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Monday, July 14, 2014

Practice Experience vs. Scholarly Chops in Legal Academia - False Dichotomy?

Over at Faculty Lounge, Brian Clarke mentioned me (in an kind way) in the process of picking at a particularly popular scab right now - the balance within faculties between practice and scholarship chops.  (It's a lot easier to make an extended comment in TypePad than in the comments, and I don't want to hijack Brian's thread, so I'm closing comments here, and invite commenters to head thataway.)

I've written at some length in prequel, full-length feature, and sequel about being a tenure-track or tenured law professor after significantly more practice experience than is the norm.  (Think of them as "Rise of 'Retire and Teach'" and "Dawn of 'Retire and Teach'", then decide as between practitioners and academics who gets to be the humans and who gets to be the apes. I have dibs on Caesar, the chimpanzee raised by humans.  Do what you want with that metaphor.)

Brian's plea is for balance across the faculty between, on one hand, what Larry Solum described as "the normative turn" in legal scholarship - that mix of theory and interdisciplinarity that critiques rather than merely elucidates doctrine - and, on the other, an orientation toward the real-world practice of law.

I've come to believe more and more that we need to treat analytical dichotomies with a grain of salt.  There are zillions of reasons why we have to set arbitrary lines within continuums or family resemblances, particularly in the law (e.g., to be protected as free exercise, something either is or is not religion).  But those lines tend not to do a great job of cutting reality at the joints, as it were; hence the Munchausen's (or Agrippa's) Trilemma of casuistry in working back and forth across and resetting thoses lines.  Indeed, one of those continuums between practice and scholarship relates to instrumental advocacy, on one hand, versus academic argument, on the other, something I talk about in the Retire and Teach sequel.

But after the fold are some observations in no particular order.

1.   I really do think it's hard to make across-the-board generalizations either about tensions between teaching and scholarship, or between extensive practice experience and the ability to be not just a good but also an effective teacher.   It depends on the person, the subject matter, and the objective of the course.  Just looking at our own pre-tenured non-clinical faculty at Suffolk, everyone of them has impeccable scholarly resumes (one Ph.D. from Harvard in English and American Literature, one M.T.S. from Notre Dame in Moral Theology, one MPA from the Kennedy School at Harvard, leading voices in intellectual property law, housing policy, and international environmental policy, dozens of well-placed law review and peer-reviewed articles), two of them have traditional big law firm experience and two do not (i.e. they come from the policy arena), but I can attest that each of them is regarded by our students as among the very best teachers we have.  It's simply not an either-or.

2. There's a bit of either ambiguity or schizophrenia on the "practical" end of the spectrum.  Sometimes you hear it as "practice-ready" which is something entirely different from bar exam-ready.  You really don't have to have practiced much to teach a first year student the law in a way that will be helpful for the bar.  I teach first-year contracts and occasionally get comments on the student evaluations to the effect that I take off on "theoretical tangents."  That's always moderately amusing to me because my biggest disasters in now nine years of teaching have been things like Hohfeld's list of correlatives and my attempt to explain a particular Scalia opinion in terms of modus ponens logic.  Both have long since been excised from the syllabus.  There are, however, students who characterize as too "theoretical" what I would call "meta-thinking" about the law - that is, if you are practicing as a business lawyer, just what is it that you can accomplish by way of contract law versus other norms?  Personally, I think that's at the very core of practical wisdom as a lawyer, and one of the benefits of having a teacher with long experience, but YMMV.

3.  One of the commenters to Brian's post mentioned the differences between practicing skills and teaching skills, and the time it takes to develop the latter.  Absolutely right.  One of the things you have to accept as a long-time practitioner moving to the school setting is that teaching an effective law class is NOT like teaching a CLE course.  Personally, I hated CLE classes when I was required to attend them; lots of droning on about dos and don'ts in tedious outline form, almost all of which I could have read in order to get the same information.  It takes a lot of work to develop in-class teaching that harmonizes and builds effectively upon what the students are reading in the casebook and other materials.  One upshot is that, notwithstanding your age and experience, you deserve to be treated, in a phrase I don't like generally as applied to new professors, like a rookie.  Because you are!  Indeed, there's an irony of some sort here, because I'd say that many long-time academics would say you are also a rookie as a scholar, and there's truth to that as well.  (If you don't read your earliest work and gag on a frequent basis, you've got a real problem with self-deception.)  But whereas there's a real issue with disciplinary cooptation in scholarship - i.e., resistance to work that doesn't quite fit in the discipline - I don't think there's any real dispute about what constitutes teaching excellence.

4.  I've ragged on in various forums to the effect that in the new reality of most law schools tenure-track faculty will generally have to walk and chew gum - i.e. satisfy scholarly demands according to the disciplinary standards of both of the academic legal community as well as the broader standards within the university AND, like the professors mentioned above, satisfy their students and the alumni base that they are providing an effective education to that vast majority of students who don't want to follow in their professors' career footsteps.  That's because law professors are pulled in two different directions, neither of which pull is going away any time soon - namely, that to succeed as a tenure-track or tenured scholar after the "normative turn" you need to be doing tenure level doctrinal or theoretical or empirical work that often doesn't translate to the classroom, and to be a good teacher you have to teach what is meaningful and helpful to the students, regardless of your scholarly interests.

5.  One of the canards that floats around, however, is that law professors don't care about their teaching, and I react to it about the way I did to the canard that corporate board members were toadies, lackeys, and butt-kissers to the CEO.  Simply:  not in my experience.   Skill and effectiveness levels may vary, but I have yet to run across a law professor at any school anywhere on the food chain who didn't care about being a good teacher.

6.  Finally, I do think there is something to requiring an aspiring full-time tenure track academic in a university or quasi-university setting to signal (to Brian Galle's point) what I would call a tolerance for, if not a commitment to, in the absence of a better term, "the life of the mind."  (Put aside my belief that there are whole areas of practice now the exclusive domain of lawyers and law schools that could be taught and practiced without a three year traditional law degree, and the university model need not apply there any more than it does for barbers or chefs.)  The person who comes to mind is my friend Steve Bainbridge, who quite publicly proclaims (often and loudly in a metaphoric way) his impatience with both "law and ..." and empirical legal studies and his preference to focus on the law.  Nevertheless, I don't think you ever pick up from Steve a disdain for intellectual pursuit or think of him as anything other than a university professor.  (You can pick up a lot of other clever disdain from Steve - that's why we who disagree with him so much still love him - but not disdain for thinking!) Again, the analytical dichotomies tend to fail us.   Late last month, I presented a paper at a day-long conference on "Hans Kelsen in America."  The positive versus natural law debate in jurisprudence and philosophy of law is probably as divorced from practice as you can get, but I don't think there's any question that one can learn the kind of intellectual rigor you need in certain kinds of practice from that subject matter as much as any other.  Will it help you if what you really aim to do is litigate plaintiffs' side personal injury cases?  Probably not.  But if you think law school, at least as presently constructed, should be about teaching only the skills necessary to try a tort case, you probably don't sufficiently tolerate the life of the mind to be on a university faculty.

7.  To repeat a point likely buried in the preceding paragraph, does that mean that all practitioners of what presently constitutes the practice of law need to be educated in schools whose faculty are professors in the modern university conception of professors?  Absolutely not.  And even in the present system, if what you want to do is teach, you can as an adjunct, as a professor of the practice, as a clinician at schools where the job requirements involve teaching and service, but not scholarship, and all sorts of other accommodations to the very practical element of what we do.  For myself, I wanted to be a university professor in that particular mold, to go back to a particular junction of a road not taken, and I accepted there was a particular gauntlet I was going to have to run.

Posted by Jeff Lipshaw on July 14, 2014 at 12:49 PM | Permalink


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