Preaching And Practice: The Nature of Legal Education

Kristin Scheuereman’s thoughtful post on legal education mirrors a debate that has broken out on the law blogs on the nature of legal education and its relationship to what lawyers really do. The critical stance is represented by a forthcoming piece in the South Carolina Law Review entitled Preaching What They Don’t Practice: Why Law Faculties’ Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy.  The author, Brent Newton (an adjunct at Georgetown) argues that law schools are populated by faculty that have very little practice experience and are far more interested in theory and the more esoteric and sexy elements of the law than in the day to day practice that most of their students will be concerned with. (Even at schools like Harvard, most students do not go on to specialize in constitutional cases of the first impression or international regime change.) An elaboration of the critique is that most law faculty could not – because they never have – first chair a complicated civil case or corporate acquisition.

In response, the argument is that law school is not trade school and the extensive practice experience does not necessarily correlate – in fact may be inversely related to (because, among other things, one can no longer remember what it was “not to know”) – with the ability to teach. Those who have been absorbed with the law as it is may have a hard time engaging in scholarship about the law as it should be.

While I agree with Ed Fallone that Marquette does better than most at teaching skills and at reaching a the right balance between theory and practice, I think that we all can benefit from attending to the debate. Both perspectives have merit.

I came to full time law teaching with more practice experience (twenty six years) than a handful of faculty around the country.  I can – and have – first chaired complicated civil cases and a number of domestic and international acquisitions. I agree that most law school faculty have very little practice experience and often don’t know it. Three to eight years as an associate at a large law firm does not make an experienced lawyer. In fact, I would argue that, even in the rarefied air of a Big Law Firm, a person has no idea of what the practice is really about until they spend a few years as a partner. That divide is about a lot more than money and prestige.

But even my own experience is limited. Most students at most law firms are not going to become part of Big Law (perhaps to their professional and personal gain) and will face different challenges that I faced as a litigator at a mega firm and (essentially) the only lawyer for a privately held firm with operations around the world. In particular, they will face pressures for efficiency and a need to demonstrate the emotional intelligence required for those in a helping profession that are, while not absent, far less acute in big law firms.

To take it a step beyond, law faculties are often made up of people who, in the words of someone who will forever remain unnamed by me, have deliberately rejected the values of the legal profession. I think of the story of a member of a faculty hiring committee (not Marquette) who said that she did not want to see candidates come to interviews with a brief case. This, in her view, showed that a candidate had not “turned away” from the law firm – as if that were a prerequisite for a successful career as an academic.

But yet … but yet … there is truth in the rejoinder of those who say that the criticism misses something. My experience tells me that for two reasons. The first is that I did find (as I expected to find) that moving into full time teaching and scholarship would challenge me and force me to stretch myself. It took work to find my place as a scholar. It took, to be honest, even more work to find my groove as a teacher – something that I think I am only beginning to accomplish.

Finally, as I explained to my Law & Theology seminar last Friday, we were embarking on a course that use terms (deontology, teological, and hermeneutics) and read sources that you aren’t probably going to ever put into a brief. Yet I think it is relevant to being a lawyer.

But there is more. I still practice a bit. I have found that that – particularly in litigation – I practice differently (and better) than I used to. In the next few posts, I’d like to explore how these countervailing perspectives can be reconciled – as my own experience tells me that they must be.

Cross posted (with modification) at Prawfsblawg

This Post Has 2 Comments

  1. Bruce Boyden

    Great post, Rick. As someone at the upper end of your “3-8 years of practice,” though, I’m curious what it is you think professors with experience in that range are missing. I didn’t stick around long enough to go up for partner, but I worked very closely with a few and observed what it was they (and increasingly, I) were doing. One observation was that the transition from associate to partner in a large law firm is a transition from a larger proportion of hands-on legal practice (writing and filing briefs, doing research, advising clients on the content of the law, marshaling evidence, even appearances in court) to a larger proportion of business management: managing resources (associates, staff, and other partners) and managing clients–keeping current clients happy and bringing in new clients. All of that stuff is challenging and, it seemed to me, rewarding, but not really “the practice of law” in some fundamental sense. Pretty much any large business involves coordinating resources and keeping clients (and suppliers) happy. It didn’t seem that legal training was particularly important for acquiring that skill-set–if anything, an MBA would be. But if “the practice of law” has some core substance that cuts across both large firm work and includes small firms, solo practitioners, prosecutors and criminal defense attorneys, public interest groups, government lawyers and regulators and the like, I don’t see how large firm management skills can be an essential part of it.

  2. Nicholas McNally

    Excellent post. While in law school, I found that professors who had spent a significant time in academia approached the material very differently from professors who entered academia as a second career. For example, my criminal procedure professor was a former prosecutor, and so brought a great deal of real world experience. Additionally, now as a professor, he is far more critical of actions and search tactics by police.
    I also think that more often as time progresses, law schools are seeing more students who may not even want a big firm lifestyle. They would rather work for a small firm where they gain more responsibility, and more client interaction, rather than having to balance office politics with concerns of billing enough hours.

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