Legal Commentary

The posts by Rick and by Kristen Holmquist below on legal education are very interesting.  I also recommend both Jonathan Adler's post on the subject at the VC, as well as the comments on it (sometimes because they are right and sometimes because they illustrate some deeply held views about legal education).  Let me add two or three cents.

First, as some of the comments to Adler's post demonstrate and despite what some of his commenters seem to think, the distinction between "practical" and "theoretical" or "academic" law teaching, or between legal academics with significant practice experience and those with little experience, does not track the left-right divide.  Some left-leaning legal academics, including many who write on theoretical questions, have significant practice experience and bring it to bear in their teaching and scholarship.  Some right-leaning legal academics, or those who use methods generally associated with more conservative political views, have little practice experience and write more on a theoretical level and with an interdisciplinary bent (see "economics, law and").  Arguments about practice versus theory have no particular political valence.  

Second, I think Rick and Kristen are right to emphasize that a good lawyer, broadly defined, may have and need a suite of skills beyond the narrowly "practical," or at least that our sense of what makes a good "practical" lawyer should not be unduly confined.  It is important to learn how to file a complaint, and law schools probably fall down on this job; it is also important to learn how to think in a useful way about complaints, particularly if the occasion demands more innovative thinking.  Neither the good and the best nor "practical" and "abstract" thinking are enemies here.  A number of the commenters on Adler's post make the point that some of their greatest value as lawyers comes from an ability to think broadly and in a sophisticated fashion about their work, and that they learned those skills from more theoretically oriented and less practically experienced teachers.  None of this is to say that there isn't room for much more focus on skills and basics, or for that matter that teachers with practical backgrounds will necessarily lack the skills to teach this kind of high-level thinking.  Law schools could do a much better job at this kind of thing, and many of them have strained to do just that in recent years.  It's just a plea against narrow thinking about what constitutes the lawyer's skill set.

Third, while I think there is much more room for law schools to focus on and hire for practice experience and practically oriented thinking and teaching, I think critics of the current model overstate the supply of qualified and practically oriented teachers who would be willing to do the job full-time.  I don't want to be unduly provocative in saying that.  Certainly there is a meaningful supply of potential applicants who fit that bill.  But my experience in past years on hiring committees (I am not referring to this year's applicants) has been that not all the focus on more theoretical and less experienced legal academics is simply a result of some anti-practical bias on the part of hiring committees.  Many lawyers with years of practice experience apply for teaching jobs, and some are both clearly terrific and unfairly neglected on the market.  But a number of those applicants strike me as less than stellar.  Not all their practice experience is terribly impressive, they show no particular vocation for teaching, and to the extent that we extend the practice vs. theory debate beyond teaching to scholarship, they give no strong evidence of being likely to contribute in a serious way to "practical" or doctrinal scholarship.  Even if we took a broader view of what it means to be a "well-qualified" teaching candidate, some practitioner applicants would not meet that test.

The reasons for this are complicated, and it's difficult to sort chicken from egg.  Perhaps some talented prospects drop out of practice earlier because they believe the market prefers a more academic candidate; perhaps fewer talented practitioners apply for teaching jobs because they believe it would be fruitless given the tastes of hiring committees.  Perhaps some of the most talented practitioners want to, well, practice, not teach.  Nor should we neglect the increasing wage differential between high-level practicing lawyers (excluding those in public service, which is an important exception to be sure) and legal academics, which may affect the applicant pool.  These are all important points to consider, and perhaps if law schools were less biased toward academic types and more favorable toward practitioners, we would see a different supply.  I certainly think not every law school need model itself after the stereotype of the Yale professor in selecting its applicants.  But our discussion of the future of the law school should not totally ignore those very pertinent facts on the ground, even if it would be more politic to do so.

Finally, our discussion of the practice vs. theory, or experienced vs. inexperienced, debate in the law schools should not ignore the huge stock of very experienced and skilled practitioners who already fill our law schools at all levels.  Most law schools already take tremendous advantage of both adjunct teachers and clinicians.  (The ambiguity in the phrase "take tremendous advantage" is intended!)  Students with a strong practical bent already have a ready supply of teachers who fit that bill, and many of them avail themselves of those opportunities.  There are strong grounds to argue that both adjunct and clinical teachers deserve much more attention and respect than they get at many law schools -- alas, too many faculty are barely aware of the names and backgrounds of some of the most interesting and beloved teachers at their own schools.  In a sense, asking most law professors to weigh in on the practice vs. theory debate is a mistake because law professors don't always know their own schools; we would be better off asking the deans and associate deans who actually hire and deal with adjunct and clinical instructors and know just how strong the enrollment in those classes already is.  In any event, the idea that modern law schools are all theory and no practice tends to focus only on tenure-track legal academics, and not enough on the substantial number of practically experienced lawyers who do a great deal of teaching at most law schools, either in the clinics or on a part-time basis.

In my typical, painfully moderate fashion, and against a few of the commenters on Adler's post, I just don't see why, even if we neglect Rick and Kristen's broader arguments about the kinds of skills we should value in teaching lawyers, we have to argue for law schools being all theory or all practice, either academic departments or trade or professional schools.  There is room for both, and both have value, both to the law and to law students.  To an extent not always recognized in this debate, we already do both.  Arguing about the proper mix seems legitimate to me; arguing that it is a zero-sum game, or simply assuming that the doors of law schools are being beaten down by superb practitioners who would be superb teachers and/or doctrinal scholars and who want to do so on a full-time basis, does not.