False Binary: Academics Who Have Not Practiced Cannot Teach Lawyers About Law

By Eric J. Miller

One thing I learned from my last post on the false dichotomy between practice and academia, and from Michael Mannheimer’s great follow up post and ensuing discussion, is that lots of people see “practice” as a straw man, and that when we start to cash out what practice-readiness really means, it turns out we mean a bunch of different things, depending upon who’s doing the training.  So unless “practice-ready” is handled with care, not only is it a straw man, but a Trojan straw man at that: one that likely to capture you unawares.

One version of the claim is that academics who have not practiced are ill-equipped to teach lawyers about law. For example: “It is questionable whether a professor with little or no practice experience is ideally suited to train students for legal practice.” Brian Z. Tamanaha, Failing Law Schools (2012).

I cite Professor Tamanaha merely to provide one, pretty powerful, source for the argument.  Because it has a wider public circulation, I’ll consider some permutations that are not attributable to him.  Treat them as straw men or not, at your leisure.

Here’s what I take to be the steps of the argument:

(1) Academics have not practiced:

(2) Practice experience is required to train lawyers how to practice;

(3) Therefore academics lack the experience required to train practice-ready lawyers.

Note that this argument goes through even if academics teach practice-relevant subjects.

There’s a different argument, one that deals with which subjects are practice relevant and which are not, that I’ll engage with tomorrow.  I’m assuming that we’re talking about who is teaching the black-letter law classes, and how they ought to do it.  Even if the argument is that we should include small drafting simulations in the course, as some of the comments on Professor Mannheimer’s post suggested, that’s not exactly a radical change, but a minor tinkering with the casebook.

If the argument that is non-practitioners are ill-equipped to teach practice then it’s quite radical.  The model of law schools for quite some time now has been to hire people who have not practiced but who have clerked.  So it ignores much of the history of the law school.  Simply put, if any adequate law school curriculum requires people with lots of practice experience to teach it, then we’ve been failing to teach lawyers for over 100 years.  I’m open to that argument, but it seems to me that it’s not the argument being pushed by people who want to get rid of the interdisciplinary stuff or who worry about faculty being distracted by the academic pursuits of writing law review articles.

And if the argument is that, in the past, before the ABA raised the standards, there were more adjuncts who did the sort of modified experiential learning, then the argument becomes: we’ve been failing to teach lawyers the core subjects for over 100 years, and they’ve only learned law in peripheries of the law school.  That may be right.  But if it is right, then the current change is not down *just* to ABA standards, but to the larger movement of law firms that no longer want to pay huge sums to train lawyers.  Practice-ready, on that view, is about shifting the cost of apprenticeship from the firm to the school (which, unless the school gets extra funding or makes cuts, means the student).

More importantly, the argument suggests that players make the best coaches.  Perhaps I’m biased because I’m a Bill Bellicheck fan, but Mike Singeltary was great at practice (playing), not so good at teaching.  Good coaches make the best coaches, whatever their experience.

If the idea is that academics are not interested in practice, or in teaching practice, I think that’s an interesting hypothesis with as yet no empirical support.  The argument amounts to: subjectively, it appears to [anti-interdisciplinary person] that interdisciplinary faculty are not interested in discussing how to draft contracts, or complaints, and so on.  In my experience, that’s just not true.  But experiences differ.  It appears to me that legal academics are in the law school rather than some other university department precisely because they are interested in the intersection of (other perspective) and law: how (other perspective) operates in (legal) practice.  Without some detailed data, however, there is no way to settle this.  I’ll discuss this feature of the “dichotomous interests” claim tomorrow.

There may be another assumption at work here, which is that some folks who teach, and especially those with no firm experience, can’t work out the basic bits of practice that include drafting a complaint and so on, or won’t recognize its significance.  But, unless there is some data to support this view, it amounts to no more than a form of cognitive essentialism: people who haven’t practiced can’t get it; it’s a practice thing, you wouldn’t understand.  But the relatively minimal amount of pretty basic practice stuff that we can deliver in the classroom doesn’t require a huge amount of practice-oriented sophistication.  It’s the sort of thing that, in my firm, we used the practice guide to figure out (how to draft a complaint, motion to dismiss, and so on, which the practice guide had cut-and-paste forms for, and which the law firm often had exemplars for) and then got a yay or nay from the partner.  It’s not rocket science, and takes very little legal experience to pick this up.

It seems to me that the challenge to reproduce in the large classroom what goes on in the firm or the courtroom or even the chambers is doomed to failure.  We can provide a tiny taste, but not the meal.  One of my colleagues, Tom Stewart, who has 23 years of practice experience, organized his class as a small law firm, and taught evidence by dividing the students into small collaborative groups making presentations to the partner.  Exciting stuff; innovative teaching; and mimicking practice, and the students loved it.  But Tom thought that this style would only work with small groups of no more than 25 or so students.  The *real* stuff that mimics practice, whether in the classroom or the clinic, occurs on an (expensive) small scale.

What the best practice-oriented folks bring to the table in the large classroom is a sense of how the law really works on the ground, as applied.  In my area of study—problem-solving courts—I’ve been lucky to be exposed to some wonderful ethnographic work that gets you into places that are sometimes not easily accessible *even in practice*.  So all that sociological and anthropological, political, historical, and so on, stuff just is really useful to work out the hows and whys and wherefores of practice.  Put differently, all the stuff that the great tellers of war stories bring to the table, so do the ethnographers, historians, or anyone concerned to understand the practice, just data rather than anecdotes.

So the idea that “academic” faculty don’t need to *or want to* know the law is rubbish.  They do—at least the one’s I know.  And the idea that they can’t convey a sense of the practice to the students is also rubbish.  In fact, what we see is an interpenetration of practice and theory, so that the good practitioners are thinking about new developments in the law, and the good academics are thinking about making connections between the stuff they teach and practice.

For an example of the former, take my colleague Mike Wolff.  Mike is a former Chief Judge of the Missouri Supreme Court, and as Chief Judge, he published an article on evidence-based sentencing that argued for risk assessments of the various programs available to offenders, so as to better inform judges as to the relevant options.  Here’s someone who meets all the criteria for practice engaging with the academy in a quite detailed and abstract manner.  (Full disclosure, he cited one of my articles).

For an example of the latter, my colleague Jeff Redding writes in, among other areas, comparative law.  His article on the rule of law in private shariah courts is based on an ethnographic study of one woman’s experience getting a divorce in one of these shariah courts.  It’s a view that usefully challenges us to think about the location of the rule of law in specialist courts.  It is certainly practice oriented, even if the location of that practice is somewhat unusual.  But even in a comparative law class, Jeff’s ethnography provides opportunities to discuss what clients get out of the legal process, how to think about alternative resolutions, how to determine the value of traditional courts from specialized ones: the sorts of things that the war story approach brings, and which is the fodder of the large class discussion about practice-ready lawyering.

I’ve been banging on about ethnography: but part of declining to entertain the Trojan Straw Man of practice readiness is recognizing that what counts as a practical orientation in a large lecture is very different from a skills course or a clinic.  More experiential learning is appropriate for the clinic and perhaps for small classes.  Using practice stuff to help students learn to identify issues, reason well with and from rules and authorities, write well, and so on, is the focus of the large class.  The range of experiences we are able to provide students in that setting is likely to be quite basic and readily discovered by those of a mind to do so.  If the argument is that more law professors ought to be of a mind to do so, then I’m in full agreement with that.

This article was originally published on 2/14/13 on PrawfsBlawg.com.  Read it here.