Monday, August 23, 2010
Newton: How Law Profs' Preoccupation with 'Impractical Scholarship' Obstructs Legal Education Reform
Brent E. Newton (Adjunct Professor, Georgetown; Deputy Staff Director, U.S. Sentencing Commission) has posted Preaching What They Don't Practice: Why Law Faculties' Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy, 62 S.C. L. Rev. ___ (2010), on SSRN. Here is the abstract:
In response to decades of complaints that American law schools have failed to prepare students to practice law, several prominent and respected authorities on legal education, including the Carnegie Foundation for the Advancement of Teaching, recently have proposed significant curricular and pedagogical changes in order to bring American legal education into the twenty-first century. It will not be possible to implement such proposed curricular and pedagogical reforms if law schools continue their trend of primarily hiring and promoting tenure-track faculty members whose primary mission is to produce theoretical, increasingly interdisciplinary scholarship for law reviews rather than prepare students to practice law. Such impractical scholars, because they have little or no experience in the legal profession and further because they have been hired primarily to write law review articles rather than primarily to teach, lack the skill set necessary to teach students how to become competent, ethical practitioners. The recent economic recession, which did not spare the legal profession, has made the complaints about American law schools’ failure to prepare law students to enter the legal profession even more compelling; law firms no longer can afford to hire entry-level attorneys who lack the basic skills required to practice law effectively. This essay proposes significant changes in both faculty composition and law reviews aimed at enabling law schools to achieve the worthy goals of reformists such as the Carnegie Foundation.
Mr. Newton has some harsh words for law professors:
Especially at law schools in the upper echelons of the U.S. News & World Report rankings, the core of the faculties seem indifferent or even hostile to the concept of law school as a professional school with the primary mission of producing competent practitioners. ... Regardless whether they possess a Ph.D., a vastly disproportionate number of new law professors graduated from so-called “elite” law schools, which not coincidentally employ the largest percentage of impractical faculty. “Law professors are a self-perpetuating elite, chosen in overwhelming part for a single skill: the ability to do well consistently on law school examinations, primarily those taken as 1L‟s, and preferably ones taken at elite „national‟ law schools.” Some critics contend this homogeneity in law school faculties has resulted in an ethos of perceived intellectual superiority and classism and has made full-time professors, at least those with tenure, jealous of their privileged positions. Other critics contend that many law professors are so absorbed in their scholarly pursuits that they are largely unconcerned with students‟ needs – academic or otherwise. ...
Could [a typical law school] professor whose primary scholarly interest is criminal law and procedure effectively prosecute or represent a criminal defendant at a felony trial? Could such a professor who writes law review articles about the First Amendment effectively represent a client in a civil rights litigation? Could such a professor whose expertise is securities regulation effectively represent a client or the government in an S.E.C. enforcement action? Imagine such professors being first-chair counsel in a complex civil or criminal litigation who must interview potential witnesses, take depositions and engage in electronic discovery, file and respond to summary judgment motions, conduct voir dire, present the testimony of an expert witness, cross-examine (and impeach) hostile witnesses, and make closing arguments to a jury. There are some full-time non-clinical law professors capable of competently representing clients in real cases, but they are the exception, not the rule, particularly among professors hired in recent years at highly-ranked law schools.How can we expect law students to become competent practitioners if the core of full-time law faculties, notwithstanding their scholarly prowess, do not themselves possess even the basic skills required to practice the type of law about which they teach and write? How can we expect law students to become competent and ethical practitioners when the faculty members best suited to teach them the necessary practical skills and ethical lessons from real-world cases – clinicians, LRW professors, and adjuncts – are marginalized and even openly held in disdain by some members of the “main” faculty?
For a detailed discussion of the article, see Why Can't Johnny Research Practice Law? Or, Would You Hire a Law Prof to Represent You? (Law Librarian Blog).
I think the "try a case" standard is a little high, too. When I was in practice i Chicago, the general assumption was that most New York big firm litigation partners couldn't actually try a case if their own life depended on it. That's not to say they weren't real lawyers; it's just to say that it is anachronistic to make trying a case a litmus test.
Posted by: Ray Campbell | Aug 31, 2010 6:02:13 AM
As it happens, I have recently completed a paper on much the same subject, available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1630574 I use the example of the ill-starred legal career of John Yoo (it bears noting that the Bush Administration itself repudiated an extraordinary number of Yoo's legal positions) to demonstrate that scholars who have not had the occasion to develop the kind of professional judgment that is so central to the practice of law are unlikely to be able to impart this most critical of skills to their own students. Although Newton may go too far in expecting a professor who teaches criminal law to be able to try a criminal case, for example, I think it is quite right that the ascendance of the theoretician has had the unfortunate consequence of removing from the legal academy those who are familiar with the type of professional (and eminently practical) judgment necessary in the practice of law. Although Holmes taught us that the life of the law was not logic but experience, the legal academy seems to have forgotten that lesson.
Chapman University School of Law
Posted by: Larry Rosenthal | Aug 26, 2010 12:07:53 PM
In this post-racial (black guy in the White House), post-feminist (one-third of the Supreme Court is female) society, the practice of law is still, as it ever has been in America, about contracts, property rights, rules of procedure and evidence, and government authority, with those having the best communication skills, oral or written, and a modicum of political acuity, excelling. Policy wonks have less utility in a law office than a rookie legal secretary.
Posted by: TexEcon | Aug 24, 2010 12:39:35 PM
Mr. Livingston, with all due respect (and I mean that), it is liberal professors like yourself that are eroding and destroying the legal education, and education in general, in our higher education system. We don't need to know that tolerance is good, what we need to learn is when tolerance is at an end and we must not give in anymore. Feminist and critical race studies, in my opinion, are nothing more than liberal mechanisms to indoctrinate the youth in education. I admit, there are good sides, like learning about these issues, but having it crammed down our throats as students does more harm to the cause than benefit it. I am sick of hearing about woman oppression and minority oppression. If you are that oppressed do something and stop blaming others! Um, Obama would be a good example for both sides of the argument. He is black, he is not oppressed, but he will place the blame on others when it comes to the economy instead of changing it. Hey, I could create a "white race study" and as soon as that hits critical mass will that be "practical?" And for that matter, why can there be "Black law reviews" but not "White law reviews?" I have struggled with that question everyday. To me, law school is too liberal, and there definitely needs to be a leveler field.
Posted by: MAD JD | Aug 24, 2010 9:30:03 AM
Mike, the key question is who should pay for all of the impractical research? Students pay extremely large sums of money on the basis that law school is a "professional" school. The law faculties actions are saying it isn't but aren't willing to cut back the tuition to be comparable to graduate school. So law schools are being hypocritical with their students taking the hit. For the fortunate ones, Big Law provides that big headliner salary so the debt load is worthwhile. Most of the rest get stuck in much lower paid positions - a number no better than what a college graduate could earn - with a massive debt load.
So law schools need to decide what they are and price themselves accordingly. Professional schools with large fees or graduate schools with much smaller fees.
Posted by: SAN | Aug 24, 2010 8:37:24 AM
From a (former) student's perspective Newton touches on some very real issues. As a result, I hope the legal community takes the conversation of reform to a level that will prompt change. For another take: http://wp.me/pGzcS-37
Posted by: Nathan Johnson | Sep 2, 2010 10:31:36 AM