Some Thoughts on Theory Versus Practice in Law Schools

In recent days there’s been plenty of chatter about this post on Balkinization by Jason Mazzone, a professor at Brooklyn Law School. Here’s the meat of what he proposes:

As far as I can tell, no law school in the United States co-exists in a university along with an academic law department. If a university has a law school, every professor of law is in the law school.

We should reconsider this model. A different approach is for universities to have both a professional law school and an academic law department.

Under this approach, the professional school would be staffed by instructors whose job is to teach legal skills to lawyers-in-training. Instructors would not be expected to write books or articles. Instead, they would bring expertise in teaching practical skills.

Mazzone’s proposal has come in for some snark at the hands of Legal Blog Watch and Above the Law. For the heck of it, here’s my take:

Far from being unique to law schools, the tension between teaching and research is endemic in higher education. Given that it’s something that universities wrestle with too, I find simplistic Mazzone’s notion of grafting onto an amenable university the theoretical side of law school.

And creating a wall between theory and practice would likely encourage the less-desirable traits in each sphere:

As regards theory, topics that are the subject of faculty research have some grounding, however remote, in how law operates in society. Absolving research academics from routinely having to deal with ugly practical realities would likely render the fruit of their research even more sterile than it currently is.

As regards practice, leaving the training side of law school to “instructors” would institutionalize the two-cultures divide that you already see in law schools. (I’m a member of Penn Law’s adjunct faculty and I teach a “practical” topic, so I must be doubly ignoble.) Leaving training to second-class-citizen instructors would perhaps make it more likely that a given training program merely recycles the stale conventional wisdom.

So research and training would both benefit from cross-pollination between theory’s broader perspective and practice’s focus on expediency.

A related December 2009 blog post: Practitioners and Scholarship: Oil and Water?

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.