Monday, July 2, 2012
[by Bill Henderson, originally published in The National Jurist, March 2012 (PDF)]
For over a century, law schools have suffered from an inferiority complex. We have masked it well, but its consequences are finally coming home to roost. Like most psychological conditions, our lives will be much better and healthier when we deal with its root cause. Further, when law students understand this history, they will better understand the changing nature of the legal economy. They can even help law schools with the cure.
In 1918, the renowned economist Thorstein Veblen famously quipped, “the law school belongs in the modern university no more than a school of fencing or dancing.”
Veblen, like many of his academic colleagues, believed that universities should be citadels for science-based learning and the production of knowledge. Law, in contrast, was a trade. Indeed, in the early 1900s, a substantial portion of the practicing bar had obtained their skill and knowledge through office apprenticeships. When law schools did begin to appear, they were just as likely to be proprietary law schools operating out of a local YMCA than to be part of an established university.
Despite the skepticism of the academic class, there were a host of practical reasons for universities to create (or, in some cases, acquire) a law school. First, the law was the primary occupation for many elected officials, which held out the prospect of reflected glory. (Veblen recognized this motivation, which compounded his worry.) Second, a handful of law schools at prestigious universities had begun adopting the so-called case method, which purported to find objective legal rules and principles akin to a scientist working in a laboratory. The perceived rigor of the case method provided at least a veneer of science. Third, with their large lecture halls filled with tuition-paying law students, law schools made money.
So, notwithstanding the doubts or hostility of academics like Veblen, the university-based model of legal education became the norm. To further legitimate law as an academic discipline rather than a trade, university administrators often sought out a dean from Harvard or another elite school to signal their commitment to the “modern” case method. Eventually entire faculties were populated by elite law school graduates; in turn, the practitioner-as-teacher became a dinosaur and gradually withered away, eventually reemerging as the adjunct professor.
Once fully inside the university, law schools adopted university norms, including promotion and tenure based on scholarly production. Today, the tenure files of law professors are evaluated using the same basic standards of peer-review that apply to all university professors. And a hierarchy has emerged, based largely on the natural sciences, which runs roughly as follows: theoretical scientist (think Einstein); lab scientist (testing Einstein’s theories); applied scientist (the engineer who uses lab-based insights to solve real world problems). Most law schools tend to have an analogous pecking order that runs: tenured/tenure-track faculty, clinicians, adjunct/practicing lawyer.
Yet, echoing the concerns of Veblen, on one crucial level the parallels between science and law inevitably breakdown. The work of university researchers continues to exert tremendous influence on the skills and knowledge of engineers and other applied scientists. For example, when Einstein discovers the theory of relativity or Francis Crick and James Watson discover the structure of the DNA molecule, entire fields of science can be revolutionized – more to the point, the work of applied scientists is simplified and made more potent. Quantum leaps, often born in a university environment, are possible. Indeed, some might call it the goal.
The same paradigm shifts occasionally happen in the social sciences. For example, in the last forty years, the research of psychologists Dan Kahneman and Amos Tversky have forced a re-conceptualized of the most fundamental principles of economics, giving rise to an applied field of behavioral economics that has immense practical value. (Note: some academic economists are still in denial over this development.)
In contrast, a large proportion of judges and lawyers readily admit that the writing of law professors—the enormous output of student-edited law journals -- has little or no relevance to their daily work. Instead, a more practice-oriented literature has emerged in so-called “bar journals.” These articles are written by and for practicing lawyers.
During the 1970s and 80s, the eminent researcher and educator Donald Schӧn began to notice how professional schools, including law schools, had maladapted themselves to the conventions and expectations of modern universities. In the muck and chaos of real world problems, practitioners such as lawyers, architects, urban planners, or psychotherapists seldom have the benefit of new scientific knowledge that can solve the complex needs of their clients. Although the work of lawyers can often be highly analytical, it is also very human and influenced by emotion, culture, politics, power dynamics and a host of other seemingly random idiosyncratic factors. (For a more complete discussion, see Schӧn, The Reflective Practitioner (1983); Educating the Reflective Practitioner (1992)).
Schӧn gradually came to the conclusion that the science-based hierarchy of the university could not be usefully applied to a substantial number of professional schools. This is because professionals who achieve practice mastery (the $1000/hour technician; the trusted legal advisor; the highly successful plaintiffs’ lawyer; the brilliant government regulator, etc.) are essentially crafting novel, ad hoc solutions to extremely complex problems. To do this effectively, they must draw upon their own immense reservoir of learning, practical experience and intuition. University learning from law, economics, psychology, history, anthropology, and the hard sciences are mere inputs to the lawyers’ solutions. Almost like alchemy, these inputs are combined with decades of exposure to novel fact patterns. The outward manifestation is what some might call expert intuition.
All of this analysis leads to one conclusion: Legal practice mastery is a mixture of a science and art. Further, the artistry component is the most crucial element for solving real world problems, and it can only be obtained through an iterative process of experience and reflection. Unfortunately, we law professors are prone to reject, or at least discount, this formulation because it undermines the perceived gravitas of our academic learning and accomplishments.
Personally, I would rather be on the right side of history than the right side of a self-interested argument. I am ready to concede that many of my former students, who have been practicing for several years now, are much better at solving practical client problems (purely legal or a mix of legal and human) than I am. Yet, as a law professor, I still think that I can add value. But only to the extent that I connected to the world of practicing lawyers and thus can fashion frameworks and broker relationships that can help my students more quickly make sense of the muck and chaos of their future professional lives.
Outstanding lawyers are a public good. They help solve society’s most serious problems. I want to do my part to make more of them. It is time that the legal professoriate shakes off the inferiority complex that the practice of law is mere trade. At the same time, we also need to build bridges with the practicing bar – particularly our own alumni. This re-allocation of time and priorities may come at the expense of some the arcane scholarship that we now produce in order to maintain perceived parity with other parts of the university. At this juncture, we have the gravitas and experience to make the transition. Our students will be the primary beneficiaries.