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Monday, February 11, 2013

The False Dichotomy Between Practice (Doctrine) and Academics

I've made the argument in previous postings that interdisciplinarity is necessary to understand low-level courts.  But I also believe that interdisciplinarity is an essential party of *any* law school education, elite or *non-elite*.  That’s why I’ve been so disappointed by some recent attacks—in the name of educational pluralism or practice-readiness—on interdisciplinary approaches to law as so much academic self-indulgence by faculty.  The idea appears to be that there is a dichotomy between what lawyers need to know and what "academics" teach, and that often rides on the back of an argument that what "academics" teach is fit only for those folks at the top law schools who want to become academics themselves.  I think this is a false dichotomy, and it shows a profound ignorance of much of legal practice, and certainly practice in lower courts or the non-elite end of the spectrum. 

I do *not* propose some simple reorientation in the hierarchy of value between doctrine and “academics” (especially interdiscipinarity), one over the other.  Instead I believe that a legal education that is practice focused must recognize that practice is now, in important ways, interdisciplinary *top to bottom* and that academics and doctrine interpenetrate each other.  Saving “academic” stuff for the top just perpetuates a unitary understanding of legal education phrased in terms of either/or, elite/non-elite, academic/non-academic, to the detriment of both students and practice.

My worry is that much of the good done by the recent demands to rethink how law schools deliver education and at what cost is lost by attacks on faculty at non-sweet-14 (or top 20, or top 50) law schools as out of touch, sybaritic free-loaders who belong in other university departments.  The argument that I’m calling elitist suggests that only top law schools—the schools producing academics—can afford academic indulgence.  The rest of us ought to be producing doctrinally oriented lawyers, and work that lawyers can cite.  So only folks at certain locations—in the desks or behind the podium at elite law schools—should be consuming or producing academic work, which will then be reproduced outside the law practice world.  And this kindly advice—focus on your students and on the practice, not on yourself—is given under the guise of telling us what is best in our non-elite world.  

But “elite” locations for academic production really means that clinicians and non-elite law professors have no right to participate in the academic discussion—they should be doing practice stuff.  If they are doing elite stuff, they are clearly trying to exit their non-elite school or transform from clinician to elite, behind-the-podium academic.  They are not doing anything of direct value to their school, their students or their clients.  They are suspect professionally and institutionally.  They don’t belong in the lower-tier legal academy.

This view is oddly myopic and unitary.  What this view misses is the new practice of holism, one that is churned out in locations outside the white-shoe law firm (and often within those firms).  Holism *just is* the practice aspect of interdisciplinary.  Law firms and courts are looking to get more holistic—and, what’s more, it's a style of practice that America is exporting around the world.  Most importantly, it's a feature of the law that most practice-oriented “doctrinalists” implicitly or explicitly recognize and embrace.  If the sort of doctrinalism valued is no more than the study of statutes and state appellate and federal court decisions, and if the purpose for which it is valued treats legal practice as primarily formalistic, then the understanding of the value of doctrine is narrow, unitary, and outdated.  So the demand that lower-level law schools emphasize a narrow notion of doctrine doesn’t even reflect what most “doctrinalists” are about.

There are a number of arguments conflated into the claim that we face a simple binary choice between academic and doctrinal faculty, and that only elite law schools can afford to have academic faculty.  The emphasis on doctrinalism is certainly the essence of law school, but it has a poisonously elitist side that ill-serves students and fails to acknowledge the nature of modern legal practice. 

To deal with the purpose first: it seems to me a supposition is that to be practice-ready, students need only to be versed in doctrine, because all lawyers do is write memos for partners, or (if in solo or small-firm practice) cut-and-paste pro forma legal documents (the argument that 'writ writers' as they used to be called are taking over the practice, either through online stuff or outsourcing or through providing legal services at the bottom end). 

While there is some truth to this, it envisages, ironically, a deeply unitary view of what the practice of law is about, one that is itself elitist.  It assumes that so long as lawyers know how to churn cases into citable propositions of law or to process clients' claims into some documentary form, then the lawyer has done her job.  I think this does describe some elements of elite practice—at least at those firms that, in the boom years, overstaffed cases and locked recent grads in warehouses to do document processing. This stuff makes the lawyer fungible: it is the stuff that the market has outsourced or downvalued, or replaced with more efficient technology.

It's ironic then that the sort of doctrinalism that is often identified as the most valuable is stuff that mimics this view of lawyering: that rests content with regurgitating federal and appellate cases, and ignores the practice of law in the lowest-level courts, ones in which doctrine is mostly absent, and, when present, comes in as a "nuclear option" when negotiation has failed. 

The truth of low-level legal practice is that it is administrative but non-bureaucratic.  It is interpersonal and interdisciplinary: it takes place in the corners of the courthouse and over the telephone.  It requires the developing and maintenance of relationships, and a strong sense of social justice.  The doctrine is vital, because at the very least it provides a broad framing of the practice and constructs the institutions in which and through which practice takes place.  But a unitary emphasis on rule-of-law doctrinalism is quickly captured by the local treatise and practice guide for most practicing lawyers; it is the variety of other knowledges that set them apart from the online forms, outsourcers, glorified paralegals, and writ-writers that, at the lowest level, are the main competition. 

Now, I'm not making an economic point here. It may be the case that having too many academics on staff drive up the price of faculty, and so of law school.  I certainly think that the redistribution of wealth from those on the bottom to those on the top is the most worrisome feature of the modern law school. 

But if we are to evaluate the worth of the "academy" portion of the legal academy, I think properly accounting for the value of the academic side of a legal education is essential, and there is a tendency to discount it by arguing that academics do not—and perhaps cannot-produce practice-ready lawyers.

There are four arguments I want to challenge, all of which are hidden and subversively elitist attacks on the value of some form of academic component in legal education.  They are: (1) Academics have not practiced and so cannot teach students about the practice of law; (2) Academics teach practice-irrelevant subjects and so distract students from learning about the practice of law; (3) Only doctrinal training is essential for the practice of law; and (4) Important judges' attacks on certain "academic" subjects is dispositive for determining what is useful in practice

I’ll take them on, one by one, over the course of this week.

Posted by Eric Miller on February 11, 2013 at 11:12 AM | Permalink


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This introduction has the smell of fighting strawmen. Perhaps, as you address the arguments you seek to challenge, you would provide the source of these arguments so that readers can read them for themselves rather than rely on your characterizations?

Posted by: shg | Feb 11, 2013 11:52:05 AM

As I alluded to in a comment to your first post in this (excellent) series, I think that this particular argument packs too much into "academic" and "interdisciplinary".

The status quo isn't lots of faculty with backgrounds in social work, psychology, or even sociology who write and teach about the myriad and multifaceted problems of the poor and near poor.

The division is rather mostly between practitioners whose practice caters to corporations, wealthy individuals, or governments on the one hand, and to academics in areas like law and economics, legal history, and the philosophy of law. Even those professors who do concentrate of marginalized groups (e.g. CLS) tend to do so in a highly highly abstract manner, that does little to help students or practitioners serve these populations.

Posted by: brad | Feb 11, 2013 12:36:11 PM

Some of the attacks are on the substance-less musings that result form "interdisciplinary" scholarship. This posting would be a prime example. At not point in this posting does it give specific examples of the and interdisciplinary scholarship - so for all we know it could be defending a course in "law and the semiotics of knitting."

Some of these subjects are so inherently ludicrous that they attract the sort of mockery made famous by Sokal's Joke ( as in: "Transgressing the Boundaries: Towards a Transformative Hermeneutics of Quantum Gravity".)

As someone who works in international technology law I spend my time on the boundaries between law, economics and science/engineering - so I am far from inherently critical of interdisciplinary legal practice. Is do however, have a lot of sympathy with:

"They are: (1) Academics have not practiced and so cannot teach students about the practice of law; (2) Academics teach practice-irrelevant subjects and so distract students from learning about the practice of law; (3) Only doctrinal training is essential for the practice of law; and (4) Important judges' attacks on certain "academic" subjects is dispositive for determining what is useful in practice."

So let me put it more fairly (a) Academics who have not practiced are poorly placed to teach students how to practice law and how to integrate issues that are non-legal (and perhaps from other disciplines) with legal doctrine; (b) many Academics are not interested in the law and are just desperate to teach anything other than law, to the detriment of providing a good foundation of legal knowledge (after all that is why they decided not to practice law); (c) a comprehensive doctrinal training is essential for the practice of law and the other stuff is a luxury that should only happen when the basics are covered (and they mostly are not); (d) and important judges have been pointing this out while professors sit fingers in ears uttering "neener-neener-neener."

That would be pretty fair. Meanwhile this post would benefit from a few specifics - for all I know Eric Miller got reamed by a lawyer for teaching a particularly silly interdisciplinary subject...

Posted by: MacK | Feb 11, 2013 12:55:02 PM

Eric, I think you are responding to two distinct criticisms of legal scholarship, and I'm not sure it works to blend them together.

The first criticism is made mostly by students as part of the "scam" movement, and also in part by Brian Tamanaha. They contend that scholarship is very expensive to support, and therefore it should be supported at a given school by student tuition dollars only to the extent that student employment prospects are sufficiently strong at a particular school to justify the luxury of supporting it.

The second criticism is made by judges and practicing lawyers. They contend that legal scholarship is not sufficiently connected to the world of legal practice, and that it would be better if legal scholarship were of more direct assistance to the day to day work of lawyers and judges.

If I follow the post correctly, you appear to combine the two criticisms into hybrid claim that professors at non-elite schools shouldn't do scholarship that is divorced from legal practice. But I'm not sure it makes sense to combine the two claims, as they strike me as quite different.

Posted by: Orin Kerr | Feb 11, 2013 1:11:38 PM

As someone who has criticized the dominance of the theoretician in the legal academy, I too smell straw men. I, for one, would not embrace any of the four propositions attributed to the critics of an overly academic approach to legal education, especially in the strong form that they appear in the post. Moreover, I have been perfectly willing to criticize the teaching at so-called elite schools, using the fairly disastrous legal career of John Yoo as an example: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1630574

By my back-of-the-envelope calculations, something less than 15 percent of the graduates of Yale go into the academy; the same is true for about 2 percent of the graduates of Harvard, and no other so-called "elite" school much exceeds one percent. These percentages will only shrink in the foreseeable future given current market conditions. In short, those of us who teach in law school are engaged in preprofessional education. Students spend all that time and money in law school to obtain a marketable skill. There is surely reason to doubt whether instructors who never took the time to develop the professional skills necessary for success in the practice of law are capable of imparting those skills to their students. There is particular reason to doubt whether anyone who would attribute to practitioners the view that "[o]nly doctrinal training is essential for the practice of law" -- or who seems to equate "practice" with "doctrine" -- knows very much about the kind of skills that are necessary for success in the practice of law. Ironically, many of the "scambloggers," as well as Professor Tamanhana and his admirers, make the same critical mistake.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Feb 11, 2013 1:51:39 PM

Academic takes on law have little to do with what goes on in lower courts. I worked with the Canadian Association of Chiefs of Police to see what effect low literacy and legalese were used to deny justice to the accused, the victims, witnesses, and the community. The results are published at PoliceABC.ca and a quick look here is informative http://policeabc.ca/why-target-crime-with-literacy.html

Last year I gave a report with US stats to a Clarity conference here: http://preview.tinyurl.com/clarity2012

Posted by: Cheryl Stephens | Feb 11, 2013 2:16:02 PM

With respect to what Larry Rosenthal said-

I worry that far too many college graduates go to law school à défaut de mieux, not out of any genuine interest in the practice of law. In many interdisciplinary law professors I see the same - someone who was not good enough to become an academic in their subject of interest - instead running off to law school - and on becoming a professor of law seeing this position as a suitable place to dabble in their first love.

Most of the serious legal work that I get paid to do - and my partners - involves a need to understand multiple disciplines and integrate them with core legal knowledge - so it may be software, or biology, or chemistry - a chunk of economics - some cultural understanding - and a lot of law. The ability to integrate facts and information that is in principle extraneous to law as such - but is specific to the legal matter presented is a skill that a successful lawyer needs to have. The criticism of interdisciplinary teaching in law is that it is not about that ability to integrate from an ever-changing buffet, but about a desire to dabble and muse about subjects in which the professor has little or no expertise.

Practicing lawyers tend to have a very dubious view of interdisciplinary legal studies because practicing lawyers often have to become experts on subjects that many professors would find surprising - and as such tend to have a well tuned bullshit detector in those subjects - and to be frank, most of the law review articles and scholarship they then see in the areas where they have practiced are bullshit. It does tend towards a pretty hostile reaction.

Posted by: MacK | Feb 11, 2013 2:19:34 PM

That's a first: I find myself more or less agreeing with MacK.

Posted by: Orin Kerr | Feb 11, 2013 3:19:32 PM

I am afraid I am somewhat confused by this post. Could you state specifically who you are criticizing? Otherwise, as has been pointed out above, it seems that you are attacking a strawman. Also, what do you mean by academic and interdisciplinary? I don't know whether by academic you mean the Socratic casebook method, concentrating on policy, teaching in seminars, or something else. Finally, by interdisciplinary do you mean bringing subjects like economics or philosophy into the law or do you mean teaching students business practice so they can be better corporate attorneys or having clinics that combine law and mediciine so that lawyers can be better healthcare attorneys?

Posted by: Scott Fruehwald | Feb 11, 2013 3:56:42 PM

I'm waiting breathlessly to read your take down of the 'law professors haven't practiced myth.' I've practiced and I've taught, and very few I taught with practiced beyond the first few years. If you read their profiles touting their "practice in appellate advocacy before the Courts of Appeals and the Supreme Court" you would think they were the SG, when in reality the ones I've lunched with rarely got out of the library and never actually spoke in public.

Here's a test for that post: you 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. If your 'practice experience' is limited to sitting in some partner's or bureau chief's office and scribbling research assignments on a notepad, you are deluding yourself if you think you've really practiced law at a level that allows you teach from experience.

Posted by: Anon | Feb 11, 2013 4:25:36 PM

"Here's a test for that post: you 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."

There are tens of thousands of government lawyers. They range from lowly ADAs trying DUIs to those high falutin' federal appellate lawyers that you ridicule. (News flash: appellate lawyers spend 95% of their time sitting in the "library" [read: at their desks on Westlaw] researching and writing; it's what the practice entails.) Are you saying that none of those attorneys have "really practiced law"?

Posted by: Um | Feb 11, 2013 5:08:58 PM

You're brave to take this on, but I wouldn't bother to waste too much time addressing it. Law schools will always be neither fish nor fowl: the PhDs in the rest of the university will continue to look askance at an academic field without peer review and I'm afraid no amount of practical training will satisfy the bar. This is a perennial tension that won't go away any time soon, if ever. I've always hoped that we could all just get along with the law school simply remaining a house with many mansions, but the level of hostility I sense in the debates has cured me of my sanguine attitude. It's a very very sensitive topic.

Posted by: Anon | Feb 11, 2013 5:15:34 PM

One more thing. Practice and doctrine are not the same thing, as implied in your title. Doctrine is knowledge. Practice is application of that knowledge, such as in problem solving. Much of the legal education reform movement is aimed at adding a problem-solving component to doctrinal classes. In other words, we want to integrate doctrine and practice into the same course.

Posted by: Scott Fruehwald | Feb 11, 2013 5:40:41 PM

Scott: great point. I wish I could have put it so succinctly.

Posted by: Eric J. Miller | Feb 11, 2013 5:43:12 PM

Um - Government is a great way to get experience in practice, because the path to primary responsibility for client matters and to being the one making the argument is shorter. Government or private, however, if you spent your so called practice time in the library doing research for a more senior lawyer, you don't really have meaningful practice experience. You may be a brilliant writer and a compassionate teacher, but your experience if what it means to represent clients remains vicarious.

Posted by: Anon | Feb 11, 2013 10:43:53 PM

I submit to you that if your school costs about what Harvard costs for whatever reasons including scholarship, then your school should place about as well as Harvard does. The rule going forward is that schools can focus on "scholarly reputation" all they want, but if a school is the most expensive among schools who place their students similarly in full-time, JD-required jobs (let alone into federal clerkships or firms of 100 attorneys or more), then it should expect prospective students to notice and apply accordingly.

Excepting sole practitioners, 52.2% of Saint Louis University School of Law's graduates obtained full-time jobs requiring bar passage. The total non-discounted cost of attendance is $210,991, not including about 15% for interest accrued on non-subsidized loans or the cost of attending an undergraduate university. The University of Iowa's non-discounted cost of attendance was $235,213 (much lower for residents, though: $160,265), but they managed to place 65% of their students in full-time jobs requiring bar passage. On the other hand, the University of Illinois only placed 47.5% of its students in full-time jobs requiring bar passage, despite a resident cost almost equal to Saint Louis' and a non-discounted cost equal to the University of Iowa's. When I visited Iowa five years ago, it was #25. Illinois was around #35. Saint Louis was in the so-called "third tier" with my undergraduate alma mater, West Virginia University, although both of their law schools are now hovering around the bottom of the "top 100." (West Virginia University College of Law, incidentally, places better than any of the schools mentioned above.)

You can huff and puff about the unfairness of it all, if it helps you make it through the day. But the revenue that is used to pay your salary comes almost exclusively from people that borrow money to become lawyers. Not baristas. Not compliance officers. Not "e-discovery associates." Once upon a time, the economy was good enough that it didn't matter what you taught or how many you graduated, but that time is not now. The sooner you devote serious thought to making your every graduate more capable of representing clients than the next school's (especially when a large minority of your graduates can't find employers to provide the mentoring and finishing you could not or would not provide), the more likely it is that Saint Louis University School of Law will survive the deluge that will drown more than a few of your peers.

Posted by: Morse Code for J | Feb 12, 2013 12:21:44 PM

Inter alia - is the ABA in breach of Federal Regulations in ignoring employment and bar passage outcomes The 1995 ABA Consent decree (available at http://www.justice.gov/atr/cases/f0200/0255.htm ) is also important in what it does not prohibit. Under the terms of the consent decree, the ABA agreed not to collect faculty salary data or consider faculty compensation in accreditation, bar accreditation of for-profit schools, or prohibit acceptance of transfer credits from unaccredited schools. United States v. Am. Bar Ass’n, 934 F. Supp. 435, 436 (D.D.C.
1996). After the consent decree the ABA changes in 1996, including eliminating a teaching load limit and the requirement of periodic sabbaticals, allowing limited counting of adjuncts in the calculation of the faculty/student ratio and a few other changes.

This raises an interesting question - could the ABA consider employment outcomes as a factor in law school accreditation? Could it consider tuition and debt ratios in the employment catchment are of the law school. Suppose the ABA stopped short of 100% full time employment at 9 months - and picked a number like 90% - or set a criteria for first and second time bar passage.

Looking at the actual regulations for Accrediting Bodies that apply to the ABA's role is interesting in this regard:

34 CFR §602.16 provides in part that criteria for accreditation includes

(a) The agency must demonstrate that it has standards for accreditation, and preaccreditation, if offered, that are sufficiently rigorous to ensure that the agency is a reliable authority regarding the quality of the education or training provided by the institutions or programs it accredits. The agency meets this requirement if—

(1) The agency's accreditation standards effectively address the quality of the institution or program in the following areas:

(i) Success with respect to student achievement in relation to the institution's mission, including, as appropriate, consideration of course completion, State licensing examination, and job placement rates.

(ii) Curricula.

(iii) Faculty.

(iv) Facilities, equipment, and supplies.

(v) Fiscal and administrative capacity as appropriate to the specified scale of operations.

(vi) Student support services.

(vii) Recruiting and admissions practices, academic calendars, catalogs, publications, grading, and advertising.

(viii) Measures of program length and the objectives of the degrees or credentials offered.

(ix) Record of student complaints received by, or available to, the agency

(emphasis added)

My view of the foregoing is that the ABA would have a pretty perfect Noerr Pennington defence if it was to argue that the actual regulation that made it the accrediting body requires it to take account of bar passage rates and employment outcomes. Indeed I would go further an suggest that the ABA is in breach of the relevant federal regulations in ignoring employment outcomes. Certainly based on current data there is absolutely no evidence that the ABA has set any criteria at all for employment outcomes and state licensing exams.

Posted by: MacK | Feb 12, 2013 4:10:42 PM

Cut n' paste on iPad is pretty poor

Posted by: MacK | Feb 12, 2013 4:11:41 PM

The comment above was one that I intended to make in reference to the problem with ABA accreditation thread, but jet-lag and iPad goofery put it in the wrong place

Posted by: MacK | Feb 13, 2013 6:02:23 AM

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