Law schools can’t make legal education more practical and relevant if they continue to hire professors with little real-world experience who are focused on esoteric scholarship.
That’s the conclusion Georgetown University Law Center adjunct professor Brent Evan Newton advances in “Preaching What They Don’t Practice: Why Law Faculties’ Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy.”
The article, awaiting publication by South Carolina Law Review, has generated discussion online among legal educators about the benefits and drawbacks of a faculty focused on theory rather than skills.
Newton said Monday that he has been concerned about the state of legal education since his student days at Columbia Law School during the early 1990s. His students echo those same concerns two decades later, he said.
“I was inspired to write the article as a result of my recent students’ realistic fears of being unable to land a job as a result of the economic downturn and their belief that law school had not prepared them to make a living as a practicing lawyer,” Newton said.
The article cites the findings of the American Bar Association’s 1992 MacCrate Report and a 2007 Carnegie Foundation for the Advancement of Teaching report. Both concluded that law schools were not doing a good enough job of preparing students for the real-world practice of law.
“The academy — both in terms of its preparation of law students to enter the profession and the type of scholarship being produced by the professoriate — has lost its practical moorings,” Newton wrote.
Part of the problem is that many law professors have too little experience or understanding of the practice of law to teach those skills to students. “Could such a professor who writes law review articles about the First Amendment effectively represent a client in a civil rights litigation? Could such a professor whose expertise is securities regulation effectively represent a client or the government in an SEC enforcement action?” he wrote.
Newton analyzed entry-level tenure track hiring from 2000 to 2009 at 40 institutions throughout the four tiers of law schools as determined by U.S. News & World Report. New professors had an average of three years of practical experience. The years of experience dropped off at higher-ranking schools: Fourth-tier schools hired faculty with an average of more than seven years of practical experience, compared to less than two years at top-tier schools.
The value that law schools place on publication of law review articles means that faculty members often focus more on scholarship than teaching, Newton wrote. Most law review articles are grounded in legal theory as opposed to practical legal issues.
Many law schools have attempted to make their curricula more relevant by adding adjunct professors and clinical faculty, but Newton concluded that those efforts are not nearly enough. For one thing, full-time clinicians accounted for just 1,400 of the 10,000 full-time legal educators, according to “Lawyering in the Academy,” by Robert R. Kuehn & Peter A. Joy, published in the summer 2008 edition of the Journal of Legal Education. Moreover, clinical faculty and adjunct faculty are undermined by their second-class status on faculties dominated by traditional tenure-track professors, Newton argued.
Newton wrote that changing the makeup of law faculties would be a difficult and slow process that will require the backing of numerous stakeholders, including the American Bar Association, judges, law graduates and students.
He suggested that law faculties be divided into two tracks — research professors and teaching professors, both of whom would be tenure-track. Research professors would account for one-third of a faculty and would concentrate on “theoretical, interdisciplinary research and scholarship” and teach fewer classes. The remaining two-thirds would teach doctrinal, clinical and legal reading and writing courses. Teaching professors would have extensive practice experience and would be expected to publish articles less frequently than research professors.
Newton proposed a significant change to the law review system, again involving establishment of two tiers. One would consist of student-edited journals publishing practical articles by teaching professors. The second would consist of faculty-edited journals publishing theoretical and interdisciplinary articles by research faculty.
A number of law professors have written blog posts about Newton’s article, some suggesting he understated the value of legal scholarship.
Writing on PrawfsBlawg, Kristen Holmquist, the academic support systems director at the University of California, Berkeley School of Law, wrote that she is frustrated by the viewpoint that “the ideas explored in interdisciplinary scholarship — ideas at the intersection of law and psychology and economics and sociology, for example — are somehow irrelevant (or not very relevant) to ‘practical’ lawyering.”
Newton thinks some of his critics have not read his entire article.
“I do not propose getting rid of theoretical professors or theoretical law review articles; I believe they have value,” he said. “I simply propose reducing their influence and increasing the percentage of “practical” professors and “practical” scholarship.”
Karen Sloan can be contacted at email@example.com.