April 18, 2010
Being a Law Professor
Posted by Mae Kuykendall

Despite the abundance of studies of legal education by outsiders and within law schools mandated by accrediting agencies, law professors still spend too little time thinking about their work, particularly their work outside the classroom. They think about passing on useful learning, values, and skills to students. They experiment with technology, search for ways to simulate problem solving and law-practice experience, work on classroom management, coach moot court teams, and advise law reviews. They stay busy.

Nonetheless, law professors could reflect on their role within the academic legal profession. They are mostly lawyers, but they also aspire to be scholars, to contribute to knowledge, and to bring some amount of applied knowledge and special insight to places where it's needed. Ernest Folk invested a deep scholarly knowledge in the drafting of law. He embedded into statutes an inner logic that arose from a strong scholarly capacity and extended reflection. As law professors became more drawn to an idea of writing theory that might place them intellectually on a par with other academic disciplines, the calling of the lawyer as expert draftsman lost some ground in the academy.

Blogging returns law professors to their place in a public arena. It's not a self-effacing role. But it's probably a good trend for law professors. They have to think more than ever about the public import of their work. Blogging is not quite like contributing to law-making based on long reflection and immersion in statutory minutiae, but it is a form of public service. The Conglomerate is a great source for keeping current on events and absorbing insights with long-term significance.

My reviewing of David Westbrook's book, Out of Crisis, on this blog attracted me to blogging. I've been following Westbrook's work for some time, staying in touch with him about mutual interests. I find him to be an interesting model for being a law professor these days. He doesn't blog, at least so far. But Westbrook’s work suggests a very different way of doing scholarship, and especially scholarship in the area of business. What does he do?

For one thing, he writes books of essays (many books) rather than articles. Instead of pursuing the forceful argument style of an appellate brief, Westbrook writes with a generous yet ironic tone, with an air of exploration. He asks what it is reasonable to think, and provides provisional answers.

Westbrook’s tone of inquiry doesn't produce neat doctrinal solutions. His writing does not produce recommended changes in doctrine. He has a long association with the jurisprudential skeptic Pierre Schlag, as well as a suspicion of administrators and experts. As a result, he has been devising his own model for how to be a law professor, a skeptic, and a humanist.

Although Westbrook focuses on the social aspect of law, his work is not standard “law and sociology,” or law and history, literary theory, or anthropology. Instead of studying “law on the books” in comparison with “law in action,” or using other disciplines to make legal arguments, Westbrook uses law framed as a political and social thing, deeply inside its culture, to tell us something about ourselves.

There appears to be a market for this sort of scholarship. Westbrook spends most of his time talking internationally, and usually to non-lawyers. He meets with business people, government regulators, central bankers, and even military thinkers, and academics in other disciplines, notably anthropology and economics.

Recently, he's been to Jamaica, China, Brazil, and several European countries. He will be visiting Pakistan. He has spoken to the long range planning group of the Commission of the European Union. These visits involve discussions with policy-makers about Westbrook's thinking on the law as something political and social. He also gives talks arranged by his hosts for a wider public.

Westbrook is worth watching, for what he has to say, and for his example of one way of being a law professor.

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