Preaching what we practice

"Not infrequently" — I suppose that would be my answer, if someone were to ask me "How often do you ridicule, mock, or just poke fun at college professors on your blog?"

That's partly a function of politics, mine being conservative (with libertarian overtones on particular issues), and a large majority of academics being prominently (often flagrantly) of the liberal/radical persuasion. Perhaps because their profession shelters them from reality, lots of college professors, including (and perhaps especially) professors in graduate schools, tend to be out of touch with it — which in turn causes them to propound ideas, theories, and arguments that range from silly to foolish to profoundly dangerous.

There are some prominent exceptions, however, and among those, the ones I tend to pay the most attention to — by reading, citing, and discussing their blog posts, for example — are a handful of blogging law professors whose views tend to correspond with my own. Most of them are on my blogroll to the right. I don't always agree with them, but nevertheless, on matters both legal and non-, I'm usually interested in what they have to say and how they say it.

Objectively, then, I ought not to have been shocked or surprised to read this statement today from the most prominent blogger among them, Professor Glenn Reynolds (a/k/a InstaPundit a/k/a the Beauchamp Brogan Distinguished Professor of Law at the University of Tennessee College of Law) — but I still was, albeit pleasantly so (boldface mine):

Ultimately, legal education is about the practice of law.

He wrote that in the context of an ongoing discussion in the legal blogosphere about the decreasing frequency of law review citations in judicial opinions. On that subject in particular, I have only one observation: But for the facts that (a) so many judges rely heavily, even exclusively, on their just-graduated law clerks to gather supporting citations for their written rulings, and (b) so many of those law clerks have just exited law review staffs and editorial boards, then (c) the number of law review citations in judicial opinions would be dramatically lower than they already are. My educated guess is that at least eighty percent of the law review citations still being made in judicial opinions are attributable to choices made by law clerks, rather than by the judges for whom they work. Nevertheless, on the broader subject of law schools and legal education generally:

That simple sentence from Prof. Reynolds ought to be tattooed on the inside of every law professor's eyelids.

And it's not just the liberal professors' eyelids that need tattooing. Some of them actually do grasp the concept, even if they're inconsistent in its application. Mark Tushnet, for example — now at Harvard Law, and certainly one of the most radically hard-left law professors in the country over the last couple of decades — was visiting at Texas during my first year of law school, and he taught my freshlaw federal civil procedure course. The first assignment he gave us was to draft a federal court complaint that would survive a "motion to dismiss for failure to state a claim" under Rule 12(b)(6) of the Federal Rules of Civil Procedure. That was an amazingly practical assignment!

Of course, the claim that we were directed to plead was on behalf of a hypothetical prisoner challenging the conditions of his confinement as cruel and unusual punishment. By the second or third week of class we were discussing how the caselaw on class actions under Rule 23 could be critiqued through the lens of Marxist dialectic. And surely if any law school courses could be expected to teach students nuts-and-bolts stuff about the practice of law, courses in civil and criminal procedure, state and federal, ought to do so. But I still give Prof. Tushnet credit for at least that one passing nod to the notion that legal education, ultimately, ought to be about the practice of law.

Mind you, I am not suggesting that all or even most legal education should be nuts-and-bolts stuff, nor that legal theory ought to be short-changed at the expense of the purely practical. But neither should law schools be conducted, as so often seems to be the case, on the premise that their mission is to produce more law professors. And legal scholarship — specifically including the books and law review articles that law professors write — ought usually to have some intended audience besides other law professors.

Now if we could just get an actual practicing lawyer onto the SCOTUS ....