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The pretext of scholarship and how it discriminates against practitioners

Legal academics are sniffy about practitioners who teach. But, says Reuben Guttman, this outdated view does a disservice to the legal profession.

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Scholarship means academic study or achievement. It is word without rigid limitations except perhaps when it comes to law schools which more and more are interpreting the word “scholarship” to mean theoretical endeavor not directly connected to the practice of law. This may seem odd but it is quite true. Today the word "scholarship" seems, in part, used as a pretext to discriminate against those whose academic endeavours favour the actual practice of law. Surprisingly, those whose work entails writing case books, legal treatises, or teaching classes on trial advocacy, are not what law school insiders call scholars. This means they are not favoured for tenure track positions or prestigious chairs. Sometimes they are relegated to the title of "professor of practice," which means that their endeavors are so connected to actual legal work that they cannot just be known as a professor. 

Perplexing

To the wrongly accused defendant sitting in jail awaiting trial or the immigrant detainee in a holding cell in need of counsel and waiting to be deported, this may be perplexing that law schools don’t favour or reward educators who teach skills that benefit those in need. The matter has similarly not gone unnoticed by Supreme Court Justice John Roberts and Judge Richard Posner of the Seventh Circuit Court of Appeals. Both have been critical of "the Academy." In a piece written for Slate last year, Judge Posner said flat out that law schools should hire more professors with practical experience. Indeed, law schools are now populated with "scholars" who have had little or no experience with clients, let alone the inside of a courtroom. Of course, this does not mean that law schools should be turned over to practitioners with little or no teaching experience or to those who have barely endeavored to share their views on the rule of law, including practice, through written work. That would be wrong as well.     

Students lack proficiency in core skills

With fewer law school administrators even sensitive to the rigours of practice, law schools are graduating students without proficiency in core skills including the ability to write clear and concise prose. And - in an age where many cases turn on the application of mathematical or scientific concepts - schools are turning out students with no grounding in either.

Practitioners do the work

The irony, of course, is that most of the great cases --cases studied by scholars -- were the result of rigorous work by practitioners with writing and oral advocacy skills and the knowledge and creativity to draw on mathematical and scientific principles. One need only look at footnote 11 in Brown v. Board of Education, 347 US 483 (1954) which cites the work of psychologist Kenneth Clark with regard to the “effect of prejudice and discrimination on personality development.” Citing that footnote, Chief Justice Warren wrote for the majority: 'Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.  Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority.'

Scientific development

If there is a point to be made, it is that law and legal theory do not exist in a vacuum and – as alluded to by Chief Justice Warren – scientific development can alter the rule of law. Consider, for example, the Supreme Court’s decision in Daubert v. Merril Dow Pharmaceuticals, 509 US 5479 (1993),  where  the Supreme Court introduced the notion of reliance on generally accepted scientific principles in determining whether an expert can testify at trial.  Because the decision to preclude expert testimony can determine the outcome of a case, it is axiomatic that understanding and communicating scientific concepts is an important skill. Of course, as philosopher, Thomas Samuel Kuhn, noted in his 1962 book, The Structure of Scientific Revolutions, scientific paradigms constantly change.  Hence, at the very least, and naturally in consideration of the Daubert opinion, an ability to appreciate science and work with scientists can be fundamental to the practice of law. This is not a novel thought for practitioners who rely on non-testifying and testifying experts. These are the lawyers who pride themselves on understanding scientific concepts as intricate as say: 'How a poly nuclear hydrocarbon might migrate through an aquifer.'  Remember the book, A Civil Action?  

Practitioners

The irony is that the legal theorists - who are notoriously particular about populating their written discourse with voluminous footnotes and sometimes even measure the value of their work by the number of footnotes - would have no footnotes absent the efforts of practitioners who investigate the facts and formulate the legal theories that make the case law. It is these people – and perhaps those that the scholars would call “professors of practice” – who are also at the cutting edge of the law.  

Practitioners are key 

There is a bottom line here. At the end of three years, law students become lawyers and not all of them want to end up in academia as theorists; nor are there enough jobs in academia to compensate the professional contemplators. And while there is much discussion about the dearth of jobs for lawyers, the reality is that there is currently a need for lawyers. That need may not come from the hallowed halls of the corporate world but it certainly does come from immigrants facing deportation, those who are wrongfully imprisoned, and entrepreneurs – with little funding but great possibility – who desire to launch their enterprise. Naturally, representation in these areas requires practical legal skills not to mention core competencies – including math, science, writing, and even multi-lingual ability – that the law school admissions officers neglect when – guided by US news criteria –  they hyper focus on applicant  grades without considering whether those grades represent proficiency in basket weaving or chemistry.

Change is necessary

The point is that something needs to change. With law school tuition exceeding $55,000 annually at some institutions – and the legal market in need of skilled advocates – the time has come for law school administrators to make sure that graduating students are equipped with practical skills, and that the educators who can teach those skills are treated as equal “scholars.” To be clear, this does not mean turning law school administration over to practitioners with no real academic qualifications; it just means that law school administrators need to recognise that at the end of the day,  the “Academy” needs to produce individuals with the practical skills to speak for those without a voice. And yes, do not forget the theorists who encourage the kind of bold thought that causes practitioners to challenge accepted but unjust practices.    

Posted by:

Reuben
Guttman

30 June 2017

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