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.

Law.com, 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.