The Growing Disjunction Between Legal Education and The Legal Profession
The Growing Disjunction Between Legal Education and the Legal Profession, by Harry T. Edwards (91 Michigan Law Review 34 (1992)).
The Growing Disjunction Between Legal Education and the Legal Profession: A Postscript, by Harry T. Edwards (91 Michigan Law Review 2191 (1993)).
In 1992, a federal judge wrote an article which castigated law professors for preferring theory over practical scholarship.
Seventeen years later, nothing has changed.
Harry T. Edwards (pictured), a Carter appointee to the U.S. Court of Appeals for the District of Columbia, caused a minor brouhaha when his article, “The Growing Disjunction Between Legal Education and the Legal Profession,” was published in the Michigan Law Review. The following year, the journal published a symposium on Judge Edwards’ critique, with the judge contributing a follow-up “Postscript.”
Superficially, Judge Edwards’ argument was well trod: Many law professors write highly theoretical scholarship which is of no use to anybody.
But Judge Edwards made a more profound point, primarily in the Postscript: The disconnect between scholars and the rest of the legal world was growing because many professors disdained and marginalized anything (or anyone) associated with the actual practice of law.
“A good number of law professors are altogether uninterested in producing scholarship useful to practicing lawyers, judges, administrators, and legislators,” Judge Edwards wrote.
Practical scholarship, in his mind, is both doctrinal (mindful of pre-existing laws which limit people’s options) and prescriptive (designed to aid lawyers, guide judges and advise legislators). The best examples of practical scholarship are the great treatises -- William Prosser on Torts, Laurence Tribe on American Constitutional Law – which organize and interpret the law and are often the first place that judges and lawyers look when seeking to answer a question.
The impractical scholarship in vogue among the professoriate features neither of these attributes. Many professors write disinquisitions on what the law should be, but they ignore the fact that their proposals are illegal under the current regime. Judge Edwards calls the law and economics scholars to task on this point; a new rule may be more efficient, but there’s not much a judge can do in the face of a validly promulgated but inefficient regulation.
The solution is simple. “The law schools must hire more ‘practical’ scholars,” Judge Edwards suggested. But the culture of the law school won’t have it.
“The problem is not simply the number of ‘practical’ scholars, but their waning prestige within the academy,” he wrote. Professors who focus on workable solutions to real-world problems are considered second-rate. No one at a top school makes their name anymore by writing a treatise.
“The academic lawyer who makes it his business to be learned in the law and expert in parsing cases and statutes is made . . . to seem a paltry fellow,” Judge Richard Posner is quoted by Judge Edwards as writing.
“Those professors who chose to write about topics which might be of concern to a more general population risked censure from their colleagues or accusations that the topics were not ‘scholarly,’” said one of Judge Edwards’ former clerks. (Much of Judge Edwards’ articles are culled from a survey of his clerks and from communications he received from colleagues.)
The impractical scholars replicate themselves – and protect their turf – by refusing to hire practical people. “A faculty candidate who is not heavily into theory has little chance of being hired,” one professor wrote to Judge Edwards. “'Practical scholars’ are dismissed as being, to use their favored expression, ‘uninteresting.’”
In turn, the resistance to useful scholarship dissuades lawyers with a practical bent from seeking academic employment. “And those students who are not interested in interdisciplinary work, but are merely extraordinarily talented lawyers, shy away from a career in the academy because they know that the kind of work that they would be interested in doing is not valued,” one dean wrote.
Seventeen years is less than one generation by the long-tenured standards of university departments, so perhaps it’s no surprise that the situation has not improved.
If anything, it seems to be worse. Interdisciplinary movements – in which professors import into law the standards or findings of other disciplines – are still going strong; the current rage is the impact of evolutionary psychology on the law.
The most practical law school courses – research and writing, and the clinics (in which students work on actual cases) – are not taught by tenure-track personnel, but are shunted off to junior instructors working under one- or two-year contracts. Worse, a stint as a writing or clinical instructor is seen as a black mark which can hinder an academic's chances of advancement. The readership of most law review articles can be counted on one hand, but they remain the principal criterion for academic hiring and promotion.
Judge Edwards still serves on the appellate bench. His rulings are looked to for guidance and clarity. He co-wrote a book about federal standards of review, a topic which is both conceptually interesting and of immense practical importance. Lawyers and litigants across the country listen to what he has to say.
But not law professors. Many are content to sit in their offices, collecting a paycheck for the rest of their lives while engaging in a discourse only a dozen others follow. And, no, they won’t hire people who disagree with them.
Judge Edwards’ disjunction grows wider each year.