In this 2020 blog post, entitled somewhat gradiosely The Deafening Silence: Why People Generally Don’t Take Me On in the Marketplace of Ideas, I explain why, well, people generally don’t take me on in the marketplace of ideas.
But this article by Katy Barnett of Melbourne Law School got me to thinking further about the role that academics play, or rather don’t play. Katy’s article is about how in Australia and perhaps elsewhere, teaching doctrinal law—basically, the core law-school subjects—is out of fashion. Doctrinal scholarship involves determining what the law is; that contrasts with theory. As Barnett says,
Currently, there is a tendency to reward theoretical work, where grand claims can be made as to it its significance and relevance. “I am exploring fundamental concepts of justice” sounds more interesting than “I am trying to impose some order on the law of contract damages”. Being confined by practice means that your work might look less flashy, but that does not take away from its importance.
I got a sense of that while working on my forthcoming article about how the word material is ambiguous. I had to explore the nature of vagueness and how it relates to figuring out what material means. Not being remotely a scholar of such stuff myself, I cheerfully importuned some actual scholars. They signaled that they had no interest in my practical questions. I bought a couple of their books, flipped through them, then set them aside—they were wall-to-wall theory.
I suspect that a preference for theory helps explain why I rarely encounter full-time law-school faculty who write anything relevant to what I do. (The one notable exception I’ve encountered is John F. Coyle of the University of North Carolina School of Law; go here for links to my three blog posts that mention him and a link to the podcast I did with him.) I can’t say I blame them. I spent years in semi-isolation, grinding out analyses of the building blocks of contract language. It ultimately paid off for me, but I suspect it wouldn’t have come close to allowing anyone to climb the greasy pole of academia.
Of course, I explain in my 2020 blog post that practicing lawyers don’t have much appetite for my kind of work either. I suspect that Katy could write a follow-up article to that effect. I hope she does!
4 thoughts on “Do Law Professors Disdain the Practical?”
I agree with your comments to the most part, but as an Adjunct Professor of Law at Notre Dame Sydney I am probably an exception. I research and write Guides and Workshops for law students on the Sydney law campus around core skills they can use at university and later in legal practice. The guides have more practical advice than theoretical discussions (like most books on drafting for example, except yours).
My work includes:
1. Improving your marks at university, for first year law students. Covers class participation, essay and examinations
2. Extended Essay Guide, for Honours and Masters students full of practical advice not theory when writing an essay
3. WORKSHOP and Notes: Proofing your work – again practical advice on what to do to be a better proofreader
4. WORKSHOP and Notes: Introduction to Legal Drafting, for all law students. Nearing completion after two years of work. Designed as a half day course that can go the full day with worked examples. I had to be very focused on the big drafting. Your book can take them on to the final destination. One Annexure is over 50 pages of suggestions on better word choices when drafting. Phrase in column 1 with suggested wording in column 2. The suggested changes have various themes including: consistency, simplifications (including doublets and triplets), legalese, Latin legalese, archaic language, ambiguity, confusion, limited statutory law (mostly New South Wales law), normalisation, neutral wording, hyperbole, clarification, negative compounds, rhetorical emphasis, clichés, idioms and antagonyms.
Working in a corporation doing law/compliance meant I had to be practical, but I also lectured at Uni over my working life, blending both skill sets. I am part practical and part theoretical, but probably more practical with my emphasis on skill sets development.
Hi Michael. In the US, at least, adjuncts are very different creatures. They have none of the trappings of full-time faculty and as such are prone to being disdained by them.
Notre Dame Sydney is a little bit different here, even to the other Law Faculties. Because all staff must have had a minimum of 10 years legal practice experience before joining the Faculty.
There is also a part time law course attached to Sydney University (LPAB) and they also ask me to give the workshops. The students are older, many are law clerks, etc. in legal practices wanting to become lawyers. For them practical skill sets are important, say verse a full-time law student straight out of school.
Both Notre Dame Sydney and LPAB are open to developing skills sets for their students, not everyone is.
Theory and practicality, properly defined, are distinct but complementary. MSCD, the first and so far most significant part of ‘the Adams project’, is almost purely practical: given a drafting goal, here’s how best to do it. It’s agnostic on what the drafting goals should be, ie on what deals ought to be made and performed.
Attempts to abase either theory or practice are foolish, like fighting over which are more important, fathers or mothers. But in the world as it is, foolishness is to wisdom as nitrogen is to oxygen in the air we breathe. –Wright