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Tuesday, March 20, 2007

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 ....

Posted by Beldar at 07:00 PM in Law (2007) | Permalink


Other weblog posts, if any, whose authors have linked to Preaching what we practice and sent a trackback ping are listed here:


(1) nk made the following comment | Mar 21, 2007 11:31:52 AM | Permalink

My one C in law school was in Criminal Law. I had a BA in Criminal Justice, had done an unpaid internship with the State's Attorney and been a paid employee of the Chicago Crime Commission monitoring, among other things, the progress of major felony cases in Cook County Criminal Division. All of that was a negative not a plus in my law school criminal law class. I just could not swallow and regurgitate what my professor wanted me to. (I practiced criminal law nonetheless with success if not remuneration.)

(2) LazyMF made the following comment | Mar 21, 2007 4:38:03 PM | Permalink

Bill: Here is one time I have to agree with you.

I think an important part of growing as a young lawyer is to lose your reverence for both your law school professors and the judges in front of whom you practice. For me it came my first year out of law school when I needed an expert witness in banking law/procedure case I was workign on. I consulted with a former tenured professor of mine (for money), and quickly learned that this professor who held himself out as a banking law expert (and who regularly published and updated a banking law publication) knew about as much as I did after an hour or so of my basic research.

And don't even get me started on the Catherine McKinnon, Critical Legal Studies, Posner writings and other garbage I had to suffer (although that was mostly through self-inflicted electives).

(3) houston law student made the following comment | Mar 21, 2007 6:10:03 PM | Permalink

Building on nk's comment, there are an HPD officer and a detective in the year ahead of mine both of whom said they didn't do as well as they expected for that very reason. It probably didn't help that the prof did a lot of work in prisoners rights and prison reform.

None of the professors I've had so far seem to have had any ideological agenda, but there's a distinct difference in approach between those who spent substantial time in practice before going academic and those who didn't.

(4) Jinnmabe made the following comment | Mar 22, 2007 4:57:13 PM | Permalink

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.

I consider my whole third year of law school wasted. I already had learned to "think like a lawyer" (my belief is that if you can't learn how in two years, maybe you should do something else with your life). I needed actual practical experience. Granted, a lot of it is my own fault for not being more active in seeking out opportunities to gain real experience, but I was still required to take classes on the theoretical. Every time I asked a question along the lines of "yeah, but how often does that actually happen in court?" I'd get a puzzled look and a "well, I'll have to check on that" or "well, when I was practicing [from 1977-1978], we...."

The only available classes for practical experience were "Lawyering Process" and "Practice Court". Each of which were heavy on the lecture, with what I would describe as a "token" practice experience. For example, one week we did "Cross-examining" (Beldar may remember that I wrote him an email and he was gracious enough to reply, at length, which reply was more helpful than anything I'd gotten from the professor). Tuesday, a long lecture, with war stories mixed in. Thursday, everyone got 5-10 minutes to cross-examine some other student on a pre-arranged fact pattern. Then, we never spoke of it again. How helpful was this to me? Hah.

I'm new enough now to the practice of law that I still get nervous for depositions and contested hearings where I'm going to have to educate the judge on what the statute actually says and why my opponent's argument of "yeah, so?" should not stand. But I feel like I'd be a heck of lot less nervous, and better at my job (which people who are in real trouble are kind enough to pay me to do), if the school I went to in preparation for the job, had, you know, actually taught me something useful about it.

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