Paul L. Caron

Friday, June 14, 2019

Yale Dean Gerken: Resisting The Theory/Practice Divide

Heather K. Gerken (Dean, Yale), Resisting the Theory/Practice Divide: Why the “Theory School” is Ambitious About Practice, 132 Harv. L. Rev. F. 134 (2019):

Debates about how to educate law students have long rotated around a familiar axis — the theory/practice divide. Commentators and bar associations routinely rebuke legal education for being too theoretically oriented. A recent iteration of that debate has centered on the credit hours that must be devoted to experiential learning. That disagreement was a stand-in for a long-standing debate about the role of clinical education in law schools.

The problem with framing these debates around the theory/practice divide is that we reinforce the very categories we ought to resist. This frame rests on too narrow-gauged an understanding of lawyering. It excuses us from being sufficiently ambitious about practice and theory, and it prevents us from seeing the connections between the two. There are deep continuities between what is taught in the classroom and the finest values of the profession.

The case for clinical work can and should rest on the same broadgauged aspirations. Both classroom and clinical teaching should be oriented around a broad vision of what a law school can be. At its best, a J.D. should be a thinking degree. Law school should prepare students not just to practice, but to problem-solve; not just to litigate, but to lead. A legal education should supply graduates with sharp analytics, institutional judgment, and a wide range of literacies. Law school should be a time to luxuriate in ideas, learn for learning’s own sake, and experiment with professional paths. And any argument for experiential or theoretical work ought to resist the theory/practice divide rather than leverage it.

I recognize that a Commentary endorsing clinical work on these grounds will be greeted with skepticism in some quarters. There will be some who doubt that clinical work can possibly measure up to the ideals I outlined above. And others will wonder what the Dean of Yale Law School could have to say about the importance of practice.

In order to allay those doubts, Part I begins by explaining how Yale, often known as “the theory school,” has developed one of the most ambitious clinical programs in the country and thereby generated a distinctive blend of practice and theory.

Part II turns to a defense of my central claim — that any argument for experiential or theoretical work ought to rest on a capacious view of legal education and eschew the tired theory/practice divide. Indeed, I’ll make what might seem like a counterintuitive claim — that Yale’s strong intellectual culture made it fertile ground for robust clinical teaching — even as I resist the notion that the claim should be counterintuitive.

Part III closes by addressing whether the pedagogical model I describe here can be reproduced elsewhere. Acknowledging the costs associated with maintaining a curriculum that is ambitious about practice and theory, I will suggest that globalization and technology will change broad-gauged pedagogy from a luxury into a necessity.

Before turning to these arguments, it is worth noting that this Commentary is focused on pedagogy. There are deep questions embedded within this topic, including issues that must be addressed by any institution that wields power in society. Moreover, law schools don’t just train lawyers; they also generate ideas. We write scholarship and debate ideas for independent aims, not to mention the sheer joy of it. So, too, a commitment to service is an ideal of our profession and important in its own right. My argument, however, is simply confined to what law schools teach and why., Theory v. Practice? Yale Law Dean Says “Nah”:

Should law school be a petri dish of ideas and intellectual exploration? Or should it follow a trade school model, ensuring that graduates have the skills necessary to be lawyers from the get-go? Those are the wrong questions to ask, argues a new essay in the Harvard Law Review by Yale law dean Heather Gerken. Law schools, says Gerken, should integrate both theory and practice to such a degree that they aren’t viewed as opposite goals, but rather natural extensions of each other. At least that’s what I took away from the essay, which I highly recommend reading. The essay offers inspiration of what legal education should aspire to, yet provides enough concrete examples of how to marry theory and practice that it doesn’t feel too much like a mere thought experiment. ...

Gerken, to her credit, acknowledges that good clinical programs are expensive (and not every law school has the deep pockets of Yale.) But this dual-goal for legal education isn’t just for well-funded campuses, she argues.

My thoughts: Gerken’s vision of legal education as exploring both the theoretical and practical side of the law is pretty close to the ideal, as I see it. And it’s clear that Yale has taken many steps to achieve that aim. Still, I have to wonder how universal—or realistic—this ideal is for all law campuses. Yale obviously enjoys so many advantages over most other law schools, and I’m not just talking about money and reputation. It’s a relatively small school, which enables it to provide a robust clinical program. It gets trickier once you are faced with creating those opportunities for hundreds upon hundreds of students.

And Yale’s position atop the law school hierarchy certainly offers Gerken the space to contemplate the ideal law school pedagogy in a way I suspect other deans can’t. She doesn’t have to worry about the size of school’s applicant pool, whether its new graduates will pass the bar in significant numbers, or whether they’ll be able to find jobs. Those are the kinds of concerns I think are consuming many of her dean colleagues in the day to day, which leaves less bandwidth for Gerken’s loftier goals for legal education. Still, it’s worth thinking through how to break down these walls between practice and theory, and Yale offers a darn good roadmap.

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Although I am Emeritus and off to non-teaching pursuits I still look at things like this and periodically wonder whether current law faculty possess a sense of the changes that have occurred over the past decades, or engaged in a real conversation about what law schools are about. Just as an example I offer several pieces written a while ago on the relevant topics. I don't expect any rush to read them but they do discuss some of the more important issues.

The University Ideal and the American Law School
Rutgers Law Review
• David R Barnhizer, Cleveland State University
Document Type
Publication Date

The first part of this Article discusses the university ideal. This is offered prior to the historical analysis of the university so that there is a critical standard against which the history can be judged. The lengthiest part of the Article then presents a still far too brief history of the development of the university as institution, the university teaching of law, and the education of lawyers. The final part of this Article offers a new approach to the study and analysis of judicial doctrine.

Citation Information
David R. Barnhizer, The University Ideal and the American Law School, 42 Rutgers Law Review 109 (1989)

Freedom to Do What? Institutional Neutrality, Academic Freedom and Academic Responsibility
Journal of Legal Education
• David R Barnhizer, Cleveland State University
Document Type
Publication Date

Our topic is whether law schools should remain institutionally neutral, presumably concerning the fundamental political and moral issues that besiege our society. The answer depends on several competing considerations, including one's concept of the university as either ivory tower or critical force obligated to serve the society that sustains it. I opt in the direction of the university as social force while also accepting the validity of the passive mode and seeing the dispassionate search for knowledge as a means to serve important human needs. The abstract formulation of the university as institutionally neutral is in many ways illusory because it stops short of understanding the true functions of knowledge, power, and mission.

The formulation I offer goes directly to the very conception of what we mean by institutional neutrality. What is it the university is to be neutral about? Obviously not knowledge, truth, precision of method, and the excitement of discovery. We must therefore be discussing the extent to which universities take stands on significant political and moral issues. And, realistically, we are not talking about institutions taking specific positions on volatile issues but about individual faculty doing so in their scholarship, their teaching, or both.

Citation Information
David R. Barnhizer, Freedom to Do What? Institutional Neutrality, Academic Freedom and Academic Responsibility, 43 Journal of Legal Education 346 (1993)

Prophets, Priests and Power Blockers: Three Fundamental Roles of Judges and Legal Scholars in America
University of Pittsburgh Law Review
• David R Barnhizer, Cleveland State University

This Article is concerned with legal scholars' intellectual and social obligations emerging from their having preempted the field of law, possessing a monopoly on legal education, and benefitting from their privileged status as intellectuals of the law. While these obligations fit under the general heading of service to the original and natural idea of knowledge, it is argued here that legal scholars and judges fulfill their obligations primarily through three fundamental roles. The three fundamental roles of American legal scholars and judges are 1) judges and legal scholars acting as reformulators (priests and prophets) of "ultimate truths" in the particular language of each culture and generation, 2) judges and legal scholars serving as societal "shock troops," and 3) judges and scholars as "power blockers."

Citation Information

David R. Barnhizer, Prophets, Priests and Power Blockers: Three Fundamental Roles of Judges and Legal Scholars in America, 50 University of Pittsburgh Law Review 127 (1988)


The Purposes and Methods of American Legal Education
Journal of the Legal Profession
• David R Barnhizer, Cleveland State University
Document Type
Publication Date

The best way to represent the focus of the essay’s analysis is by outlining its content. The Purposes and Methods of American Legal Education seeks to examine the professional, technical and philosophical dimensions of graduate legal education. It considers purposes and strategies for enhancing education while offering a critique of what I consider to be fundamental flaws and assumptions that have inhibited the qualitative development of American legal education. Along with this analysis is consideration of primary methods of teaching and delineation of what the author considers the goals of the curriculum.

The coverage of the analysis is most accurately demonstrated by its structure, as follows:

I. Who Are We Teaching and Why?
II. II. A Historical Critique A. Langdell and the “Scientific” Law School B. The Anti-Intellectual Orthodoxy of the American Law School
III. “Thinking Like a Lawyer” A. The Meaning of “Thinking” Like a Lawyer? B. Legal Interpretation as Involving the “Original and Natural” Idea of Knowledge C. Lawyers and the “Shelf” of Knowledge D. The Dynamics of Legal Interpretation
IV. A Discussion of Educational Methods A. Relatively Passive Educational Methods B. More Active Methods C. Distinctions between Educational Methods
V. An Outline of Educational Goals and Methods

Citation Information
David R. Barnhizer, The Purposes and Methods of American Legal Education, Journal of the Legal Profession

An Essay on Strategies for Facilitating Learning
Cleveland-Marshall Legal Studies Paper No. 06-127
42 Pages Posted: 5 Jun 2006
David Barnhizer
Cleveland-Marshall College of Law, Cleveland State University
Date Written: June 2006
This essay focuses on goals, strategies and techniques for the facilitation of student learning. It reflects a bias toward what can be called active learning in which students move beyond being passive listeners (and too often even less than that) and instead are prompted to travel along a continuum of becoming fully responsible and active participants in their own learning processes. The underlying assumption is that this increasingly participatory engagement with the learning environment - one constructed and facilitated by the teacher - offers great potential for increasing the quality and depth of students' learning. Ironically, it does the same for the teacher because it places a far heavier responsibility on the teacher to listen, interpret, guide and interact rather than merely "profess".
The analysis also begins from the belief that there is a convenient assumption among law teachers that the existing model of the American law school works effectively. This includes the conclusion that its methods and goals are not only appropriate and comprehensive but are being achieved. The reality is quite different. While law teachers have many positive attributes we tend to be amateurs from the perspective of the quality of teaching and awareness of the most effective ways to structure a curriculum, integrate course offerings and design and execute individual courses. Because most law professors have been extremely successful in their undergraduate and law school careers they may feel as if they are endowed by that experience with the knowledge and ability required to teach well, or they may understand their lack of knowledge and seek to compensate for that deficiency through denial and rationalization.
In any event there is no guarantee that earlier academic success bears any direct relationship to excellence in teaching. With that criticism in mind this essay examines strategies for facilitating learning. Preliminary to that analysis, however, I thought it useful to discuss briefly the history of the Langdellian Hypothesis about the scientific nature of university legal education and academic legal research and scholarship. It is this flawed hypothesis that shaped the American law school.
Keywords: Teaching, Learning
Suggested Citation:
Barnhizer, David R., An Essay on Strategies for Facilitating Learning (June 2006). Cleveland-Marshall Legal Studies Paper No. 06-127. Available at SSRN: or

Posted by: David Barnhizer | Jun 14, 2019 8:19:34 AM