Doctrine and Practice: A Shared Responsibility?

[smartandunique]

Doctrine and Practice: A Shared Responsibility?

Comments at a recent conference are making waves among some members of the legal education community.

The Legal Writing Prof Blog reports on a discussion at the Southeastern Association of Law Schools conference, where, according to the blog, New York Law School Dean Richard Matasar “stated that the idea that we can treat research and writing as a separate course is not optimal and that the entire law school must embrace a shared responsibility for education (including skills education).  He said that we need to challenge assumptions and challenge the separation of teaching research and writing from substantive learning.

I should note that the discussion has raised some heated debate about various important points in legal education, including the status of tenure, which I’m not addressing in this column. There is also an insightful follow-up post on the blog regarding the status of legal writing professors, featuring comments by Professor Ralph Brill of the Chicago-Kent College of Law in response to the original post by Professor Mark Wojcik of the John Marshall Law School. But, seeing as we’re a magazine for law students, what is most interesting to me is the suggestion at the end of the blog post that all this business about faculty status influences students’ perceptions of their writing/clinical faculty and classes. The Legal Writing Prof Blog reports that at the conference in question, “other professors in the audience pointed out that they did not fully realize how student perceptions of faculty status affected how students approach their legal writing classes.”

Are students truly so aware and engaged that they understand the differences between “doctrinal” and “clinical/writing” faculty where a school uses a faculty status model that differentiates between those two categories? If a school uses different titles to label “doctrinal” v. “clinical/writing” faculty, it’s feasible that students would catch on — but many schools don’t.

Today’s law student has been absolutely inundated with information about the importance of clinical education, on-the-job writing and analytical skills and practical experience. For our part, I couldn’t even count the number of times the National Jurist has featured, mentioned or praised a law student clinic or advised students to better their writing skills, enroll in a clinic or otherwise gain practical experience. Students know that employers are expecting new hires to “hit the ground running.”

So, say we polled law students and asked them to rank the importance of the following three goals in what they’d like to get out of their legal education:

1. Preparedness to sit for and pass the bar exam

2. Preparedness to enter law practice

3. Doctrinal teachings and engaging in the “casebook” method

This is just my guess, but I would bet that “doctrine” would come in a distant third to the other two choices. Perhaps the old adage of “law school doesn’t prepare you for law practice” rang true in the 1900s. In this century, law students expect to leave law school knowing what they need to know to pass the bar and practice law. It should follow, then, that many students might find their clinical and practical courses and profs (including those that focus on legal research and writing) to be more useful than the so-called “doctrinal” courses. Yet the comment by “professors in the audience” above suggests otherwise.

It is clear that doctrine still has a huge place in legal education. Teaching students to “think like a lawyer” is, and should be, a fundamental goal. Of course, “doctrinal” teaching and “practical” teaching shouldn’t have to be mutually exclusive. I was lucky enough to go to and now teach at a law school that focuses on practical teaching, and even in the “doctrinal” classes as a student, we would often learn about the “practical” side. The infusion of practice and theory can work, which is why Dean Matasar’s theory sounds, in the least, intriguing. But my question is for the students and recent alumni: regardless of whatever approach to faculty status is in place at your school, have you personally noticed differential treatment among various professors — and, more importantly, has your perception of the professors or the courses they teach been altered as a result?

[louiebstef]

This exact topic was addressed in a book by one of our very own members: Thane Messinger.
The ober dicta part of his book outlines many changes in the entire law school system that bear consideration.

Maybe he can enlighten us with a comment on the below...

[Thane Messinger]

This exact topic was addressed in a book by one of our very own members: Thane Messinger.
The ober dicta part of his book outlines many changes in the entire law school system that bear consideration.

Maybe he can enlighten us with a comment on the below...

Many thanks, and sorry for the delay in response.  It's been quite a week.

The concern of the professoriate, such as it is, arises out of a famous (infamous?) report issued in 1992, the MacCrate Report. 

Robert MacCrate, a very high-powered attorney, essentially took the entire law school empire to task.  Whereas once law professors were accomplished practitioners who also happened to be very, very smart, the new model was a "professional" one, which in the world of legal academe meant a person whose profession was the doctrinal approach (i.e., not law but legal theory).  If one looks at a law school catalogue from anytime prior to, say, the 1960s, one sees a faculty dominated by practitioner-oriented thinking and problem-solving.  We see law professors writing treatises based not just on a theoretical interest but also on having actually counseled clients--often thousands of them--in that field.  Today that is seen as something of a no-no (except for appellate work), as if real work as an attorney (even, yes, most appellate attorneys) somehow soils the pristine minds of the law school faculty halls.

The problem, fast-forwarded, is that doctrinal "research" is very, very lucrative.  Teaching is annoying, at best.  (True for all but a small minority of gifted teachers.)  One result of the MacCrate Report was the implementation of clinical legal education and legal-writing programs.  But, as with white bread, what had been taken out--most of the real nutrition--was being added back in only modest and sometimes odd form.  What we see now with legal writing programs in particular is a relatively small and starved group of faculty-within-a-faculty, often with much lower salaries, fewer or no perks, and, paradoxically, sometimes even less practical experience than the doctrinal professors they supposedly supplement (i.e., none).  They are, on the whole, dedicated and trying to do well, so this is not at all a comment directed toward them.

Believe it or not I don't come at this from a radical standpoint.  (Or at least not as radical as, say, Atticus Falcon.)  I did, however, grow up on a college campus.  So I have a rather different perspective than most, I suppose.  Perhaps the deeper question is the very real concern among students.  What should they be doing, and how should they be doing it?  Much of my concern is that it is extremely difficult to duplicate the sort of learning that goes on in a firm (or similar high-stress office such as a city DA).  Senior lawyers are very smart too, and most know how to write very, very well.  They have to.  So, for anyone interested, try to get a taste--in addition to the almost-one in law school--of the clinical and writing components through a live experience.  Presumably part-time, even volunteering will be helpful.  (And good for job contacts.)  Also read Morten Lund's second book, on memos.  It's legal writing as you'll actually have to do it.  If I were King, no diploma would be granted until this book had been read at least twelve times.

I hope this helps,

Thane.

[louiebstef]

I will now promptly steal (with proper attribution) my favorite quote from
Morten Lund's outstanding book, The Memo: Mastering the Legal Memorandum:

PARTNER [in an ESP broadcast to the eager summer associate]:   "Don't give me a headache!"

How does our intrepid young summer associate give the partner that headache?  You'll have
to read the book.  You NEED to read that book.  You WANT to read that book!