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.

4 thoughts on “Some Thoughts on Theory Versus Practice in Law Schools”

  1. Law school generally prepares its students for two kinds of career: working attorneys or legal faculty; the two overlap. One is immersed as an instrument in the operations of the legal system; the latter is frequently a more distant observer, whose remove some theoretical research can exaggerate. While the debate between practice and theory may encompass both, that between teaching and research usually concerns just the latter.

    I came to law school via a doctoral program in anthropology to do a combined JD/PhD. When I went to work as a litigation associate after graduation, I used to joke it was because I still hadn’t learned much about law. What I meant was that my three years in a J.D. program had given me little preparation for understanding what lawyers “do with their hands,” as a partner once put it to me, an empirical emphasis that no doubt reflected my anthropology background. As I would learn, it was precisely the day-to-day aspects of lawyering and litigating that richly complicated the doctrinal and theoretical lessons of law school. But it also brought home a point relevant to Professor Mazzone’s suggestion: the prevailing lack in American society of legal education outside law schools.

    Though the situation is changing, relatively few legal studies programs exist at the graduate or undergraduate or even high school levels. That seems odd in a country expressly founded on the rule of law, one in which law plays such a ubiquitous role. The practical aspects of lawyering quickly reveal its social and political sides, which legal training, in its professional aspect, perhaps cannot or should not address. Yet the need remains.

    Therefore I could agree with Professor Mazzone that universities should have academic departments for legal studies within the humanities or social sciences, but on the understanding that its faculty are not to be legal practitioners (whether attorney, professor, or instructor), but rather traditional doctorate-holders. That won’t eliminate old debates between teaching and research or practice and theory. But it may loosen the legal academy’s firm control of the discourses of law and legal issues.

  2. Mr. Mazzone's point is well-taken but his proposal is overkill. Law school courses should cover both theory and practice, because theory helps the student think like a lawyer (even though Ken proposes that there is no such animal) but practice helps the student in the nuts and bolts application of that theory. Legal aid clinics, internships and the like meet the practical side of a law school education; also courses taught not by legal scholars able to read Old English cases (in my experience, these scholars sometimes forget to bathe) but rather by adjunct professors (mostly well scrubbed) who both practice law on a daily basis and teach it.

    • Chad: I'm willing to believe that being a lawyer requires a particular flavor of rationcination. My objection to "think like a lawyer" is simply that it has become a cliche.

      And as for courses taught by adjunct faculty, there's always the risk that they'll simply pass on war stories and the conventional wisdom. What matters isn't the hat an instructor wears but how they approach teaching and scholarship.


  3. As a product of graduate school and law school, I’ll just say that law school is overpriced and a very poor education, whereas graduate school, as tough as it was, provided a priceless experience. Law professors who complain about having to deal with students or for gods sake, teach, while these same students are erring enormous checks and mortgaging their futures to give these professors pay is ironic.

    Med schools, business schools, and even some graduate programs have found a way to marry theory and practical without bulkanization: the tutorial method, pioneered by Harvard (medical, dental, and I think business, schools). Such an approach in law school would produce fine attorneys and identify those who want to make real scholarly contributions to an increasingly treadbare scholarship. Plus, it would be a lot of fun for both student and faculty, even if it is a lot more work fro the students, not only calling on their self motivation, but learning advocacy and real teamwork.

    I will give my law school some credit. The best class I took was a requirement for a specialty certificate. Divided into teams and put in a virtual law firm, we were to address our client’s many issues in law we hadn’t necessarily learned. It was incredibly challenging, and the only class where I remember easily the law, the application of it, and my colleagues.


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