Legal Commentary

A number of law-blogs have taken note of this paper, by Bruce Newton, called "Preaching What They Don't Practice:  Why Law Faculties' Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy" (Phew!).  (See Bainbridge, Caron, Law Librarian, etc.)  Here is Newton's 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.

Critiques like this are nothing new, of course, and (just as "of course") have some bite.  But, they can be (and I worry that Newton's might be) overstated.  Sure, we all remember (or know!) legal scholars and law teachers who seem way-disconnected from the practice of law and who we cannot imagine actually advising a client, putting together a deal, or arguing a case.  But, the suggestion that -- even at those awful, top-tier theoretician-factories that Newton has in his sights -- faculty members who are hired not only to teach skills and doctrine but also to investigate and reflect on the history, animating principles, normative failings, etc., of our craft and tradition (our learned profession) "lack the skill set necessary to teach students how to become competent, ethical practitioners" seems too sweeping.  The suggestion reflects, I suspect, a narrower-than-mine view of what it means to be a "competent, ethical practitioner" -- a real lawyer.

Nearly a year ago, responding to a claim (similar to Newton's) at the WSJ Law Blog that difficult economic times might result in a turn toward the "useful" in law schools ("Perhaps the focus will be more on teaching students on how to draft interrogatories than on reading John Rawls. If we?re reading Gerding correctly, law school may become less fun, but perhaps more useful."), I wrote: 

In my own view, for what it?s worth, it would be very sad if the lesson that law schools took away from all this is that they should become more narrowly technical and practitioner-preparatory in their approach.  In my view, law school needs to be *more* interdisciplinary, and the study of law needs to be approached *more*  like a humane discipline, than they currently are.  The world does not need, really, blinkered-but-efficient-and-proficient technicians; it does need, though, lawyer-citizen-leaders who are well read, ethically sensitive, public minded, and theoretically sophisticated.  There are huge problems with the profession, I think, but the answer to those problems is not, it seems to me, for law schools to resign themselves to the relatively unambitious task of providing fodder for the current (or post-crash) law-firm machine; instead, we need to produce people who have the ability and intellectual resources to transform the profession and help the profession to be what it should be.

This sounds, I admit, abstract and Ivory-Tower-ish (almost a caricature of out-of-touch tenured academics' self-important musings), even elitist.  I am uncomfortable with that.  To be clear, I think *practicing* law is (or, at least, should be) both "fun" and "useful" (it has certainly be fun for me!).  The disdain for everyday law practice that one sometimes encounters in the more rarified precincts of the academy is, at best, off-putting.  My sense, though . . . is that the *practice* of law, properly and richly understood, is . . . more (deeper, bigger, harder) than I think people give it credit for.  It is absolutely the role of good law schools to produce good lawyers; I'm just suggesting that the problems with the structure of the profession have not shown that the way to produce good lawyers is to shrink our understanding of what it means to be a good lawyer.  The big-firm model of legal-services delivery seems messed up and dysfunctional, no doubt.  I'm pretty sure, though, it's not because students have been reading too much Rawls.  (Well, maybe it is.  But it's not because they have been reading too much Jacques Maritain or Thomas Aquinas.  =-)  ). 

I think what I wrote is true, and is also responsive to some of what Newton is worried about.  To be clear:  It is essential that law schools provide, value, and reward the best possible legal-skills training to those students we are training to become lawyers.  But, it is also essential to remember -- those in the practice who are criticizing legal education need to remember -- that we are not only "training lawyers"; we are also forming professionals:  citizen-leaders and teachers who play a vital role in the project of securing and defending the rule of law in the service of the common good, as well as in helping people avoid and solve technical legal problems.  To say this is not to defend all hiring practices or all law schools' practices; it is just to warn against embracing too quickly a too-quick criticism.