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Tuesday, November 30, 2010

Should "practicing lawyers" "hate legal academics"?

Prof. Bainbridge sets out here (some of) the "well known" reasons why they do (and, he suggests, should).  First, "[l]aw schools produce too many students who can't write a coherent letter, let alone a detailed contract or brief."  Second, "legal education still pays little attention to training students in how to actually practice."  Third, "legal scholarship is increasingly irrelevant to judges and lawyers."

Steve elaborates his points colorfully.  And, it would be hard to maintain that there isn't something to these charges.  Still, and notwithstanding my respect for Steve's excellent taste in wine, and his other merits, I think a little push-back is warranted.

For starters, I would want to see evidence that the young lawyers who graduated whenever it was that law schools supposedly were producing good writers actually were, in fact, good writers.  It is easy for we oldsters to complain that "kids these days" aren't writing as well as we imagine we do, and did.  But, does the complaint have merit?  Are we really supposed to think that Robert Jacksons were thick on the young-lawyer ground in the 1960s, and would be today, if only legal academics stopped writing about Critical Race Theory or legal history?  In any event, I think it's probably not fair to blame the law schools -- or "legal academics" -- for young lawyers' alleged inability to write well.  After all, I hear it said often (perhaps with justification, perhaps not) that today's high-school graduates and college-graduates don't write as well as their old-days counterparts did. 

Second, Steve says that "legal education still pays little attention to training students in how to actually practice."  I am confident that I am as committed as Steve is to skills-development and experiential learning, and I am sure that law schools could do better in this regard than we do.  I think it is a mistake, though, to connect too closely (a) the importance of preparing law students, to the extent possible, for the actual work of the profession with (b) complaints about "Law and the Visual Arts."  There is a danger that doing so creates -- in our students, and in the profession itself -- the misguided view that this "actual work" - the lived-out vocation of being a lawyer -- is reducible to the competent execution of particular lawyer-ish tasks.  Ours is, and has always been, a learned profession.  To "actually practice" law -- to do it right, and well -- one does have to be educated and formed to reflect on, and not only to do, what one is doing.  What we do, at our best, is to offer and exercise sound judgment, informed deeply and appropriately by consideration of relevant historical, social, moral, and other factors.  And, of course, to write clear letters, file motions on time, ask the right questions, anticipate and solve problems, and so on.   

Finally, the "legal scholarship is irrelevant to judges and practicing lawyers" charge:  Sure, much of it is (but see the paragraph above).  I don't think this is because law schools are hiring scholars with Ph.D.'s, or scholars who are interested in empirical questions and analysis.  Legal scholars should be, well, scholars.  And the field of law that legal scholars study -- like the practice of law itself -- is broader, in my view, than the criticism appreciates.  In any event, most law schools are situated in research universities, and law professors (like Steve, and like me) have -- or want to have -- tenure and to participate in the life and governance of universities.  Our role is to contribute to the profession and to the formation of lawyers, and also to contribute responsibly to the academy.

Don't get me wrong (please).  This post is not a defense of the misguided and offensive idea that everyday law practice is somehow beneath legal scholars' notice or undeserving of their attention.  It is not -- it absolutely is not -- a suggestion that writing hyper-footnoted articles that no one will ever read is "more important" than forming learned, competent, ethical, sensitive lawyers.  It is, instead, a plea that when we criticize what legal scholars and law schools are doing as insufficiently well matched with "actually practicing law", we don't unintentionally shrink or sell short the rich, deep, important, even noble enterprise that "actually practicing law" is.

Posted by Rick Garnett on November 30, 2010 at 03:25 PM | Permalink


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Practicing lawyers should be indifferent to legal academics. The two issues identified in the post: (1) professors do not adequately prepare law students and (2) legal research is not applicable to contemporary practice has some merit. However, I am not sure it matters.

Let's take preparation of students. First and foremost, I strongly believe the ability to write should be learned in undergrad. The proverbial english major who can;t get a job so he goes to law school, should know how to write in the English language. Law school should merely be a place where the proper style is taught. Additionally, I am not sure how contracting drafting can be taught properly since it is such a personal idiom. Additionally, lawyering skills can be easily acquired by bright students who care to learn. Clinics and other opportunities certainly provide this. Ultimately, the "think like a lawyer" approach at law schools is hugely valuable and should not be overlooked. I think "hitting the ground running" is overrated and to teach a student to be profecient at young lawyer skills is does so at the risk of not instilling the proper foundation for a lawyer to obtain advanced lawyer skills. The law professor has little to do with this, and the motivation of a law student has a lot.

I do, however, agree that current legal research is not helpful to practicing lawyers. I am an energy lawyer, and in such a cutting edge field, one would think that legal research would be helpful to my practice. Frankly, it is not. But, I really do not care. I am happy to learn by doing and drafting agreements and arguing theories that have never before been addressed. The main drawback of legal scholarship is that it rehashing what is established, and does very little to then address the reasonable issues that stem from such established law. I am happy to make law and have professors write about it.

Posted by: ZTS | Dec 4, 2010 2:10:35 PM

I am a lawyer in private solo practice since 1996. I like most law professors, I learned a lot from them in law school. I recently called a law professor at Duke (he answered his own phone) who helped steer me through a thorny immigration issue in criminal case I was handling.
I sometimes use law students to help me with appellate work. I think their writing skills are just fine and will improve with experience. Most recent grads seem to adjust well when someone who is in practice teaches them about the ins and outs of the local court clique.
I read law review articles (mostly on SSRN) often. Some are too theoretical to help in everyday practice. However, most of the ones I read teach me a lot and help me get a new perspective on things. A judge who boasts of not having read a law review article in years is a disgrace. He ought to resign and find a new line of work.
Law professors probably are out-of-touch with the nitty gritty of daily practice of law. So what. Clinical faculty or adjunct faculty can help with that.

Posted by: Bryan Gates | Dec 2, 2010 11:33:08 AM

Mark, I guess I didn't mean to suggest that the things described in the first sentence are somehow separate from the things described in the second. In my view, the things described in the second sentence -- the things you spend 99% of your time on -- are, in fact, instances of the things described in the first sentence. I didn't mean the first sentence to describe only things like "sitting back with Prof. Hamburger's new book and reflecting on the practice of judicial review"; I mean, instead (and, your comment makes me think I failed) to suggest that the things in the second sentence are best understood -- are more respectfully understood -- as involving the things in the first.

Posted by: Rick Garnett | Dec 1, 2010 3:46:08 PM

I think this sums it up, in an unintended way:

"What we do, at our best, is to offer and exercise sound judgment, informed deeply and appropriately by consideration of relevant historical, social, moral, and other factors. And, of course, to write clear letters, file motions on time, ask the right questions, anticipate and solve problems, and so on."

among practicing lawyers, I am more inclined to abstract thinking than most of my colleagues. Even so, only 1% of my time could be described by the first sentence. 99% is described by the second, or "and so on", sentence. This is the nub of the problem. If you believge that the main function of law school is to develop the mindset described in the first
sentence, you are talking about 1% or less of what practicing lawyers do. Conversely, you'd be saying that law school is not focusingon 99% of what lawyers do. That is a mismatch and thus the source of the complaints.

Posted by: mark | Dec 1, 2010 3:25:30 PM

As an appellate judge and adjunct professor, I believe the Professor is right on the money. Law schools should teach legal writing in a way that emphasizes writing to communicate as opposed to legal scholarship.

Simply put, most lawyers and law students do not have an adequate background in English and grammar. Law schools should make available have, let's call them, remdial writing classes. These classes should not be for credit but they should be made available to students and students should be encouraged to take advantage of them.

The first year of law school should be about introduction to basic legal theories, e.g., torts, property, contracts, con law, and criminal law.

The second year should be about advanced legal theories and disciplines that are necessary to practice law, e.g., evidence, procedure, jurisdiction, domestic relations, as wel as fundamental legal writing and oral advocacy or persuasion.

The third year should be about speciailized legal theories and intensive application courses, e.g., bankruptcy, UCC, appellate legal writing, trial practice, and legal clinics.

The best law school courses, in my humble opinion, are the law school clinics where students actually appear in court and write criminal appellate briefs.

Posted by: Thomas | Dec 1, 2010 10:54:17 AM

I'd say this is much more of a general disrespect (much more accurate word for hate) for academics among practicing professionals in the field.

Academics, by their nature, often work on areas that are not of practical importance to professionals. Some of those will become important later and advance the art or current thinking, but many more will turn out to be dead ends or silliness.

However, these same academics are those who are held up as the experts in the field, standing at the front of the classroom and telling you what you should know. When they themselves, having focussed on their research, have no skills that you as a prospective practicer of a profession need and consider worthy of respect.

Most college graduates I know would probably express a general disdain for ivory-tower academics and their misguided views of the "real world." But they can also almost all name a few professors that they honestly respect and admire. This is how most interactions with groups of any sort work.

The problem is that, because they are placed arbitrarily in a position of authority over their students and toil in a time-honored and "respected" field, some PHD's think that they should be entitled as a group to an inherent level of respect, and feel frustrated or hated when they are not accorded it.

Posted by: Mike | Dec 1, 2010 10:34:07 AM

Mr. Kerr: I do not think there is any evidence that lawyers hate law professors. The only 'hate' I see are from relatively new lawyers who went to top-50 law schools and are confused as to why BigLaw jobs are either not available or disappearing (i.e., they're getting fired). Examples of this kind of 'hate' are available at the ABAJournal.com website in the comments to articles.

The practicing lawyers I deal with certainly don't hate law professors. At the same time, they don't necessarily respect professors, either. Perhaps the word "hate" should be replaced with phrase "don't respect." Certainly the last complaint -- legal scholarship is less relevant to legal practice than it once was -- falls under this lack of respect. (The other two, I think, come down to the the kinds of grumbling you always hear from older folks in regards to younger folks.)

I am a practicing lawyer who aspires to become a professor so I am a bit more sensitive to this issue than most; I also think I am a more in-tune with the general view of professors in legal practice than Mr. Bainbridge as a result. For example, I've gotten into discussions at CLEs, bar meetings, and during job interviews (perhaps unwisely, but I did get that job) about my desire to one day teach law. The responses I got back tended to illustrate some aspects of practitioner feeling towards professors. None of them came close to 'hate.'

Nevertheless, a number were similar to the refrain of "Those who can, do; those who can't, teach." Sometimes mocking me, but more often as 'sage advice:' "Son, you don't want to do that; most of the professors I know are very smart folks, but they couldn't practice their way out of a wet paper bag." (Which is also a fairly accurate paraphrase of one comment.)

Mr. Bainbridge appears to be highlighting a feeling that I don't see existing. In doing so, he is co-opting feelings that aren't targeted at professors. Rather, they are targeting legal education and, at most specific, law schools. This is a big difference; law professors ultimately must abide by law school curriculum, and must look after their own job interests when it comes to 1.) writing law journal articles and 2.) teaching substantive vs. clinical courses. Biases against practical articles and clinical courses are more institutional than academic.

Either way, the first two complaints are questionable. For one, the worst writers I see as a lawyer are the older lawyers, not the younger ones. Older lawyers I've gone against have overly relied on forms, use outdated law, or poorly cited and edited their work. Secondly, not all law schools are created equally; some do better jobs preparing their students for legal practice than others. In the southeast alone I can quickly name a number of schools with a local reputation for graduating students who can 'hit the ground running:' Mercer, Stetson, Georgia State, and Cumberland. (Note: I attended one of these, so I may be biased.)

Could schools do better? Sure. Does practice competency vary between students? Absolutely; it depends on the student, their experiences, and the courses they took in law school. I worked for a lawyer prior to law school and new the importance of procedure and document drafting; this experience helped me choose courses and externships to best gain these skills.

I think the division between professors and lawyers is exaggerated. I also think the perceived lack of skills held by new legal grads is exaggerated. There is always room for improvement, but the sky isn't falling.

Posted by: John W. Nelson | Dec 1, 2010 7:46:31 AM

@ brad: ??

Posted by: pdq | Nov 30, 2010 11:04:51 PM

The worst thing about law professors is they take no responsibility at all for the massive violation of the implied convent of good faith and fair dealing that is operating a law school at current prices in the current environment. It's always too much administration, or foolhardy building plans or anything and everything but massively out sized salaries for faculty. All for the concept of faculty governance when it comes to power, but never when it comes to responsibility for fleecing their students.

It is especially galling that, at least in lower ranked schools, these upper-middle to upper-class professors are fleecing mostly students from lower middle to middle-middle class backgrounds whist preaching (sometimes quite radical) left wing politics.

Bring on the revolution, but don't you dare touch my tenure!

Posted by: brad | Nov 30, 2010 10:19:50 PM

Joke's on me, Scott. I thought Orin meant to say Steve B., not "Scott." Imagine my horror when I found out that "Scott" was actually "shg." I think we should both take this out on Kerr.

Posted by: Marc DeGirolami | Nov 30, 2010 9:12:00 PM

I have not attended law school yet, but I can tell you from experience that at the minimum, a law school should teach a student the importance of the rules of the court. I have written complaints, demurrers, motions to strike, opening brief, and a writ of mandamus. All of these documents I wrote would have been useless if they were not filed on time, went over the number of pages, or were basically disorganized and not in proper form that the court requires.

If you know the rules of court, you can win a questionable case against an attorney that does not know the rules. As an example, in California if you want the judge to write a statement of decision in a trial that lasts less than one day, you have to ask for it orally at trial or the judge is not required to write one. If the judge still refuses to write it after you requested it on the record, filing a writ of mandamus and requesting a stay will drag the case out and in the end, the judge will have to write the statement of decision.

As far as knowing how to write, I do not see that as being important. Whenever I filed a memorandum of points and authorities, I always used I think it was Mathew Bender's Book of California Points and Authorities and almost always found a case similar to mine to use in my memorandum. Isn't that what these CEB and other law books are for?

Posted by: Sal | Nov 30, 2010 7:22:19 PM

You could do worse than being me. I'm kinda happy about it, and no matter what that Kerr guy says, I don't hate lawprofs at all. I just think they need to be properly raised from pups.

Posted by: shg | Nov 30, 2010 7:21:48 PM

Very glad I'm not Scott.

Posted by: Marc DeGirolami | Nov 30, 2010 5:41:13 PM

What is the evidence that lawyers "hate" law professors? Other than Scott, of course.

Posted by: Orin Kerr | Nov 30, 2010 5:02:38 PM

Legal scholars should be, well, scholars.

Very deep, and yet would it not then follow that law teachers should be, well, law teachers? Law professors were not always legal scholars, but rather the nice folks who taught students to be lawyers, after legal education was "professionalized" from the apprenticeship days. The notion of lawprofs being scholars first, teachers twenty-seventh (if at all), is an latter-day affectation. This could explain your inability to formulate a better argument than quoted above.

Posted by: shg | Nov 30, 2010 4:51:50 PM

Isn't it also true that the supposed irrelevance of legal scholarship has been going on far longer than any of these trends Prof. Bainbridge identifies?

And as someone with a "mediocre law school record" and who "lacks experience as a law clerk or practicing lawyer," I would suggest that Prof. Bainbridge be slightly less of a jerk about it. The intellectual ghettoization of law that he appears to be recommending is a path to irrelevancy and Lakatosian degeneracy.

Posted by: Matthew Reid Krell | Nov 30, 2010 4:43:29 PM

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