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Thursday, September 09, 2010

Justice Scalia Throws Down (sort of) at Marquette

As some of you know, we at Marquette recently moved into a spectacular new building. Yesterday, we dedicated Eckstein Hall and heard remarks from, among others, Antonin Scalia. Justice Scalia decided to comment on the perceived divide between the legal academy and practicing lawyers. He suggested that too many academics regard the practice of law as somehow “dirty” and called on law professors to spend more time on teaching than on publishing – even as he recalled how he, as an academic, had come to begrudge the time that teaching took from his scholarship. The life of the Great American Law Review Article is, he said, about ten years and "[t]he reality is that the part of your academic career that will have the most lasting impact and that will be remembered after you are long gone is those hours you spent producing a living intellectual legacy in the classroom …."

This brought to mind the ongoing debate over the practical and theoretical and whether law faculties are made up of those who cannot – or will not – practice what they preach.

I came to full time law teaching with more practice experience (twenty six years) than a handful of faculty around the country.  I agree that most law school faculty have very little practice experience and often don’t know it. Three to eight years as an associate at a large law firm does not make an experienced lawyer. In fact, I would argue that, even in the rarefied air of a Big Law Firm, a person has no idea of what the practice is really about until they spend a few years as a partner. That divide is about a lot more than money and prestige.

But,  of course, even my own experience is limited. Most students at most law firms are not going to become part of Big Law (perhaps to their professional and personal gain) and will face different challenges that I faced as a litigator at a mega firm and (essentially) the only lawyer for a privately held firm with operations around the world. In particular, they will face pressures for efficiency and a need to demonstrate the emotional intelligence required for those in a helping profession that are, while not absent, far less acute in big law firms.

But my own experience suggests that the debate – at least as it often proceeds – is overly crude. I found (as I expected to find) that moving into full time teaching and scholarship would challenge me and force me to stretch myself. It took work to find my place as a scholar (if, in fact, I have). It took, to be honest, even more work to find my groove as a teacher – something that I think I am only beginning to accomplish.

But there is more. I still practice a bit. I have found that that – particularly in litigation – I practice differently (and better) than I used to.

This suggests to me that the theoretical and practical are less alternative approaches than they are two essential paths to the same goal. The reason, ironically, is rooted in what it means to be a successful lawyer at levels of experience that most full time law faculty never reach.

Practicing law ultimately becomes an exercise in judgment and in the management of uncertainty. Technique is important but legal problems are often not merely a matter of discerning the law or exercising technical craft. The thorniest issues require critical analysis that, while aided by legal knowledge, is not circumscribed by it.

What I think needs to improve – at least it’s an area where I want to improve – is in connecting theory and even the occasional “high minded course” (I teach Law and Theology) to what lawyers do.

A version of this was posted in response to a thoughtful student comment at the Marquette University Law School Faculty Blog.

Posted by Richard Esenberg on September 9, 2010 at 12:41 PM in Life of Law Schools | Permalink


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I spent 15 years practicing as a public defender (trial & appellate) before moving to the academy. Even then, I did not completely leave practice behind. During my 22 yrs in the academy, I've averaged 2 appellate & 3 trial pro bono cases each year always, offering my students the opportunity to participate. At the same time, I've done more than my fair share of publishing. My impression is that my experience is not unusual for those of us in criminal law. I think, perhaps, Scalia may be painting with a too broad a brush. The BigLawFirm has very little to do with the practice of criminal law. It is prosecutors & public defenders who do yeoman's work in this area and know it best.

Posted by: Randall | Sep 12, 2010 1:42:32 AM

Orin says:

"The odd part about Scalia offering these remarks, in my view, is that I don't think he was exactly the most productive scholar when he was professor."

But imagine if legal blogs were around back when Scalia was a professor. Instead of the "Volokh Conspiracy" we might have had "Scalia's Slippery Slope" as a forum for the right. (Or if SSRN were then available, Scalia might have filled the Internet with his commentary.) When you're the smartest guy in the room, it's tough keeping quiet for long.

Posted by: Shag from Brookline | Sep 10, 2010 7:23:14 AM

Scalia gave similar remarks at GW a while back. The odd part about Scalia offering these remarks, in my view, is that I don't think he was exactly the most productive scholar when he was professor.

Posted by: Orin Kerr | Sep 9, 2010 8:10:41 PM

Richard, this is really interesting. I'm particularly intrigued by your comment that your practice differently and better now that you teach full time. Could you elaborate on the ways in which your practice has changed for the better? And maybe say something about how teaching caused these changes?


Posted by: Vladimir | Sep 9, 2010 4:53:23 PM

Wonderful post! As someone who practiced nearly as long as Professor Esenberg before moving to the academy, albeit as a government lawyer rather than at a mega-firm, I could not agree more. As a concrete example of the problem identified in this post, I have recently written a paper arguing that many of the problems in John Yoo's legal work during his time in the Department of Justice may reflect the gulf between the academy's champion of the theoretician and development of the type of professional judgment so essential to the practice of law: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1630574

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Sep 9, 2010 4:53:23 PM

One of my former law professors practiced for two years and once told me that "after two years, you know all that there is to know about the practice of law." He wasn't being saracastic, either.

Posted by: Doug Richmond | Sep 9, 2010 4:00:54 PM

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