November 20, 2011
Theory and Practice in Legal Education and the NY Times News Cycle
Posted by Erik Gerding

Others have already contributed more thoughtful reactions to today’s New York Times front page indictment of legal education, than I can. But, let me offer a few thoughts of my own. Because the article places a premium on practical experience, I’ll borrow a page from my 8 years in practice and offer a bullet point list:

1. Practice for the long haul: I wholeheartedly agree that law schools should be doing a better job preparing graduates for practice. Yet there is a substantial difference between preparing a law graduate to practice on day one and preparing a graduate for practice over her entire career. Law students should get a generous helping of training in legal analysis and legal skills so that they can hit the ground running. But they also need other tools if they are going to succeed and perhaps even enjoy legal practice over the long run. Legal theory of various stripes, much maligned, gives graduates the context of “why.” “Why does the client want to do this deal?” “What is the regulator’s concern here?” “What can we accomplish for the client with this litigation?”

Young graduates are not going to get this context in practice – whether they work for a law firm, a public interest organization, or the government. There is no time and little immediate incentive to ask these questions when you are working 70 plus hours a week. There are also few mentors available to answer “why” questions.

But if legal graduates are going to get their heads above water and carve out a long term career for themselves, they need to think about why. They need to retain their ability to think creatively. A lot of the “law and…” courses give graduates a framework for thinking about legal problems that they can use, if not in year 1, hopefully in years 5, 6, 7 … And graduates will certainly need a larger framework and broader perspective if they hope to change the law. Or do we not care about that?

Law schools need to get students jobs today, but we should not let our time horizon switch to the equivalent of educational day trading.

2. Don’t judge teaching by a professor’s ssrn page: A professor’s scholarship is not always an indication of how she teaches in the classroom. I’ll use myself as an example. My scholarship is theoretical. My teaching is much more nuts and bolts practice oriented. I look to give students what I wish I had learned before I practiced.  

3. Judges are generally not the audience for scholarship: I don’t really care if my scholarship is cited by the Supreme Court. That is not the audience I am writing for. I would hazard a guess that many professors are like me and write (not only for other legal academics) but for Congressional staff, regulators, practitioners, industry participants, consumer groups…

Plus, why would an academic aim to write for Supreme Court justices? I thought all they did was call balls and strikes. If judges are not interested in scholarship, why write for them?

4. Some courts do read scholarship: As Matt Bodie pointed out in the blog a few days ago, some judges, like those in the Delaware Court of Chancery, are active readers of legal scholarship.

Now that the bullet points are out of my system, there is a lot that the NY Times article gets right. Brian Leiter, by no means a legal practice freak, asked a few weeks ago why schools weigh research potential so much more than any other factor in hiring. Scholars with advanced degrees in other fields play a vital role in legal education, but would students want a whole school of professors with no practical experience? Perhaps, but only if the school is so highly ranked that students can get jobs regardless of the content of their education but because employers will hire them as the school super-selectivity means it has already cherry-picked the brightest young things. The thing about selectivity and school competition though, is that by necessity only a few schools can get away with this.

Of course, lots of schools want to be Yale and lots of professors want to be at Yale. So do what Yale does. We need to pay close attention to law professor incentives. If you want to move up the academic ladder, publishing is paramount, placement is prestige, and citation counts are crucial. So you have to write something that will appeal to a student law review editor at a top journal (who also cares about how often the piece will be cited in the future). This is not news.

But there is one feature of citation counts that has been “under-explored” (to use one of the most “over-used” phrases in law review speak). It tends to result in professors writing on topics that appeal to a much broader audience than just the specialists in their field. This tends to lead to a surplus of articles on “My New Theory of Law.” (To give law review editors a preview of my next piece, I argue that “law” should be thought of by imagining its under-theorized, polar opposite, “wal.”) Some of this ambitious work is quite good. But the question is what happens when too many professors have the same ambition.

This little rambling post started out as a critique of the Times article, but ends with a warning that the legal academy should not get too satisfied. There is great danger is thinking backwards from “this is what I have always taught and wrote” and “this is what will get me ahead” to “this is how the law school ought to function.” There is a real crisis in student employment and law schools need to keep nimble and keep rethinking legal education. But let’s have a sensible mix of practical and theoretical education that prepares students for a longer horizon than the NY Times news cycle.

(By the way, anyone want to bet on how long it takes the NY Times to run another path-breaking story on the crisis in legal education? My guess is three weeks – right before Christmas.)

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