Legal Commentary

Thanks to Dan for allowing me to spend the Holidays on Prawfs and greetings from Milwaukee on a cold Sunday. I am one of those people who came to legal academia on a full time basis after a lengthy career in practice. For that reason, I read Jeffrey Lipshaw's paper on "How Not to Retire and Teach" in the same way that our incoming students read books like "One L" and "Ivy Briefs."

My experience differs from Jeff's in some rather significant ways but, in the middle of my second year here at Marquette, I have some observations, mostly consistent, with Jeff's perspective.

Jeff states that it may be rather insulting to legal academics for experienced practitioners to say that they would like to retire and teach. I'll leave it to others to thrash that out. I want to tell all my old colleagues in practice who may want to go back to school that the life of a legal academic - at least an engaged one - bears little resemblance to what most people call retirement. I work harder now than at any time since my first year of law school, including my time as an associate and partner in a big firm. The difference from practice is that, with the exception of grading, I do almost nothing that I don't love to do. You may want to teach but forget the part about retirement. This wasn't a surprise to me and it shouldn't be to anyone else either.

Jeff also points out that hiring committees are concerned about the way in which the demands and language of practice may diminish one's ability to think like a scholar and that "twenty-five years of practice is debilitating, so it is thought, to the academic cranial synapses, and almost disqualifying."

While this may be a form of disrespect for practitioners and is often held by hiring committees as a prejudice rather than a concern, there is a substantial truth here. One of my areas of interest is law and theology. Last Friday I gave a talk at a CLE seminar about a paper that is forthcoming in the Mississippi Law Journal in which I address the doctrinal question of whether worship can be excluded from limited purpose public forums. That's a lawyerly question and was presumably of interest to the practitioners in attendance at the seminar which was entitled "Contemporary and Practical Issues of Church and State."

But the way I go about addressing the question (the answer, by the way, is "no") is by, among other things, applying Hugh Oliphant Olds taxonomy of worship. I argue that the various forms of traditional worship - forms that he calls kerygmatic, epicletic, prophetic and wisdom doxology - all tend to involve communication among the congregation (rather than communication to a deity), are unlikely ever to be safely characterized as, in the words of a recent district court decision, "mechanical praise," and are very likely to make claims about temporal matters. Thus worship will almost always will fit within the scope of most limited purpose public forums.

Now I don't think this approach is impractical at all. I think it helps us answer a difficult "real world" question. But it's not the way practitioners talk to one another and I could see them stretching (or maybe they were recoiling) as I tried to explain why James Cone's views on the role of worship in African American as an challenge to the authority of segregated society is relevant to answering a "contemporary and practical" question of church and state.

Nor do I think that the ability to think like a scholar is irrelevant to teaching. There is, of course, a way in which the scholarly mind can fail to convey what students need to know. As Jeff points out, legal academics don't talk about the law solely as "a self contained ssystem in which rules established in prior cases may be induced to new facts." But for most of our students during most of their careers that is what it will appear to be. The analogy isn't perfect, but think of the difference between classical and quantum physics. The former isn't quite right but it works for most purposes.

On the other hand, law school isn't a three year course of CLE. Our students don't yet know the language and instincts of practitioners and we have assumed correctly that they need to learn the "why" as well as the "what." Being encased in the assumptions of practice can get in the way of that. In class last week, a student correctly argued that certain evidence would come in under the doctrine of "curative admissibility." "You are absolutely correct, Ms. xxxx," I said, "but,in practice, you will simply say that 'they opened the door.'"

One of the reasons that I wanted to make this career change is that I wanted to think creatively about the law. That creative thinking (if we  manage to accomplish it) is expressed in scholarship, but I think it helps in teaching as well.