Friday, May 25, 2012
Posted by Jeff Lipshaw
I've started working on an essay for a symposium on the future of legal education (there are a lot of those either held recently or about to be held). I decided to re-read a work I have cited in the past, Donald A. Schön's The Reflective Practitioner.
It's hard to be very original in referring to Schön (left); I just did a search of [Schön /p reflective] in the JLR database of Westlaw and came up with 310 citations, the first 100 or so of which I actually scrolled through. He passed away in 1997, but this is a nice summary of his influential body of work.*
We're well beyond "blank sheet of paper" solutions to the apparent mismatch between what law schools produce and what the market needs. I agree with Bill that the market is going to drive the restructuring of legal education, and the process is going to be more ad hoc than systematic and more organic than organized.
Having said that, when change comes, it seems to come in a rush, doesn't it? And a lot of assumptions about the inability to have "blank sheet" solutions seem to crumble. Witness, in a serious vein, the collapse of the Soviet empire and the reunification of Germany, or in a trivial vein, the collapse of the present college football BCS system.
Here's the mild epiphany, however. It's only mild because I have addressed the issue of the relationship between legal scholarship and teaching in my deaning dalliances. The short version of my previous shtick is that what Nancy Rapoport calls modal schools don't have the luxury of having professors who can't teach, but unless there is a law school crash and restructuring, students and alumni are going to need to understand what drives a legal academic's career path. We may not like it very much, but for the time being it's our equivalent of doing politics in post-WWII Europe or trying to win a football national championship. You have to play the game that is presented to you.
What Schön does so well is to describe the current game, although he only touches on law and he wrote it in 1983. He describes (persuasively) the rise of what he calls Technical Rationality within disciplines in the university setting. It would "be the business of university-based scientists and scholars to create the fundamental theory which professionals and technicians would apply to practice." To turn that theory into practice, practitioners become skilled in problem-setting, which is not a technical problem. (I think it's because hypothesis generation, the fruit of abductive reasoning, is not reductive.) So, according to Schön, when practitioners "describe their methods of inquiry, they speak of experience, trial and error, intuition, and muddling through."
All professions, in Schön's view, demonstrate this tension between rigor (of research in technical disciplines) and relevance (of the application of knowledge to practice).
I'm leery of bright line distinctions, but I do think there is a continuum. At one end, we've had some medical procedures in our house in the last several weeks, undertaken by sophisticated practitioners but informed by cutting edge research (dental implants and laparoscopic surgery). At the other end, take men's barbering. Maybe there is technical research going on, but for me, getting my hair cut has actually regressed to something more basic. Whereas the hair you see at left (circa 1977) needed the most sophisticated of salon practitioners, the current version at right can be addressed by what is universally signaled in the words "Number 2 buzz." (That is me engaged in "academic pear review.")
The role of legal academy scholarship in practice falls somewhere in between the role of research in laporscopic surgical practice and the role of research in barbering practice. I will leave others to speculate on precisely where it falls. But in terms of how much pure or applied university-based research we actually need, I have a feeling our profession is closer to barbers than surgeons. (And I say that as somebody who just had an article cited in a case decided by the Supreme Court of Delaware. I believe most of what I've published is indeed a reflection on my practice experience, although I'd be the first to admit it would be deep background to practice, and not directly relevant to specific actions.)
Nevertheless, demonizing law professors in modal schools (the vast majority of which take seriously their obligation to train lawyers for non-academic careers) is like demonizing bankers or CEOs. It scratches an atavistic urge to attribute misfortunate to the gods (as I've suggested elsewhere about the financial crisis.) I don't particularly care for the U.S. tort system and its effect on product and medical costs, but attributing the crisis of legal education to current law professors because they get paid well or write theoretical "law and ..." articles is like attributing defensive medicine to the plaintiffs' medical malpractice bar because of the standard one-third contingent fee. People naturally do what they get measured on and paid well for. And it's perfectly legal to boot.
In short, blaming law faculty for responding precisely to the incentives the system creates is understandable but unreflective in its own way. Rather, the current problem is institutional and structural, as Brian Tamanaha, the late Larry Ribstein, Bill Henderson, and others have observed. Because of regulatory and accreditation restraints, almost all schools are similarly modal, so almost every law school, even well down in the lower rankings, consists of faculty with the same career drivers and motivations.
If one's school can't support and doesn't need a Department of Jurisprudence alongside the history, sociology, economics, and philosophy departments, maybe it shouldn't have one. Going that route would take some real cojones, and no doubt create more human candidates for status as gods or demons.
* HT to Bill Berman on the Suffolk faculty for first directing me to Schön's work a couple years ago.