Monday, February 7, 2011
New "skills" scholarship: "Preaching what they don't practice: why law faculties' preoccupation with impractical scholarship and devaluation on practical competencies obstruct reform in the legal academy"
This article is by Professor Brent E. Newton and is available at 62 S.C. L. Rev. 105 (2010). From the introduction:
We are at a critical juncture in the history of American legal education. Recent years have seen significant growth in the number of law schools, faculty members, and law students. Currently 200 accredited law schools exist in the United States with more than 10,000 full-time faculty and over 140,000 matriculating law students seeking J.D. degrees - the vast majority of whom will join the more than one million practicing attorneys in the United States. On the surface, these numbers suggest that the legal profession is thriving and that law schools are doing their jobs well. And the recent appointment of Elena Kagan, a former law professor and dean, first as Solicitor General of the United States and subsequently as an associate justice of the Supreme Court of the United States, might cause a casual observer to believe that the legal academy and the legal profession are working closely in step. But, as I discuss below, that is certainly not the case. The academy - both in terms of its preparation of law students to enter the profession and in the type of scholarship its professoriate is producing - has lost its practical moorings.
As discussed in Part I below, in response to years of complaints that American law schools have failed to prepare students to practice law, several prominent and respected authorities on legal education, including the Carnegie Foundation for the Advancement of Teaching, recently have proposed significant curricular and pedagogical changes in order to bring American legal education into the twenty-first century - indeed, some would say simply into the twentieth century. The proposed reforms primarily call for more real-world and skills training and more effective teaching practices.
In this Article, I will not attempt to add substantially to such well-reasoned and constructive criticisms, with which I fully concur. Rather, as set forth in Parts II and III below, my thesis is that it will not be possible to implement such proposed curricular and pedagogical reforms if law schools continue their trend of primarily hiring and promoting tenure-track faculty members whose chief mission is to produce theoretical, increasingly interdisciplinary scholarship for law reviews rather than prepare students to practice law. Such "impractical scholars," because they have little or no experience in the legal profession and further because they have been hired primarily to write law review articles rather than to teach, lack the skill set necessary to teach students how to become competent, ethical practitioners. Indeed, law school faculties - excluding clinicians, legal research and writing (LRW) faculty, and adjunct professors - increasingly resemble graduate school faculties at major research universities, whose primary mission is to produce academic scholarship and whose secondary educational mission is to produce more academic professors. Especially at law schools in the upper echelons of the U.S. News & World Report (USNWR) rankings, the core of the faculties seems indifferent or even hostile to the concept of a 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.
The recent economic recession, which did not spare the legal profession, has made the complaints about American law schools' failure to prepare law students to enter the legal profession even more compelling; law firms no longer can afford to hire entry-level attorneys who lack the basic skills required to practice law effectively. In the coming years, hoards of ill-prepared law school graduates with huge debts will be realizing little or no return on their massive law school investments. In Part IV below, I propose significant changes in both faculty composition and law reviews aimed at enabling law schools to achieve the worthy goals of reformists such as the Carnegie Foundation.