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Thursday, February 14, 2013

Prawfs in Practice

Just when I decide to write a post on whether and to what extent law professors should have practice experience, Eric Miller beats me to the punch.  Dagnabit!  (Since a commenter on a previous post of mine complained about the potty mouth, I have decided to adopt the persona of a cartoon version of a nineteenth-century prospector).  Well, there are some things Eric didn’t cover, so let me give it a go.

First, I disagree with the premise that a significant number of law professors have no practice experience.  At the least, no one has shown me data that would suggest as much and my experience has been to the contrary.  I'm pretty sure that every single person on my own faculty has spent some time in practice.  Virtually everyone I know through AALS has practiced (perhaps everyone; I really don’t feel like taking the time to think of everyone I know through AALS to see if there’s even a single person who has never practiced).  Of course, I’m not at an elite law school, and I don’t generally pal around with those who are.  But I  attended a law school that might reasonably be called elite – why, some say it’s the second best law school in Manhattan!  And I can’t recall a single one of my profs who never practiced.  Sure, some of them practiced during the New Deal, and that might raise a wholly different issue.  But the idea that there are oodles of law professors out there who never practiced is a canard.

Once we expose that straw man, the real issues that are flushed out are what type of practice is ideal for a law professor and for how long.  I’d say clerkship experience, followed by two years at a big firm, followed by five years doing criminal appeals.  And they must have red hair.  But, seriously, it seems that the main point of disagreement is whether the 3-5 years of practice experience most newly-minted law professors have is enough.  I’ve heard the argument made, from members of my own faculty on occasion, that 10-15 years of experience practicing is ideal.  That is to say, one must have reached “partner level” and practiced at that level for some significant amount of time for one to be the ideal teacher.  It seems to me, though, that, while some practice experience generally makes one a better teacher, there is a point of diminishing returns.  Even after only five years of doing criminal appeals, I found that work was starting to get somewhat repetitive.  Sure, the legal and factual issues were different in each case but the daily minutiae of practice became second-nature.  I would imagine the same is true for many fields of practice, even general litigation.

More fundamentally, at least as I understand the argument, it contains an inherent contradiction.  The argument that a sustained level of “partner level” practice experience is ideal is premised on the notion that it simply takes that long to accrete the knowledge, skills, and judgment to really say that one has "practiced” law.  See, for example, this comment made to a recent post on this blog:  “[Y]ou haven't really practiced law until you've had primary responsibility for important client matters. You ran the deal, you took witnesses and made arguments in the big case, you discussed with the client the objectives of the representation and the fees - then you have something to teach about practicing law.”  But if it really does take that long for one’s practice experience to kick in and “count” for purposes of being able to train others, how on earth does one convey that training to others over the course of a fourteen-week semester?  That is, the argument must be that there is some ineffable quality to practicing at the level of partner that those of us who spent only a few years at a big firm cannot wrap our heads around; but then how can that ineffable quality be transmitted to second- and third-year law students?  One cannot, for example, just say to the students:  “Here’s how you `discuss[] with the client the objectives of the representation.’”  Being able to do that takes the judgment and the wisdom that come only with practice.  Indeed, that’s the point.

Which gets me back to a point I made in a previous post:  there are many, many aspects of practice that cannot be conveyed during the course of six fourteen-week semesters.  They cannot be conveyed whether one has practiced for three years or thirty.  They can be picked up only in practice.  After all, maybe that’s why we call it “practice.”

Posted by Michael J.Z. Mannheimer on February 14, 2013 at 10:33 PM | Permalink

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Comments

I propose a rule: Anytime someone writes about how much practice experience a professor should have, they should disclose how much practice experience they personally have.

Posted by: Orin Kerr | Feb 14, 2013 11:15:31 PM

Orin,

I did.

Posted by: Michael J.Z. Mannheimer | Feb 14, 2013 11:26:45 PM

Also, doesn't it depend on what exactly one is teaching? Just to compare my own courses: I draw a lot from my practice experience in teaching professional responsibility, obviously. Not so much in con law. Also obviously.

Posted by: Paul Gowder | Feb 14, 2013 11:46:07 PM

I did.

(Yes, I just meant that we should all follow your lead. Very good post, by the way.)

Posted by: Orin Kerr | Feb 14, 2013 11:52:17 PM

What is missed in the absence of practice is how practically the laws are applied. In immigration law, for example, you can study the historic cases, the theories, the INA, 8, 20, and 22 CFR and even read the memos published by the various agencies including the FAM, but unless you actually engage in practice you will not understand the interplay and the extent of force that these various sources of law actually carry. You would also not understand how inane is the usage that people should go to the back of the line or how the path to citizenship is not a straight shot from unlawful presence.

Furthermore, when discussing critical issues of development of the law, like comprehensive immigration reform, you would not understand (in the absence of practice) how much of what is being proposed does not really help those people who are IN line and having been waiting years to get their Green Cards legally.

Oh and I've been practicing immigration law for almost 10 years now.

Posted by: Adam | Feb 15, 2013 12:58:15 AM

I think one can be an effective law school teacher without ever having practiced law. You don't need to have practiced to understand and transmit doctrine, and you can even learn a lot about what is involved in practice vicariously.

At the same time, as one who did practice for a while (a bit more than ten years, in big law, much of that as an equity partner) if you are purporting to teach what's involved in "the practice of law," yeah, it helps to have practiced law. It depends on the individual and the nature of the practice, but typically it takes more than a year or two to really internalize what the practice of law involves. There is a point in practice when you aren't answering legal issues or performing narrow assigned tasks, but are solving client problems. If your 'practice' has involved writing research memos or sorting documents, you haven't reached that point. To the extent you see practice as being about doctrine - as opposed to seeing doctrinal skills as one important tool in a much bigger toolbox - you really haven't completed the transition from law school to practice. It seems like a stupidly simple point, and yet I still see comments from professors that reveal that they expect that the practice of law is pretty much about applying legal doctrine to known facts.

Posted by: Ray Campbell | Feb 15, 2013 9:42:43 AM

Very good post.

It seems to me uncontroversial that professors with significant and diverse practice experience can add something to the classroom training that students receive as compared to a professor without that experience. But the argument is often made in a way that implies practice experience is a sufficient condition for a good professor, and not just a desirable addition. Practice experience surely cannot substitute for a genuine interest in and skill for teaching.

If I had to line up all the professors I had from best to worst, the best would not receive their ranking because of their practice experience (although many would have significant experience). Rather, they were the best because they were good teachers. And a number of those at the bottom would be those who were great as practitioners, but who lacked the ability to convey their experience (or indeed, anything else) to the class in a meaningful way.

Posted by: Tyler M. | Feb 15, 2013 10:34:56 AM

What about the importance of law professors engaging in CONTINUED practice while professors, for two reasons. First, practice skills get rusty without use, and second, the relevance of practice experience before becoming a law professor diminishes with time. Certainly, great talent at cross-examination 20 years ago still applies today, but technological advancements (use of ELMOs, sentencing videos, etc.) and new knowledge (see NAS report on forensic sciences) changes the nature of practice, so that those five years of practice before you became a law professor apply less and less over time. I.e., the post, "Prawfs in Practice" maybe ought to mean law profs continuing to be in practice (in some way commensurate with their obligations as professors).

And I have five years practice experience.

Posted by: Steven R. Morrison | Feb 15, 2013 1:26:34 PM

Just as a question of fact, I thought I had read that new hires to tenure track positions have a median experience of practicing of just one year -- but I cannot find any source to support that. (I'd expect that among professors in their 40s-50s-60s the number of years of practice would be higher.)

Does anyone know the stats at the margin? My intuition is that the trend started veering toward less experience just as tuition was building and the expected economic return of a JD was crashing.

(Given that I don't propose that a professor must have any particular amount of practice experience, I am exempt from Orin Kerr's rule.)

Posted by: John Steele | Feb 15, 2013 2:10:12 PM

Dear John,

I think that claim comes from a study by Brent Newton that appeared in the South Carolina Law Review. There are some concerns about the methodologies used in that study, but it supports the general point you are making.

Posted by: Milan Markovic | Feb 15, 2013 2:39:49 PM

Milan, thanks I found it in Newton's article.

Fwiw, "For instance, for the schools in tier one, the median was only 1 year and the mean was 1.79 years; 45.6% of the entry-level tenure-track professors hired by these schools since 2000 had no prior practical experience. Conversely, for the schools in tier four, the median years of prior practical experience was 6 years and the mean was 7 years; nearly 86% of those professors had some amount of prior practical experience."

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1706051

Posted by: John Steele | Feb 15, 2013 2:55:48 PM

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