Friday, May 25, 2012

Mild Epiphanies While Re-Reading The Reflective Practitioner

Posted by Jeff Lipshaw

ImagesI'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 Images-1 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  IMG_2044medical procedures in our house in the last several weeks, undertaken by sophisticated practitioners but informed by cutting edge research (dental Photo on 11-16-11 at 6.29 PMimplants 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.

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From the point of view of the scientist versed in physiology, molecular biology and biochemistry, the difference between barbers and surgeons is merely one of attire and income :)

Posted by: Simon | May 25, 2012 2:08:36 PM

This essay would lead an uninformed observer to believe that the "modal law professor" is writing law-and articles, driven by institutional incentives. But I think that this is basically not at all accurate descriptive. The modal law professor either writes no articles, or writes articles that are more-or-less longer version of intensely "practical" doctrinal pieces. How would you square that reality with the incentives you think dominate the landscape?

Posted by: dave hoffman | Jun 1, 2012 7:41:38 PM

Dave, that's an interesting empirical question. My "law and" comment was probably rhetorical flourish mimicking what critics of legal academia think is going on. As to profs at modal schools who don't write at all, that's a different issue I'm going to duck for the time being, except to say that not everybody has to contribute to the life of the school in the same way, particularly if the rules of the game have managed to change over time. In this climate, for example, I don't think many people are going to criticize gifted and busy teachers who don't write much.

I don't think you are disputing my assertion that there are institutional incentives for untenured or lateral-move-seeking faculty to be "productive" as the law school industry defines productivity. I don't think there's much dispute that productivity means quantity and quality of published scholarship. Quantity is pretty easy to measure; quality is another question, but the quickest proxies are journal, citations, SSRN downloads, etc. All of that has an institutional impetus largely insulated from the task of educating and training non-academic lawyers.

The only thing left is the question of where on the practical-doctrinal-theoretical continuum most "modal" scholarship lies. My answer is "I don't know definitively." My casual observation is that not much of it is longer versions of "intensely practical" doctrinal pieces, but then again, I don't read a lot of stuff in specialized areas like tax or employment or election law.

Posted by: Jeff Lipshaw | Jun 2, 2012 5:29:57 AM

I'm not sure why you think tax or employment or election (or corporate or real estate or civil procedure or environmental) law is "specialized". I don't actually even know what that means. And I certainly wasn't judging people who don't write - I think each institution should set its own standards for being successful. But I'd wager that the absolute majority of law professors in this country have not published anything longer than 5 pages in the last three years.

Indeed, I think that any fair minded reader of the output of the legal academy as a whole would find that there is, in fact, very little "law and" work as a percentage of the whole that is written; there is very little grand theorizing; while there is lots and lots of putting cases into buckets and predicting future case outcomes. That's not true at rich schools (which, consequently, are higher ranked). And it isn't true in journals (say, those corresponding to the top 75 in the W&L ranking). But no one seriously thinks that rich schools or prestige journals are going to be immediately washed away by the tsunami. The irony is that the economic disruption will be felt most hard by schools who are closest to the practical factories that critics of legal education would want to dominate the landscape.

Posted by: dave hoffman | Jun 2, 2012 8:07:42 AM

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