The Debate, Again, On Teaching Lawyering Skills In Law School

The National Law Journal site published an article yesterday on one of my favorite topics:  practical legal education.  The article focuses on the article Preaching What They Don't Practice: Why Law Faculties' Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy by Brent Evan Newton of the Georgetown University Law Center.  Newton is concerned with the trend that law schools hire faculty who have little lawyering and practice skills.  Their real job is to write interdisciplinary law review articles while teaching becomes a secondary purpose.  The practice skills component is dumped on clinicians, legal writing instructors, and adjunct faculty.

As Newton says:

Especially at law schools in the upper echelons of the U.S. News & World Report rankings, the core of the faculties seem indifferent or even hostile to the concept of law school as a professional school with the primary mission of producing competent practitioners. Attempts by law schools to compensate for the decreasing number of tenure-track professors with practical backgrounds or inclinations by allocating practical teaching to a discrete, small pool of clinicians and LRW instructors and also by outsourcing such teaching to adjunct professors have not achieved and will not achieve a healthy balance within modern law faculties. Rather, such practical components of the faculty possess a separate-and-unequal status in the vast majority of American law schools. The gulf between the main faculty and these second- and third-class members of the legal academy in terms of practical experience and inclination is widening at the very time when it needs to be shrinking.

My own feeling is not to dismiss theoretical scholarship.  It's not as if competent faculty member can't write theoretical articles about torts and yet teach concepts that contain ideas about procedure and evidence of a claim.  Theoretical scholarship, by itself, however, does not inform the potential lawyer of what to do when writing the complaint and standing before a judge.  Is this particular knowledge relegated to the form books and the legal encyclopedias?  I also have question as to what extent theoretical scholarship actually informs the law, as in the law as it is created and enforced.

I attended a conference recently on how lawyers can work as effective lobbyists in Illinois.  I had the opportunity to discuss the legislative process with legislators and the outside players.  My impression was that what is written in the law reviews these days has little to do with policy considerations behind proposed laws.  Dare I say it, my conversations with legislators and lobbyists who attended the conference suggest that a significant number of laws are proposed and written by people who have a direct interest in their passage with the sponsor acting as the vehicle to enactment.  It's not necessarily a noble process, but nonetheless, a highly effective one.  I'm also sure that this practice is not limited to Illinois.

For example, the RIAA and the MPAA are arguing loudly these days that the Digital Millennium Copyright Act (DMCA) is not working for content producers.  It's too much effort for them to search the Internet for infringement and file actions according the law, they say. The DMCA doesn't meet their expectations for protecting their business practices. They are actively lobbying for legislation to gut the DMCA's safe harbor provisions to give them a more convenient way to prosecute infringement.  Put the onus on the ISPs and the sites, they say.  I'm guessing the lobbying efforts by the trade associations will have more of an impact on future IP legislation than an article on the philosophical issues of criminalizing infringement within the copyright law.

The NLJ article notes Kristen Holquist as opposing Newton's views:

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."

Her paper, Challenging Carengie, suggests that interdisciplinary approaches to legal teaching will offer a broader context to the concept of "thinking like a lawyer."  The experience gained by expanding doctrinal teaching could better inform a law student/potential practitioner when advising clients working a practice.  Law schools should not just teach doctrine, technique, and method, but expand by informing on the lawyer's role in society, which includes problem solving.  That last point struck me, as many of the lawyers I know see problem solving in the context of their client's interest rather than the interest of society as a whole.  Maybe there is room for teaching law as law, law as a skill, law as a business, and law as a way of framing societal interaction and produce productive lawyers.  The effects of the current recession on law graduate hiring suggest that law school instruction is not the right mix, whatever it should be. [MG]