Practicing Law, Studying Law, and Teaching Law
posted by Bruce Boyden
I missed the party on interdisciplinary studies last week — see here for links — but it did raise a question that I don’t think was a focus of the discussion, namely, all else being equal, can interdisciplinary scholars teach law school classes just as well as “non-interdisciplinary” hires? If, as Brian Tamanaha claims, more schools are adopting interdisciplinary programs, presumably the character of their faculties will need to reflect that ambition — i.e., they will have to hire more professors who have spent relatively more time studying and relatively less time in practice. Indeed, that balance does not only pertain to schools going interdisciplinary. Larry Solum suggests that in 20 years, law schools might be taught by law Ph.D.’s, who will presumably have less practice experience than today’s non-Ph.D. law faculty. So the question is really one of scholarly credentials versus experience. Will law teaching be better, worse, or unaffected by such a shift, if it occurs?
I’m skeptical of arguments that quickly equate “different from how it is done now” (or, similarly, “different than how it was done when I was younger”) with “worse.” So that’s a danger to avoid. However, as someone who views himself as having both interdisciplinary interests and some practice experience, I feel unusually free of biases here. And at the end of the day, I lean toward “worse.”
First, there’s a major concession to be made, in response to a suggestion by Ethan Leib that school-trained professors (for lack of a better term) will have better teaching skills than practice-trained professors. That’s probably true. It’s certainly true in my own case that by far the most valuable learning experiences on how to teach came from when I was a grad student. (Rather, many of them were how NOT to teach, but I hope that’s all ancient history now.) And not only are school-trained professors likely to have more experience actually teaching, but non-law schools tend to be better at providing materials on how to teach. Law schools tend to teach teaching by throwing new profs in the deep end and wishing them luck in swimming.
Second, I’m talking about what’s worse for students in class, not necessarily what’s worse for the institution as a whole. It may benefit an institution to hire school-trained professors, at a cost of 50 utils to the content of classes like Torts and Contracts, if it pays off 100 utils to the school’s overall ranking (benefiting the graduates down the road) because of the prestige of the scholarship such hires turn out.
Nevertheless, it seems to me that as I go about the business of teaching law — so far I’ve taught five different classes at three schools — most of what I do is informed by my eight years as an actual lawyer. The questions I try to get the students to grapple with, even in a nebulous area such as Internet Law, concern the types of arguments that will persuade judges and lawyers in various situations. In other words, a large portion of my classes are spent teaching students how to engage in “lawtalk,” as Jack Balkin and Sandy Levinson have called it. How do you apply rules developed in one factual scenario to another, when our heartstrings are pulled in a different direction? How do you boil down a complicated statute or set of cases into simple but accurate language your non-lawyer client can understand and implement? How and when do you make a policy argument, or argue for an extension of existing law? How can you “creatively” read precedent so that it doesn’t block what you are trying to do? How should the law develop not only so that it’s internally consistent, but so that it actually achieves its goal, namely controlling human behavior? Does a complicated statute that attempts to grapple with difficult-to-foresee situations shoot itself in the foot by being impossible to understand and apply? Does a simple statute wind up being a black box filled by judicial predilections?
All of that arises not from anything I’ve ever read in a law review article, but from my experience grappling with these issues in practice. That’s not to say that the stuff in scholarship is worthless; I certainly enjoy reading it. And I sometimes pull in insights I’ve gotten elsewhere, e.g., the literature on law and norms. But scholarship only comes into my classes at the edges, not in the middle as it would if I were teaching a graduate seminar in, say, history. The core of the class is the world of practice.
Perhaps I’m atypical in the way that I teach. (Another problem that probably faces professors everywhere — we only have a vague sense of what our colleagues are doing in their classes.) But it seems to me that with only 5 years experience, before I started dealing with clients on a regular basis and managing junior associates; or with only 3 years experience, when I had only the vaguest sense of the various stages of a entire litigation, and what would fly in court; I would have much less to talk about in class. Or, more precisely, I would have much less to add to the discussion, and less of a sense of what separates a good legal answer on an exam from a bad one, or a good legal argument in a paper from a bad one. And, I think, the students who want to practice law would suffer, even if I spent those 3 or 5 extra years immersing myself in contracts theory, or IP scholarship, or every article ever written about Internet law.
So I agree with Larry Solum when he says that the current situation — in which the primary goal of law classes is the training of practicing lawyers, but the primary credential for law professors is scholarship that many professors, without Ph.D. training, are ill-equipped to produce — is untenable and will not stand for 20 more years. But to the extent the solution to that problem is conversion to a law Ph.D. as a requirement for teaching law, I’m not sanguine about the effect of that outcome on students.
January 22, 2008 at 7:23 pm
Posted in: Teaching
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Responses (5)
Daniel Goldberg - January 22, 2008 at 9:49 pm
I don’t necessarily agree with everything you say here, but this is an insightful post.
JrL - January 23, 2008 at 4:44 pm
Isn’t this just the natural progression of the law schools’ dislike for teachers with substantial practice experience. (And I’m not at all sure that 8 years can qualify as substantial, though it’s certainly better than many law profs….)
Bruce Boyden - January 23, 2008 at 6:15 pm
JrL, I think you’re right — at least from what I’ve heard. (My current employer is perhaps atypically practice-friendly.) At least two questions arise from this trend. One is whether legal education will suffer; I think the answer is yes, but there’s room for debate on that as I noted above. A second is what the cause is. I don’t think it’s irrational prejudice, as some have suggested. Rather, I suspect the story is one of rational responses to the market for law schools, like the one spelled out by Larry Solum in his post. I’ll summarize Larry’s post as best I can: Law profs are evaluated primarily on scholarship. Scholarship requires training in scholarship. All else being equal, practicing lawyers get less scholarly training, because (schools are now concluding) scholarship and practice do not overlap. Therefore, schools will have an incentive to hire those with more scholarly training and less practical experience.
A.J. Sutter - January 25, 2008 at 11:12 am
I definitely agree that it won’t be better for students. There’s another constituency that will be hurt by these developments too: clients.
As law professors get farther removed from practice, young lawyers will have fewer role models and fewer war stories. Sure they might get those once they start working, but sooner or later (if our fears come to pass) their mentors too will come from a generation that had significantly less contact with practitioners during their formative years. By then the lawyer’s equivalent of “bedside manner” will be far more attenuated than it is currently.
Moreover, not all law students turn into litigators. If even an 8-year practitioner like you is emphasizing litigation, consider how impossible it will be for a non-practicing Ph.D. to imagine transactional practice, much less to have anything insightful to say about it.
Bruce Boyden - January 25, 2008 at 11:57 am
AJ, as you can probably tell, *I* have trouble imagining transactional practice, although I try my best to remember that not all of my students will be litigators. Since cases by and large focus on litigation issues, and not client-counseling or drafting or negotiation-strategy issues, I think you’re right that transactional work is even more difficult to understand without having practiced.
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