One of my colleagues recently circulated for discussion an abstract of a forthcoming law review article that accuses—in no uncertain terms—the majority of legal academics of being out of touch with the reality of legal practice and inappropriately preoccupied with producing what the author terms “impractical” scholarship. See Brent E. Newton, Preaching What They Don’t Practice: Why Law Faculties’ Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy, 62 S.C. L. Rev. ___ (Nov. 2010).
Further—although he does not describe the precise mechanism relating the two phenomena—Newton asserts that this preoccupation correlates with the failure of law schools to adequately prepare students for the practice of law.
In this post I seek merely to summarize the primary assertions of the article and offer a set of questions that it raises.
FIRST PREMISE: THERE ARE PROBLEMS WITH THE CURRENT SYSTEM OF LEGAL EDUCATION.
The past several decades have witnessed marked increases in the number of law schools, law professors, law students, and attorneys.
Although these statistics may suggest that the endeavor of legal education is thriving, to the contrary, there have been mounting complaints about law schools’ failure to adequately prepare students for the practice of law.
In turn, these concerns have been addressed in a variety of fora with a variety of recommendations, most notably the 1992 McCrate Report and the 2007 Carnegie Report.
SECOND PREMISE: THE RECOMMENDED SOLUTION TO THESE PROBLEMS IS AN INCREASE IN PRACTICAL SKILLS EDUCATION.
The focus of the recommendations is an increased emphasis on practical skills education.
In particular, Best Practices recommends (1) lower student-faculty ratios; (2) more effective teaching methods, including active learning; and (3) more meaningful feedback to and assessment of students.
THIRD PREMISE: THE TREND IN LEGAL SCHOLARSHIP HAS BEEN TOWARD IMPRACTICAL SCHOLARSHIP
Newton next describes the ascendancy of what he terms “impractical scholarship” with the following observations:
– Currently, there are nearly 1,000 law reviews in the United States
– The vast majority of these are student-edited, raising the question of what are the criteria for selection and editing
– The practice of “trading up” in placements highlights the arbitrariness of the process
– The vast majority of law review articles provide little or no social utility—evidenced by the fact that 43% of published articles are never cited in a judicial opinion or other law review article
– Thus, these publication efforts represent enormous opportunity costs (what could we be doing if we were not researching, writing, and editing these articles?)
– There is less of a synergy between the academy and the bench and bar than in the past
– Law review articles use a different vocabulary than the bench and bar
– In addition, articles are also not helpful to students
FOURTH PREMISE: DUE TO THE FOCUS ON IMPRACTICAL SCHOLARSHIP, LAW SCHOOLS TEND NOT TO HIRE THE TYPES OF PEOPLE WHO CAN PROVIDE PRACTICAL SKILLS EDUCATION
Despite the observation and recommendations of the Carnegie Report and other studies, law schools persist in the practice of hiring primarily faculty who are expected to produce scholarship rather than faculty who have the aptitude and willingness to teach skills.
Indeed, the “ideal” tenure-track law professor bears the following traits:
(1) Little or no experience practicing law
(2) A commitment to intensive academic research and scholarship
(3) A teaching methodology reliant on the traditional “case-dialogue” method
Newton asserts that “the quality of teaching by such faculty members, as a class, is deficient, particularly in preparing students to actually practice law . . . .”
“Although the professoriate gives lip service to ‘excellence’ in teaching, laws schools actually devote little effort to developing effective pedagogies.”
In particular, the “case-dialogue” method as “low-cost” mode of teaching that allows more time to be spent on scholarship.
Practical skills education is pawned off onto clinicians and LRW professors.
In essence, Newton’s thesis is as follows:
We agree on the problem (lack of practical skills education), and we agree on the solution (increased skills education), but “[n]either the Carnegie Report nor Best Practices appears to acknowledge the enormous obstacle standing in the way of their proposed reforms: law schools’ increasing practice of primarily hiring impractical professors whose chief mission is to produce theoretical legal scholarship and who not only lack practical skills but also feel indifference towards (or in some cases outright disdain for) both practicing attorneys and ‘practical’ components of the law school faculty such as clinicians.”
Removal of this barrier requires changing the composition of law school faculties.
Newton presents the following basic proposals for reform, simultaneously expressing pessimism that they can be implemented in light of the structural barriers described above:
(1) Law schools should institute two tenure tracks—one for teaching and one for research/scholarship
(2) Overall, law schools should employ fewer pure research/scholarship faculty
(3) Similarly, there should be fewer law review articles published
(4) These law review articles should be peer-edited
(5) There should be faculty supervision of student editors
(6) There should also be a bifurcated system of law reviews (practical and theoretical)
(7) Teaching faculty should be required to have a substantial practice background as well as a teaching apprenticeship
(8) Use of the “case-dialogue” method should be minimized
(9) Faculty should work on active legal matters
(10) Class sizes should be reduced and more feedback should be provided
(11) There should be a greater integration of adjunct faculty
I don’t have a great deal of difficulty agreeing with the first and second premise—based at least in part on my own experiences as a law student and young lawyer, as well as the copious study that has gone into the two contentions.
Regarding the third premise, I find it quite interesting, but even if we take it as true, is there a direct link between the “practical” versus “impractical” nature of scholarship and a law school’s commitment to training law students with practical skills?
A separate but related question unexplored by the article is what does it mean for scholarship to have “social utility”? Is this, in fact, the goal of legal scholarship? And if we do want legal scholarship to have relevance to the bench and bar, how is this best achieved? It does not seem that simply reducing the volume of scholarship addresses the issue of relevance.
The fourth premise is to me the most suspect. Just as there are scholars in all disciplines who may lack good teaching instincts, so there are practitioners who lack these instincts and abilities as well. Is it true that academics who lack practical experience are unqualified to teach practical skills, such that the primary focus of reform should be change in the composition of law school faculties? Or are there other avenues of change—for example, greater training in, discussion of and assessment of teaching methods, or curricular changes—that would be more effective?
Another important question raised but not fully explored by the piece is whether it is effective and/or appropriate for some faculty members to specialize in skills education—in particular, clinicians dealing with live-client scenarios. If so, how should a law school respond to the fact that not all students will be able to participate in a clinic?
On a related point, what is the role of LRW professors and simulated practice scenarios?