The False Dichotomy Between Practice (Doctrine) and Academics

By Eric J. Miller

I’ve made the argument in previous postings that interdisciplinarity is necessary to understand low-level courts.  But I also believe that interdisciplinarity is an essential party of *any* law school education, elite or *non-elite*.  That’s why I’ve been so disappointed by some recent attacks—in the name of educational pluralism or practice-readiness—on interdisciplinary approaches to law as so much academic self-indulgence by faculty.  The idea appears to be that there is a dichotomy between what lawyers need to know and what “academics” teach, and that often rides on the back of an argument that what “academics” teach is fit only for those folks at the top law schools who want to become academics themselves.  I think this is a false dichotomy, and it shows a profound ignorance of much of legal practice, and certainly practice in lower courts or the non-elite end of the spectrum.

I do *not* propose some simple reorientation in the hierarchy of value between doctrine and “academics” (especially interdiscipinarity), one over the other.  Instead I believe that a legal education that is practice focused must recognize that practice is now, in important ways, interdisciplinary *top to bottom* and that academics and doctrine interpenetrate each other.  Saving “academic” stuff for the top just perpetuates a unitary understanding of legal education phrased in terms of either/or, elite/non-elite, academic/non-academic, to the detriment of both students and practice.

My worry is that much of the good done by the recent demands to rethink how law schools deliver education and at what cost is lost by attacks on faculty at non-sweet-14 (or top 20, or top 50) law schools as out of touch, sybaritic free-loaders who belong in other university departments.  The argument that I’m calling elitist suggests that only top law schools—the schools producing academics—can afford academic indulgence.  The rest of us ought to be producing doctrinally oriented lawyers, and work that lawyers can cite.  So only folks at certain locations—in the desks or behind the podium at elite law schools—should be consuming or producing academic work, which will then be reproduced outside the law practice world.  And this kindly advice—focus on your students and on the practice, not on yourself—is given under the guise of telling us what is best in our non-elite world.

But “elite” locations for academic production really means that clinicians and non-elite law professors have no right to participate in the academic discussion—they should be doing practice stuff.  If they are doing elite stuff, they are clearly trying to exit their non-elite school or transform from clinician to elite, behind-the-podium academic.  They are not doing anything of direct value to their school, their students or their clients.  They are suspect professionally and institutionally.  They don’t belong in the lower-tier legal academy.

This view is oddly myopic and unitary.  What this view misses is the new practice of holism, one that is churned out in locations outside the white-shoe law firm (and often within those firms).  Holism *just is* the practice aspect of interdisciplinary.  Law firms and courts are looking to get more holistic—and, what’s more, it’s a style of practice that America is exporting around the world.  Most importantly, it’s a feature of the law that most practice-oriented “doctrinalists” implicitly or explicitly recognize and embrace.  If the sort of doctrinalism valued is no more than the study of statutes and state appellate and federal court decisions, and if the purpose for which it is valued treats legal practice as primarily formalistic, then the understanding of the value of doctrine is narrow, unitary, and outdated.  So the demand that lower-level law schools emphasize a narrow notion of doctrine doesn’t even reflect what most “doctrinalists” are about.

There are a number of arguments conflated into the claim that we face a simple binary choice between academic and doctrinal faculty, and that only elite law schools can afford to have academic faculty.  The emphasis on doctrinalism is certainly the essence of law school, but it has a poisonously elitist side that ill-serves students and fails to acknowledge the nature of modern legal practice.

To deal with the purpose first: it seems to me a supposition is that to be practice-ready, students need only to be versed in doctrine, because all lawyers do is write memos for partners, or (if in solo or small-firm practice) cut-and-paste pro forma legal documents (the argument that ‘writ writers’ as they used to be called are taking over the practice, either through online stuff or outsourcing or through providing legal services at the bottom end).

While there is some truth to this, it envisages, ironically, a deeply unitary view of what the practice of law is about, one that is itself elitist.  It assumes that so long as lawyers know how to churn cases into citable propositions of law or to process clients’ claims into some documentary form, then the lawyer has done her job.  I think this does describe some elements of elite practice—at least at those firms that, in the boom years, overstaffed cases and locked recent grads in warehouses to do document processing. This stuff makes the lawyer fungible: it is the stuff that the market has outsourced or downvalued, or replaced with more efficient technology.

It’s ironic then that the sort of doctrinalism that is often identified as the most valuable is stuff that mimics this view of lawyering: that rests content with regurgitating federal and appellate cases, and ignores the practice of law in the lowest-level courts, ones in which doctrine is mostly absent, and, when present, comes in as a “nuclear option” when negotiation has failed.

The truth of low-level legal practice is that it is administrative but non-bureaucratic.  It is interpersonal and interdisciplinary: it takes place in the corners of the courthouse and over the telephone.  It requires the developing and maintenance of relationships, and a strong sense of social justice.  The doctrine is vital, because at the very least it provides a broad framing of the practice and constructs the institutions in which and through which practice takes place.  But a unitary emphasis on rule-of-law doctrinalism is quickly captured by the local treatise and practice guide for most practicing lawyers; it is the variety of other knowledges that set them apart from the online forms, outsourcers, glorified paralegals, and writ-writers that, at the lowest level, are the main competition.

Now, I’m not making an economic point here. It may be the case that having too many academics on staff drive up the price of faculty, and so of law school.  I certainly think that the redistribution of wealth from those on the bottom to those on the top is the most worrisome feature of the modern law school.

But if we are to evaluate the worth of the “academy” portion of the legal academy, I think properly accounting for the value of the academic side of a legal education is essential, and there is a tendency to discount it by arguing that academics do not—and perhaps cannot-produce practice-ready lawyers.

There are four arguments I want to challenge, all of which are hidden and subversively elitist attacks on the value of some form of academic component in legal education.  They are: (1) Academics have not practiced and so cannot teach students about the practice of law; (2) Academics teach practice-irrelevant subjects and so distract students from learning about the practice of law; (3) Only doctrinal training is essential for the practice of law; and (4) Important judges’ attacks on certain “academic” subjects is dispositive for determining what is useful in practice

I’ll take them on, one by one, over the course of this week.

This article was published on February 11, 2013 on PrawfsBlawg.com.  Read it here.