A Skunk In The Ivory Tower

I first heard about Brent Newton’s article from Luke Gilman in a comment here, and thought so well of it that I kept the link despite my “no links in comments” policy.  This was a keeper.  It had a long title, Preaching What They Don’t Practice: Why Law Faculties’ Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy.

So who is this Brent Newton, who feels that he’s got the juice to stink up the academy?  Berman provides the first footnote to the article:

Deputy Staff Director, United States Sentencing Commission; Adjunct Professor of Law, Georgetown University Law Center and Washington College of Law, American University…. The opinions expressed here are my own and should not be attributed to any of them or to the United States Sentencing Commission.  My perspective on legal education has been informed by having taught 32 law school courses – both doctrinal courses and “practical” courses – as an adjunct professor or lecturer while working as a full-time practitioner (including as a public defender for sixteen years).

Sixteen years in the trenches as a public defender before going to the U.S. Sentencing Commission is a pretty impressive resume.  For a practitioner.  But an adjunct, even at Georgetown law?  Feh.  A person of dubious distinction in the Academy.  But having gotten his “rant” published, the “real” lawprofs are constrained to recognize it.  Hear that sound?  It’s the wagons circling.

Newton’s abstract is rather lengthy, but it beats the hell out of reading the whole law review article, and captures the idea.

In response to decades of complaints that American law schools have failed to prepare students to practice law, several prominent and respected authorities on legal education, including the Carnegie Foundation for the Advancement of Teaching, recently have proposed significant curricular and pedagogical changes in order to bring American legal education into the twenty-first century. It will not be possible to implement such proposed curricular and pedagogical reforms if law schools continue their trend of primarily hiring and promoting tenure-track faculty members whose primary mission is to produce theoretical, increasingly interdisciplinary scholarship for law reviews rather than prepare students to practice law. Such impractical scholars, because they have little or no experience in the legal profession and further because they have been hired primarily to write law review articles rather than primarily to teach, lack the skill set necessary to teach students how to become competent, ethical practitioners. The recent economic recession, which did not spare the legal profession, has made the complaints about American law schools’ failure to prepare law students to enter the legal profession even more compelling; law firms no longer can afford to hire entry-level attorneys who lack the basic skills required to practice law effectively. This essay proposes significant changes in both faculty composition and law reviews aimed at enabling law schools to achieve the worthy goals of reformists such as the Carnegie Foundation.

This is nothing new to practitioners, and has been the subject of numerous posts around the blawgosphere.  But we’ve long been dismissed by the scholars as advocating turning law school into a “trade school” and ignoring higher order thinking and the philosophical considerations that distinguish law as a profession.  They scoff at us, stupid trench lawyers, who have to work for a living because we’re too dumb to think important thoughts like lawprofs.

Thankfully, Newton is a mere adjunct.  For those of you who don’t appreciate the significance of this, adjunct lawprofs are smarter than the average bear, but unworthy of tenure track.  They may wear Harris tweed, but their elbows will never be adorned with leather patches.  They are tolerated.

And so, the lowly adjunct must be taught a lesson.  Rick Garnet at PrawfsBlawg goes for the throat.

Critiques like this are nothing new, of course, and (just as “of course”) have some bite.  But, they can be (and I worry that Newton’s might be) overstated.  Sure, we all remember (or know!) legal scholars and law teachers who seem way-disconnected from the practice of law and who we cannot imagine actually advising a client, putting together a deal, or arguing a case.  But, the suggestion that — even at those awful, top-tier theoretician-factories that Newton has in his sights – faculty members who are hired not only to teach skills and doctrine but also to investigate and reflect on the history, animating principles, normative failings, etc., of our craft and tradition (our learned profession) “lack the skill set necessary to teach students how to become competent, ethical practitioners” seems too sweeping.  The suggestion reflects, I suspect, a narrower-than-mine view of what it means to be a “competent, ethical practitioner” — a real lawyer.

Since this is nothing new, Garnet digs out an old critique, it being unworthy of wasting time on novel thought.

In my own view, for what it’s worth, it would be very sad if the lesson that law schools took away from all this is that they should become more narrowly technical and practitioner-preparatory in their approach.  In my view, law school needs to be *more* interdisciplinary, and the study of law needs to be approached *more*  like a humane discipline, than they currently are.  The world does not need, really, blinkered-but-efficient-and-proficient technicians; it does need, though, lawyer-citizen-leaders who are well read, ethically sensitive, public minded, and theoretically sophisticated.  There are huge problems with the profession, I think, but the answer to those problems is not, it seems to me, for law schools to resign themselves to the relatively unambitious task of providing fodder for the current (or post-crash) law-firm machine; instead, we need to produce people who have the ability and intellectual resources to transform the profession and help the profession to be what it should be.

This sounds, I admit, abstract and Ivory-Tower-ish (almost a caricature of out-of-touch tenured academics’ self-important musings), even elitist.  I am uncomfortable with that.  To be clear, I think *practicing* law is (or, at least, should be) both “fun” and “useful” (it has certainly be fun for me!).  The disdain for everyday law practice that one sometimes encounters in the more rarified precincts of the academy is, at best, off-putting.  My sense, though . . . is that the *practice* of law, properly and richly understood, is . . . more (deeper, bigger, harder) than I think people give it credit for. 

No, I’ve got no clue what he’s actually say either, although it seems as if there’s something substantive to “the *practice* of law, properly and richly understood, is . . . more (deeper, bigger, harder) than I think people give it credit for,” thus demanding that lawprofs to “produce people who have the ability and intellectual resources to transform the profession and help the profession to be what it should be.”

But if you want dismissive disdain, look to the comments to Garnet’s post.  From Brian Leitner :

 


The critique isn’t just overstated, it’s full of undocumented and baseless slander. Where are all those law professors who disparage practicing lawyers and judges?

And from Dave:

The idea is that law students should have a variety of different courses, some more practical and some more doctrinal, that contribute to a varied and rich experience of understanding the law. This is the antithesis of the notion that all law classes must be taught in the same way, and that either practitioners or theoreticians represent the sole acceptable model for a law professor.

Another major flaw of the article is its tendentious claim that adjuncts who are engaged in practice are better teachers than regular faculty. The evidence for this assertion is terrible for three reasons. First, it comes from only one law school (Houston), and there’s no reason to think that school is typical of all law schools. Second, perusal of the footnote shows that the difference may be trivial (.14 on a 5 point scale), especially because there’s no attempt to determine if it’s statistically significant. Third, and most important, there’s a real question whether student evals are a meaningful measure of quality teaching. Some studies have suggested that evals reflect cosmetic things like attractiveness rather than whether students actually learn. I[f] adjuncts bring a useful and important perspective to law education, but it’s inane to suggest that all adjuncts are systematically better than all regular faculty (and I think the reverse assertion would also be inane).

 

Then Ian Bartum.

 


Part of the difficulty I have with Newton’s piece (and others like it) is the seeming desire to conflate abstract and practical education, or at least to value the latter over the former. Both, in my opinion, are necessary parts of legal training: lawyers must be able to both write interrogatories AND think critically about the law and our social institutions. This is part of what separates lawyering from other trades. (And, not to belabor the point, but many law graduates will not spend their lives drafting pleadings. We also train statesmen–60% of the current senate and 3 of last 7 presidents–, judges, clerks, activists, academics, etc…)

The predicate for Newton’s article, that tenured lawprofs are obsessed with writing theoretical articles and have little or no practical experience, is utterly ignored by is detractors who attribute to themselves adequate, if not vast, practice experience and take no responsibility for law review articles like this serious doctrinal effort, Harry Potter and the Half-Crazed Bureaucracy

, 104 Mich. L.R. 1523.  I shutter to think of the richness of the law without this.

But if you think things look dark at PrawfsBlawg, it’s nothing compared to the sly Professor Bainbridge, who understands that the most effective way to ridicule and diminish an idea is to take it as one’s own, then twist it until it’s unrecognizable.  He begins by calling Newton’s article a “rant”, then goes on.

Maybe 20 years ago law schools valued things like high grades, law review membership, and prestigious clerkships. Not any more, however. As far as I can tell, what is valued these days are:

  • Ability to network with people you knew in graduate school that got hired last year
  • Having a PhD
  • Having multiple publications, even if they demonstrate the author’s utter lack of doctrinal knowledge or inability to do basic legal research
  • Knowing what Rawls (or Dworkin) would think of X
  • Being able to run linear regressions
  • Being able to run regressions about what Rawls would think about X

Not that any of this has a goddamn thing to do with the practice of law. Hence, while I disagree with the factual claim, it’s hard for me to disagree with the next part of Newton’s rant:

Could [a typical law school] professor whose primary scholarly interest is criminal law and procedure effectively prosecute or represent a criminal defendant at a felony trial? Could such a professor who writes law review articles about the First Amendment effectively represent a client in a civil rights litigation?

Of course not, Bainbridge argues, which is why law schools should go back to the old ways, hiring lawprofs based on “high grades, law review membership, and prestigious clerkships.”  He then closes with a move that blew my socks off:

PS: I don’t use rant pejoratively. A good rant is a thing of beauty.

Followed by a video of Howard Beale in Network, driven insane, screaming he’s mad as hell and not going to take it anymore. That Bainbridge is tricky character. 

Remarkably, not one lawprof squarely faces, no less addresses, the point, that law schools overvalue the theoretician for the purpose of promoting scholarship and undervalue the practitioner for the purpose of teaching students how to become lawyers.  The host of strawman arguments aside, not to mention disclaimers that while other law schools may be like that, my law school is wonderful, try to land a tenure-track job in a law school if you’ve got any hard practical experience under your belt and see the reception you get.  You’ll be warmly welcomed.  Like the village idiot.

8 comments on “A Skunk In The Ivory Tower

  1. John

    Wasn’t our most recent Elected Supreme court justice, on of them Teaching attoney’s that have NEVER seen the inside of the courtroom…..

    Couldn’t resist, thought you needed some humor for the day

  2. SHG

    Aside from the fact that Supreme Court justices are appointed, not elected, you are quite right.  It would be nice to have a justice who has stepped foot inside a courthouse.

  3. Max Kennerly

    Allow me to defend the reputation of Temple Law School, my alma mater, which prides itself on a “practical” focus, and thereby takes a hit on its “reputation.” The current Dean spent about a decade in private practice, including as a solicitor for the City of LA and an AUSA in EDPA. The prior dean — my mentor — was a litigator with the NAACP for many years, then was a litigator in the DOJ’s appellate and civil rights divisions (under Carter, back when the DOJ actually enforced civil rights laws).

    Similarly, a number of the adjuncts have serious practice experience. Ellers, for example, who taught me securities regulation, spent a couple years at the SEC, then a couple more with his name on a real law firm with real clients, then went off to launch casinos, before retiring and coming back to the school to teach securities, corporate transactions, and gaming law, stuff he knows and has actually practiced.

    Just sayin’. Maybe it’s the exception that proves the rule.

  4. Jason Wilson

    Scott,

    Of the posts and comments on Newton’s article I’ve read so far, you take home the prize for the link to Harry Potter & the Half-Crazed Bureaucracy. Talk about making a point.

  5. Andrej Starkis

    The reality gets lost in the debate. “Where are the statistics?” “Where is the evidence?” “Mr. X speaks from a [pick your pejorative] platform.”

    Instead, ask yourself whether upon graduation from law school you were (1) ready for the bar exam and (2) prepared to practice law. If the answer is No, there’s your evidence. Have a nice day.

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