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November 29, 2006

Should law professors be required to practice?

Law professors are required to teach (a little) and expected to produce scholarship (a lot).  The third part of the job description is "service," but this can mean just about anything or nothing.  Committee work, CLE lectures, conferences can all count as service, and few schools demand or even expect "service" to include any real practice of law.

Reading Neal Katyal's terrifically interesting new Harvard Law Review comment about his work in the Hamdan case has me thinking about requiring law professors to do some practicing.  Here are a few passages from Neal's piece that prompt these thoughts:

Perhaps fueled by an intense desire to move up in published law school rankings, many of the nation's leading law schools have ramped up course offerings and the number of faculty members devoted to legal theory while disparaging practitioners.  Like any excluded group, practitioners have begun disparaging the theoreticians in return.  We are witnessing one of the most significant developments in the history of American law: the majority of professors on many law faculties are now specializing in areas that are of no obvious relevance to their students' activities upon graduation....

The truth is that very few law schools today prepare students to be lawyers: this responsibility is shunted off to law firms, the judges for whom students clerk, prosecutors' offices, and others.  The obvious exception is law clinics, which do offer crucial lessons in the art of good lawyering.  But clinics, despite their many virtues, still do not reach most law students, and their connection to the theoretical law taught elsewhere in the school is often left murky.

The cost of this educational failure is massive, forcing employers to spend their limited resources on training new lawyers in the basics of their jobs.

Neal's article ultimately provides a partial defense to all the theory in law school, but it still spotlights the insights a law professor gains from working on a real case.  Of course, Neal's amazing experiences with Hamdan, one of the most intriguing modern constitutional disputes, are not what all law professors would get from practicing in their field.  But, speaking for myself, I have gotten so much from working with clients and writing amicus briefs recently, and my forays into practice have greatly enhanced my teaching and scholarship.

So why not demand (or at least expect) law professors to write a real brief or contract or will or legislative proposal every few years?

Posted by DAB

November 29, 2006 in Service -- legal profession | Permalink


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can't we keep this blog what it title says it is? a blog on sentencing issues and policies?

Posted by: | Nov 29, 2006 11:46:03 AM

Actually, the title of this blog is "Law School Innovation."

Posted by: Doug B. | Nov 29, 2006 1:08:31 PM

Had the comment even been posted on the correct blog, I think it is quite obvious -- perhaps rhetorically so -- that a discussion on deficiencies in criminal defense directly implicates the field of sentencing law. Afterall, given the incredible (alarming?) rate at which cases plea out, the ability to understand the practice of criminal sentencing has siginficant ramifications in the general practice of criminal defense.

With that said, I think the idea of at least strongly encouraging law professors to have either past or ongoing practice experience is unquestionably a positive one. Aside from the conspicuously beneficial effects of having professors teach from the perspective of a practicing lawyer (god forbid), practice allows professors to stay up-to-date on the state of the law in their field and to effectively present ideas, as well as field and answer student questions, concerning how things are actually occuring on the ground or in the trenches, choosing your own favorite cliche.

Law school is at the same time very relevant to, but very removed from, the practice of law. The ease to which this perceived reality could be remedied, at least to a certain and perhaps satisfactory extent, is the $64,000 question. I think the idea of emphasizing practice-oriented scholarship and teaching would go along way to solving this problem.

Posted by: Shawn Davisson | Nov 29, 2006 2:25:41 PM

I don't think that law professors who DO in fact practice ought to be penalized when it comes to applying for jobs. At the same time, I don't think that practice is necessarily important to teaching, because many of the practical skills lawyers learn are job specific and a class could not cover all of them.

As a case in point (and related to criminal practice) when I started my firm, I handled court appointed criminal cases for three years. I took a Public Defenders' three day seminar on what to do, then sat in court for a week to observe other lawyers (what a joy! Law students ought to be encouraged to court watch). In many of my early cases, I achieved good results because I was too stupid to do anything else. When the prosecutors didn't have discovery ready, I'd ask for a dismissal rather than a continuance (which was the prevailing wisdom) - and sometimes, I'd get my case dismissed. I'd argue impossible motions (like keeping a client who failed a drug test, one of the conditions of his release) that I'd probably be taught to drop in a class. My point is that even the best classroom teaching won't teach you the little tricks of practice specific to a particular court or judge, so what's the point? Law schools are better off teaching analysis and issue spotting as they do, though perhaps attempt to apply those skills to real life situations.

Posted by: Carolyn Elefant | Nov 29, 2006 9:34:34 PM

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