor has had practice experience. I'd hope Professor Tamanaha would agree to that one, too. For some, like Professor Tamanaha, having practiced makes them a better teacher. But I'd suggest that the claims Professor Tamanaha makes in the book—in the sentence I quoted and the surrounding paragraphs—are supposed to apply more generally to all of us than just to himself. So I'd suggest he's engaging in a little false modesty here about the intended scope of his argument.

So a lot turns on what we mean by "training students for legal practice." Given the malleability of practice, it is possible that we are talking past each other here. Again, the context in which he used this phrase in his book seemed (to this reader at least) to be broadly inclusive, and so apply to the large doctrinal classes part of the ones suitable for training people for legal practice. And, as he concedes, for these classes, it's at least plausible that others are great teachers without having practiced. It's also plausible that for some, practice experience doesn't not make them a better (or worse) teacher. It's a small point, but given some of the comments in the thread, a controversial one nonetheless.

So what my post amounts to is this: practice experience is not necessary for some classes, where the opportunity to engage in that sort of experiential learning is small. Being interested in how the doctrine affects practice should inform all our teaching. There is nothing about having an academic background that precludes that sort of interest. So for a range of classes, including many of the large, core classes, practice might be useful, but being a good teacher (which need not require practice) is the gold standard. For other classes—and certainly clinical and skills classes—practice *constitutes* what makes one a good teacher. But just as the range of subjects and styles of classes in every law school are plural, so are the styles of teaching and the sorts of things different teachers bring to the classroom.

Posted by: Eric J. Miller | Feb 14, 2013 9:39:00 PM

Anyone who has done big law CLE can confirm that practice experience does not correlate with teaching ability. Just more anecdotes.

Posted by: Anon | Feb 14, 2013 9:40:06 PM

Eric J. Miller wrote: "My post makes a simple point: for large and doctrinal classes, the amount of practice experience one could actually deploy is relatively small, and can be picked up even by those who haven't practiced."

I feel that, 19 comments later, you've moved the goal posts. Not one of the commenters understood you to be discussing the teaching of doctrine in large classes. Indeed, the second statement in your carefully written statement of the argument was: "Practice experience is required to train lawyers how to practice." Note: "how to practice."

Now you tell us you weren't discussing "train[ing] how to practice"; you were discussing the teaching of large classes devoted to doctrine.

Posted by: John Steele | Feb 14, 2013 9:58:11 PM

John, what did you understand this sentence to mean in the original post? "I'm assuming that we're talking about who is teaching the black-letter law classes, and how they ought to do it."

Posted by: Bruce Boyden | Feb 14, 2013 10:39:26 PM

"So I'll respond to Professor Tamanaha. My post makes a simple point: for large and doctrinal classes, the amount of practice experience one could actually deploy is relatively small, and can be picked up even by those who haven't practiced."

Why are "large doctrinal" classes even necessary? In the actual practice of law, no one relies on what they learned in large doctrinal classes. Large doctrinal classes are basically useless - too general to be applicable, to out-dated by the time you need them for the actual practice of law, and often not even specific to the whatever jurisdiction I'm in. Perusing Lefevre's TOC or Index has been far more helpful to me than anything I learned in the Crim Pro class I took on the Fourth, Fifth, and Sixth Amendments.

"Being interested in how the doctrine affects practice should inform all our teaching."

And this is the problem. Because you haven't practiced, you overvalue doctrine. Doctrine is easy to each if you have no practical experience. Doctrine is also much cleaner than actual factual issues in the real world. But doctrine actually plays a shockingly small part of the actual practice of law. It's not completely irrelevant. But not very important. And they way it's taught in doctrinal classes makes the classes useless.

Posted by: Abcabc | Feb 14, 2013 10:53:27 PM

Lafave not Lefevre

Posted by: Abcabc | Feb 14, 2013 10:55:00 PM

"Lafave not Lefevre"


Presumably that's one of the things you learned perusing the TOC.

Posted by: Orin Kerr | Feb 14, 2013 11:00:37 PM

(Oh, and more seriously, abcabc, whether doctrine plays a large or small part of the actual practice of law depend on what kind of practice you happen to have. Lawyers have an extraordinarily diverse set of different practice experiences. Some people have practices that are all about doctrine; others have practices that don't require much doctrine at all. It all just depends on what kind of practice you have.)

Posted by: Orin Kerr | Feb 14, 2013 11:06:41 PM

Going to Orin's last comment, is it perhaps time to split legal education (and licensing) into different fields? We have an education designed to train generalists, when the profession has increasing demand for specialists. This may be especially true when it comes to skills training, not just black letter law classes. Everyone learns how to search for appellate cases on an issue and how to Shepardize and what the different colored flags mean, but you're much less likely to learn how to research and interpret SEC No Action Letters.

And yes, I know there are a great many generalists, and there will always be a need for them, especially in rural areas, but that could be its own track for people who intend to pursue that kind of practice.

One tremendous side effect of splitting law into different tracks, and something that's been a pet issue of mine, is that it would require more thought on the part of prospective students. It's harder to go to law school with no direction when schools start by asking you to pick a direction. Getting the right people going to law school for the right reasons will make grads, employers, clients, and even professors happier.

Posted by: Derek Tokaz | Feb 14, 2013 11:49:39 PM

As a historical note, when Langdell invented the globally anomalous form of American post-graduate legal education he was explicit that professors should not be drawn from practice - as this was not akin to the scientific production of legal knowledge. There was a diversity of school models prior to the general ABA hegemony, many followed the models argued for today of practitioner/adjunct-led schools. They did not survive for a number of reasons, mostly related to the cartel function of the ABA. Quality of classroom teaching was never, ever the driving criterion in the success of any law school.

The seriousness of this debate from an academic point of view is made clear in the self-referential and anecdotal mode of assertions without any systemic historical or comparative content - all of which is actually available online. People have even written articles about such things before. But then again blogging is actually considered in law school tenure evaluations.

It all comes down to the continued tension of the trade v. academic model of law as a discipline. It's really only coherent to have law as an undergraduate degree followed by either a PhD for academics or differentiated training in trade schools. Some countries even require specific training to be a judge. Imagine that. The American model as it stands is just a muddled mess. Clerkships are meaningless to skills training or academic research. Student edited law reviews the same. Everything that the "traditional model," that is really only the model of the mid to late 20th century, values is neither her nor there for being a "professor." But path dependency is hard to uproot.

Posted by: moreresearchlessspeculating | Feb 14, 2013 11:52:06 PM

Derek, instead of splitting legal education, how about a system in which students get a general grounding in the shared roots of the law and then can choose whether to specialize? Some can specialize by taking lots of courses in a specific area. Others can try a bit of everything and can stay a generalist. It seems to me that this is a pretty good way to respond to the diversity of legal practices. (It is also the current model of legal education, with a set 1L curriculum and then electives for two years.)

Posted by: Orin Kerr | Feb 15, 2013 3:09:32 AM

I am a fairly recent grad, and a solo practitioner. I would like to humbly share a bit of my law school experience with you guys.

I was fortunate enough to have several great professors. I actually enjoyed my 1L Property class, for instance, because the professor was entertaining and had a sense of humor. All of my classmates loved him, and he had excellent end-of-the-semester reviews from many years of 1Ls. I also had a great Civ Pro professor, who managed to breathe life and passion into an otherwise dry subject.

Nevertheless, the classes that I derived the most actual benefit from were practical classes. I remember taking Civil PreTrial Litigation, and having to argue a demurrer in front of the professor. This guy was an adjunct, and a well-respected local practitioner. I remember my knees knocking together, because I was afraid to stand up in front of the class and argue. I also remember going to his office hours, and discussing with him what I could have done to improve. This was very useful to me as a kid law student.

I also remember a clinic that I took, and a custody case I had to argue. This was a real judge, and my knees were once again knocking together a week before the actual argument. I remember that my clinical professor, a woman who practiced family law for a few years, taking the time to go over my argument, grilling me on the facts of the case, and telling me what to expect. That was very useful to me, even though I was still scared in that courtroom. The opposing counsel was a grade-A asshole. I remember doing a post-hoc analysis with my professor. She told me that I shouldn't pay any attention to opposing counsel playing asshole in the courtroom. She said my audience is the judge, and what I need to do is state my case confidently and respectfully, and be prepared to answer questions. This was very useful to me.

A few years have gone by, and my knees don't knock together anymore. When I look back, the most valuable experiences in my law school days were these one-on-one conversations that laid the foundation for my ability to show up in court and argue a case. Of course, I learned almost everything "on the job" - i.e. by doing. Still, these experiences were important because they made me believe that I can do what lawyers do - study the facts, study the law, and show up to court and do my best.

Posted by: GIGS | Feb 15, 2013 6:06:20 AM

Orin,

I suppose the best response to your question would be to ask why ought lawyers be required to study the "shared roots of the law?" I understand there is some appeal in having all members of the profession be familiar with the basics of several areas of law, but this seems almost a bit vain, and I'm not sure in what way clients are served by it. I don't see much evil in a transactional lawyer saying that questions of search and seizure or the dormant commerce clause are outside of his expertise.

On the other hand, there may be a great deal to be gained by splitting off different practice tracks. If the 1L curriculum for a transactional attorney replaced torts with corporations, criminal law with corporate finance, and property with tax, the upper level electives could be considerably more advanced. Indeed, NYU has recognized this, allowing students to take in their first year an elective that generally serves as a prerequisite to advanced classes (I believe the options are tax, corporations, and international law). However, even at NYU there is no option to take a Lawyering class where the large end of the year project will be anything but an oral argument. I don't recall any of the writing assignments being an internal corporate memo.

Pulling the camera back a little bit, I believe there is another important question here: Should every school require a generalized first year curriculum? I would have no objection to some schools keeping the current model, but why not allow other schools to experiment with a narrower focus?

Posted by: Derek Tokaz | Feb 15, 2013 7:11:24 AM

Derek -

Small note, but I think that--apart from the skills associated with the process of learning different subjects--your examples of what a transactional lawyer needn't know anything about seem weak. This is especially true of the dormant commerce clause. A is thinking about buying business B, which is the subject of a proposed (protectionist) regulation in a given state. If the regulation issues and is valid, the value of business B is substantially diminished. what to do? Well, a transactional lawyer who has studied the dormant commerce clause would be in a position to spot a possible issue that affects the value of the transaction in a big way. Sure, he or she would then have to do research or ask for help from someone else. But the transactional lawyer who never studied the dormant commerce clause might not even know to look at the problem.

As for the fourth amendment: many transactions can be subject to regulatory review, including sometimes through the use of administrative searches/subpoenas. Knowing the terms of a possible investigation helps you understand what to be careful about.

Posted by: anon | Feb 15, 2013 8:40:38 AM

I practiced for a relatively long time for one who teaches - a bit more than a decade, much of that time as an equity partner in a major firm - and I've also observed other long time practicing lawyers who end up in the academy. It will come as a surprise to no one who is thoughtful that having practiced can, indeed, be helpful, but it is no guarantee and can be a pitfall for some.

First, the obvious point - teaching law and practicing law are two radically different jobs, requiring quite different skills sets. There is some overlap - it helps in both settings to be comfortable talking on your feet, to be able to digest masses of complex material and make it all comprehensible, and so on - but in the end we're talking two different sets of competencies. Of course, writing great scholarship and teaching are also two very different skill sets.

Where I have found practice helpful is that it provides me some information - not all the needed information, as we are all captives of our own particular experience - but some meaningful information about what tends to matter in practice. I'm acutely aware, for example, that in the average case the lawyers are jockeying primarily for settlement leverage, as only the exceptional case goes to trial. I'm aware that, as a result, it usually doesn't much matter that you can appeal something, because unless you are willing to go to trial to preserve the appellate issue it's all going to go away in the settlement. I'm aware that in many cases the legal issues are pretty pedestrian, and the major effort goes into finding and dealing with the facts (which, one also learns in practice, do not come neatly set out in a preamble, but are subject to being shaped). Some of the rules of civil procedure look different if you view them through the prism of negotiation as opposed to the prism of trial preparation. I'm also, I think, much more attuned to the costs of litigation, and how that distorts everything. Again, last but not least, I understand that civil litigation tends to be driven not by a quest for justice, but by money. I think understanding where the pressure points are in typical cases helps me focus class time more effectively on what matters (for example, teaching in China, I want my students to understand that personal jurisdiction is not an abstract game, but will have direct impact on whether any Chinese clients are subject to the substantial financial burdens of the US discovery process).

That said, none of this is news, and plenty of professors who have not spent much time in practice know all those things as well as I do. Those professors, and I think it is many but by no means all, who want to understand what their practicing peers do can get a pretty good idea by asking and listening.

I think my experience in practice can matter not just to teaching, but also to research. While I think that, on average, legal scholarship today is much more interesting than it was when I was a law student many years ago, some of it also suffers from a lack of awareness of how things actually happen. In order not to make myself a total pariah, I won't cite examples, but I've read articles in some pretty good law reviews that would seem catchy and even sexy to those unfamiliar with actual practice, but that were good for a laugh if you had actually seen the world they were attempting to describe. At times, some scholarship puts me in mind of medieval geographies written by experts who had never left home.

OTOH, while I don't think that having practiced has been a trap for me, I think it can be. First of all, some former practicing lawyers seem to think that the practice they had represents something typical. No matter what you did, whether it was big law or being an AUSA or handling immigration matters, it's not typical of most practices. I didn't know when I practiced what I would need to know to do criminal law or a small town generalist practice, and I don't know that now. I know about as much about traffic court or landlord tenant court as I know about tribal dispute resolution in Kazakhstan. My knowledge in those areas is just as vicarious as that of those who have never practiced. I find it important to remember that.

It's also important to understand that what you know from practice is not enough. I think some of the best professors are those who make meaningful connections between life in the trenches as they saw it and the larger issues facing the profession, but I also think some of the worst are those who think they can just show up and tell war stories.

My sense is that the academy would be best served by having a bit more of a mix on the typical faculty. I think some of the Ph.D.s would be helped by being able to test their insights against those who have had boots on the ground, and those with experience may be less likely to be trapped by their experiences if they are linked to the most active academic scholarship.

Posted by: Ray Campbell | Feb 15, 2013 9:05:19 AM

I just pulled my transcript to look at all the professors who taught me during law school; of the ones who were clearly the best, none had more than three years' practice experience. That doesn't mean that law faculties should reject candidates with practice experience; indeed, I probably come down with Ray Campbell in thinking that the best faculty would include a mix of people with different experiences. But some commentors here are beginning with the assumption that lack of practice experience equals bad teaching, and I'd like to see some evidence to back that up.

Posted by: anonprof06 | Feb 15, 2013 9:27:01 AM

Eric,

These are two different propositions:

"Academics Who Have Not Practiced Cannot Teach Lawyers About Law"

I do not accept this proposition. I have never expressed this view. And you cannot fairly characterize my position in these terms.

“It is questionable whether a professor with little or no practice experience is ideally suited to train students for legal practice.”

I do indeed believe this is true, for the reasons I explained. I carefully worded this sentence (and rewrote it several times) to add crucial qualifiers: "ideally suited"--"to train students"--"for legal practice."

As John notes, you have shifted the discussion away from this to doctrinal courses, etc. This statement is about "training lawyers for legal practice." Let's focus on that.

It serves your desire to discredit my view by downplaying all these qualifiers, but that is what I wrote and it would be nice if you would respond to that position, not a phony position that you are laying on me.

Posted by: Brian Tamanaha | Feb 15, 2013 10:32:23 AM

If law schools are to become solely practice-oriented, then why should they be part of a university, with its academic mission? There are plenty of freestanding law schools that survive without being part of a university. But if they remain part of a university, they should share in the academic and research mission of the university. Even at tuition-dependent universities, (undergraduate) student money goes to "subsidize" faculty research, and I fail to see why university-linked law schools should not follow this academic/research-support model. If you want to be linked to a university, play by university rules and expectations.

Posted by: anon | Feb 15, 2013 11:00:29 AM

Bruce asks, "John, what did you understand this sentence to mean in the original post? "I'm assuming that we're talking about who is teaching the black-letter law classes, and how they ought to do it."

I understood him to mean what he said multiple times and what was said in the quote from Brian Tamanaha that he set up as the counter-argument -- how to "train lawyers how to practice" (Miller) and how "to train students for legal practice" (Tamanaha).

My position is that you don't need to be a practicing lawyer to teach someone black-letter doctrine. You don't need to be a law professor. (You might not even need to be a human being. Lots of doctrine can be taught with well designed software.)

Also, strictly speaking you don't need to be a current or former practicing lawyer to teach someone to practice law -- but for that you do need to immerse yourself in practice one way or another. Or, more simply, “It is questionable whether a professor with little or no practice experience is ideally suited to train students for legal practice.” Brian Z. Tamanaha, Failing Law Schools (2012).

Posted by: John Steele | Feb 15, 2013 11:29:53 AM

Derek,

There are three serious problems with a truly split approach to legal education, in which transactional lawyers only take classes directly about a transactional practice, etc.

First, entering students don't know what specialty they will have, or where the jobs may be. For example, about a third of entering law students nationwide believe that they want to practice international human rights law. If they went to international human rights law school, and only learned those subjects directly related to international human rights law, they would have a hard time finding jobs in other areas of law when they graduated and realized that there are about 6 international human rights law jobs in the country. Further, with legal practice, you can't know what you will like before you try it: How could students pick a specialty if they can't know what they would actually enjoy? And what happens if their chosen specialty area dries up in the middle of their careers?

Second, in my experience law practice is a lot more integrated than you're suggesting. Legal issues don't come in tidy doctrinal boxes. Spillover is everywhere, with each legal problem seeping into multiple fields at once. A good lawyer sees all the boxes and all the fields at once to know how to advise their client. They won't be an expert in everything, but they'll be familiar enough with different fields to flag potential issues and take a closer look. A lawyer with a broad background is very likely to be a better lawyer than a lawyer with a narrow one.

Third, what about the bar exam? I would think that under a truly split approach, you would have to replace the bar exam with the speciality bar exam -- one bar exam for transactional lawyers, another for criminal lawyers, etc. -- or get rid of the bar exam altogether. Neither seems like a realistic option.

Posted by: Orin Kerr | Feb 15, 2013 11:42:34 AM

We need to take the debate away from gross generalizations about law professors and their backgrounds. There are about 200 law schools, and hiring practices are hardly uniform across the academy. At my school there is a wide range of practice experience among my colleagues, from none (hiring onto full-time law faculty from a clerkship or graduate degree or VAP program) to extensive, including some who were senior partners with decades of practice experience, prior to joining the academy full-time. The variety of ways people come into legal education today make these gross generalizations about the backgrounds of today's law professoriate frustrating to read.

Then there are generalizations about the qualifications of full-time legal academics to prepare students for practice. Many of these seem to be derived from the same generalizations about the pre-academic qualifications of the professors. I practiced for five years before joining the law faculty and I have emphasized practice issues throughout my teaching career, in first-year Contracts and Torts as well as in my elective labor and employment law courses. I use a client-centered case file method to teach Contracts, and occasionally I run into alumni who tell me that they thought the course was very helpful in orienting them for practice. I also use teaching assistants in the large course to provide individualized feedback to students on writing assignments. (I make three assignments per semester, in the form of an internal law firm memorandum to a partner on a client problem.)

I've chaired our faculty appointments committee off and on over the past twenty years, and in my experience we have always been interested in the past practice and teaching experience of our faculty candidates, and we have rarely hired anybody for the full-time tenure track or long-term-contract faculty who doesn't have some practice experience or teaching experience. We also restructured the first year curriculum to include a two-semester Legal Practice program taught by full-time faculty all of whom were hired with practice experience. I suspect similar developmens are true of many law schools today, although an empirical study (rather than generalizations by current critics of law school based on their experience as students decades ago) would be welcome.

Posted by: Art Leonard | Feb 15, 2013 12:02:14 PM

I'm not sure that this line of discussion gets to the heart of the matter. I start with the premise that professionals tend to do what they are rewarded for and that professors are professionals. Regardless of the value of past practice experience or the faculty's good intentions, I do not believe that law schools are in the business of compensating professors for teaching. From the outside, it appears that professors are primarily paid to write articles that get cited, not to teach. On a long enough time horizon, wouldn't this tend to create a faculty pool that is good at writing articles that people will cite? And isn't this a huge part of getting tenure? The economist in me believes that, consciously or not, people do what they are rewarded for doing. It does not appear to me that professors are rewarded for effective teaching. Fundamentally, then, the problem is with how law schools are administered, not with the professors, their background, or their intentions. As a result, I'd expect that variables like practice experience and the buffet of available classes will have only minimal effects on the overall quality of legal education (at least within school peer groups).

Posted by: AnonymousJD | Feb 15, 2013 1:21:25 PM

It's also important not to lose sight of the fundamental disconnect between the "quality" of law school instruction and job opportunities that follow. Even if we could agree on what sort of person is most qualified to teach law students, such instruction would not lead to jobs in a saturated market.

I think the attack on professors' competency to teach, at least as it comes from the scambloggers, is more of an attempt to remind professors of just how lucky they are to have their student debt-funded jobs. These are high paying jobs for which they are not particularly well-suited or qualified, and so they should be grateful. And you should demonstrate that gratitude by contributing to the reform movement.

Posted by: Steven | Feb 16, 2013 6:39:34 AM

A few points. First, any relatively senior partner spends much of his time teaching - clients, associates, junior partners, peers, judges, juries - it is part of the job description of almost all good lawyers, which is why senior lawyers for example in Japan are always referred to as "sensei."

Second, if senior legal practitioners have a weakness, it is there tendency to be most knowledgeable about those things they do regularly - so IP lawyers know about IP, but not much family law, etc. This does tend to undermine their teaching ability outside that specialty.

Third - and significantly - to the extent that so many professors are engaged for the vast majority of their time in so called scholarship, typically a carefully segmented area of largely irrelevant study to the practice of law, those professors have EVEN LESS broad based knowledge of the law than legal practitioners. In short, for most professors their scholarship undermines their abilities as educators.

Fourth, it is pretty axiomatic to most lawyers and economists that people do what they are incentivised to do. In law schools there are few incentives to teach - but a lot of incentives to write tosh (sorry scholarship) - little surprise that law professors are poor teachers - there are few rewards for teaching.

Posted by: MacK | Feb 16, 2013 7:38:02 PM

"Second, if senior legal practitioners have a weakness, it is there tendency to be most knowledgeable about those things they do regularly - so IP lawyers know about IP, but not much family law, etc."

One of the things that should not have surprised me, but did, when I started teaching was how little I actually knew about the areas where I had practiced. Put differently, I knew aspects of civil procedure in much more depth than would ever be taught in a course (say, issues relating to defeating class certification in a given circuit) but across the whole syllabus there were areas I had not thought much about since law school or clerking (say, fee shifting in civil rights cases or the technical rules of pleadings). Part of my ignorance flowed from not ever having those issues come up in my practice, but part of it came from the rules in an area (say, pleading pre-Twiqbal and even today) not really being the driving factor. In putting together a complaint, for example, the practicing lawyer's concern in most cases probably won't be "how little will the rules let me get away with" but rather "how do I balance selling the judge on my case with showing more of my hand than I want to at this stage?". Having practiced gives me insights that I otherwise might miss, but I still had to do a lot of learning to be able to teach.

I think I'm pretty typical in the spottiness of my practical knowledge, and I think this matters to the debate. The established case book curricula are artificial constructs, and in no way track the actual operative decisions faced by practicing lawyers. Setting aside whether that should be addressed, it leaves a situation where anyone who teaches will have to learn enough material to cover the entire syllabus, and it's quite unlikely that they've got practicing experience in all of it. That does not, in my experience make practice experience irrelevant (students should know, for example, that a well crafted complaint will take into account issues other than satisfying the rules) but maybe it casts it in a different light.

Posted by: Ray Campbell | Feb 16, 2013 8:15:19 PM

Ray,

That teaching law requires broad based knowledge of the law is quite likely the most valid criticism of the idea that practitioners could just go out and teach law - but, the problem is not redressed by the typical scholarship driven ,aw professor - if anything they seem to have an even narrower knowledge base.

My practice area is somewhat esoteric ( and hence well paid) and mingles all sorts of law - a lot of intellectual property, competition law, civil procedure, non-US procedure, contract law, employment law (in many countries - but in broad principles), etc.. However, my knowledge of say family law is nearly nonexistent, criminal law is highly dated and not that developed - and I spend a lot of time considering details of how semiconductors are made and work, ELISA tests work, big data, etc.

Frankly I think big courses need to be taught by dedicated law teachers who can impart comprehensive knowledge of say contracts - but few professors seem to fall into that category. The subjects that the pure law teacher should be teaching bore most law professors (at times it seems that the law bores most law professors), while more specialised subjects probably shold be taught by practitionersor people with substantial practice experience - as should evidence, civ pro, etc.

Meanwhile, one thing law schools should swear off hiring for a decade or two is any more Constitutional Law scholars, 1st Amendment scholars, etc.

Posted by: MacK | Feb 16, 2013 9:26:49 PM

I have been in academia for almost two years after having spent 21 years in practice consisting of a clerkship, practice in two big firms and then 12 years in house culminating in a deputy GC/compliance officer position. I was told when I was entering academia that I would never get hired because I had too much practice experience. Although I have practiced employment law since 1996, the way I teach employment law today with the benefit of my in house experience dealing with issues in over a dozen countries, managing outside counsel and class actions and dealing with a number of government agencies is very different than I would have taught it in 1999 with only 3 years of employment law experience. Although I had worked as one of a fleet of associates on commercial litigation matters and occasionally helped on corporate matters (doing grunt work) when I first graduated from law school, my corporate governance students gain from the experience I have setting up compliance programs, working with audit committees and meeting with the SEC. Everyone doesn't need 20 years of experience to teach and I know a lot of partners with 20 years of experience who couldn't teach and wouldn't want to teach. But as a newbie professor, I know my students enjoy learning about executive compensation by looking at a proxy, a compensation consultant report, law review article, ISS proxy advisory report and You Tube video on exec comp trends in addition to reading the Disney case. I would never know how to bring these issues to life with only two or three years out of school working at a big firm or though a clerkship. 21 years of life experience also made me a better professional responsibility professor. And since I continue to consult for small businesses, start ups, nonprofits and foreign companies, it keeps my skills fresh and provides additional real world information for my students. My students have told me that they very much appreciate it. As for the scholarship, can/should professors write articles that are more "relavant" to practitioners and judges? It depends on whether that's the audience. I don't know that this will ever change as long as law students without the benefit of real world experience are making the decisions. To some extent the reason people go into academia is to have the freedom to think and write about what they choose. Since I'm new to this I will only say that I agree with the earlier comment that a lot of scholarship does not bear enough of a relationship to what is happening in the real world to be useful to those outside of the academy. But if that's what it takes to get tenure, then that's what professors will continue to produce. I'm just glad to be in academia and to be able to blend the theory with the practice and hopefully I am giving my students value for their hard earned (or borrowed) money.

Posted by: Marcia Narine | Feb 18, 2013 11:11:28 PM

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