Criminal Law Professor Michael O’Hear of Marquette Law School, famous for its “we don’t teach nobody to be stinkin’ lawyers” approach to education, provides a fascinating insight into how scholars go astray.  In this post at PrawfsBlawg, O’Hear asks some questions about how best to throw a party.  He calls it a conference.

First, a bit about O’Hear for those who may not be familiar.  A 1996 Yale Law grad, he clerked for Connecticut District Court Judge Janet Bond Aterton, of Ricci v. DeStefano fame, before getting a job with Sonnenschein Nath & Rosenthal in Chicago doing civil and criminal litigation.  After three years, he joined the faculty at Marquette Law School, where he’s described as:

Reading this query, I was constrained to begin with the fact that O’Hear, who I assume to be smart as a whip, has substantially less actual experience than your basic public defender.  To the extent that he’s got anything to say about criminal law, procedure or sentencing, it’s theoretical.  He can’t even claim a stint in the U.S Attorneys office to say he’s got the chops to talk about the practice of law.  And yet he teaches it to future lawyers?  It’s a fascinating thing, scholarship.  So high-brow, yet so disconnected.

But when it comes time for conferences, O’Hear takes the position that the larger community, students and practitioners, should be allowed in the door.  Here’s the line that caught me:

I’ve found that law students and practitioners, while perhaps not as steeped in the scholarly literature as academics, often have valuable comments and questions that inject important practical considerations into scholarly discussions.

The first curiosity is the lumping together of students and practitioners, who O’Hear notes, “often have valuable comments.”  By feeling compelled to mention this, he suggests that this is something that other academics would dispute.  Of course, students and practitioners are fundamentally similar, as far as scholars are concerned, neither being “steeped in the scholarly literature.”  To me, there are a few distinctions worthy of note, but then, I’m a practitioner.  What would I know?

In the past, Marc Randazza has characterized the doings of academics as a “circle jerk,” a phrase which  at least one finds “juvenile”.  Yeah, well, it may be but it’s just so darned descriptive.  The question that demands an answer is why bother to hold a conference at all?  Is there a purpose to all this scholarship, aside from getting tenure or gaining even greater national recognition for one’s scholarliness?  Might a conference on a topic of, oh, say criminal law, have some ultimate applicability to something like, oh, say criminal law?  Or is this a chance for the gang to party?  Put on those blazers with the leather patches over the elbows and impress your friends in the Academy?  Share a glass of sherry while smoking a pipe?  Actually, I don’t think smoking is allowed any longer, so strike the pipe thing.

In my effort to avoid needless offense as I offer my low-brow, unsteeped practitioner view of the world, might I suggest that putting a group of lawprofs into a room who sum total of actually experience in the real world is the practical equivalent of kindergarten serves little utility?  If you think you’ve got a brilliant theory, test is against my reality.  If it’s got any rigor, it can withstand a little scrutiny.  But if it doesn’t fly to the unsteeped crowd, the ones who stand besides the folks who you would have live with the theories you develop under your sanitary conditions, then what the heck are you wasting your time for?

Again, I use Michael O’Hear as my example only because he was foolish enough to ask a question that I’ve no doubt many in academia have considered.  There’s nothing he’s done, that I’m aware of, that suggests he’s a bad sort of fellow, or hasn’t contributed some good ideas on the issue of criminal law.  But he reveals the scholarly bias that compels confrontation.  Since so many of us, practitioners and media, turn to lawprofs for their thoughts on very important substantive matters, and the lawprofs are ever so eager to give their opinion, it’s of critical importance that we appreciate the value of these comments.  These opinions frame issues and thought.  Scary.

The problem with filling a room with very intelligent, overly steeped lawprofs, whose only gap is that they’re possessed of such limited actual experience that their most enlightened thoughts are wholly disconnected from reality, is that it serves no functional purpose whatsoever.  This may not disturb scholars, but it makes the rest of us wince in pain.  We don’t see much point in engaging in discussion about subjects that lead nowhere and have no actual purpose or application.  It matters not how many pats on the back the conference coordinator receives from his peers. 

As for the students, they really don’t have much to offer for our purposes.  Lacking any experience at all, they’re finest thoughts are even less connected to reality than yours.  But on the other hand, since it’s their tuition that pays for your sherry, you ought to let them sit and watch so that at least they will know why they’re in debt for the decade following graduation.