02/14/2013 05:38 pm ET | Updated Apr 16, 2013

The Practicing Professor

There are no new debates. The latest argument about the legal academy seems to be whether law schools ought to hire as professors those individuals with established careers in practice instead of intellectuals who boast extraordinary potential for publishing.

This is old, old, old. Jerome Frank, a New Deal official who became a federal judge, proposed before World War II that law schools be staffed by practitioners. A "Legal Realist" with an academic bent, Judge Frank anticipated clinical education by two generations.

More importantly, this debate sets up a false dichotomy. Everyone agrees that legal education should prepare people to solve problems in the real world. There are no takers for the proposition that legal education should strive to be useless.

This strange debate misses the crucial point. The most important set of skills for a teacher are possessed inherently by neither practitioners nor scholars. It would seem obvious but it is obscured by assumptions enveloped in anger. The most important set of skills for a teacher are the skills of teaching. If you insist on a fancy term for it, call it "pedagogy."

The people who are accomplished teachers are the people who have been trained to teach or who have taught themselves. Lawyers who have practiced for a considerable period of time might well have been gifted mentors -- or not. Lawyers span the range in this regard, and the incentives of the modern firm do not favor those who would take time for a protege. Scholars who have been in school continuously likely had ample opportunity to appear in the classroom, but they may not have had any instruction in instructing before being put behind a podium. Their very emphasis on research probably did not lead to enthusiasm for everything else that constituted a distraction.

The declaration by practicing lawyers who have confidence that they can "retire" into the professoriate is self-interested: essentially, it is the demand, "Hire me!" Or it is self-praise: "People like me are the best!"

Imagine even the most renowned law professors stopping by the managing partner's office to say that, after twenty-five years in their current job, they wanted to slow down and were ready to make a contribution to their old firm. Supply and demand in the two markets is dissimilar: there are many more lawyers than professors at the top, which operates to the disadvantage of lawyers trying to transition into professors.

Everyone thinks in such egotistical terms. I'm no different. I think it is ideal to blend together practical experience and academic orientation, because that's how I happened to have developed as a professor. Although I had only a couple years as an associate at a major firm, I then spent seven years supervising student-attorneys working for real clients on real cases. I would defy anyone who hasn't worked in such a clinical setting to claim that it isn't an authentic version of what lawyers do; if anything, it's all the more so.

For that matter, I never noticed any special correlation between my knowledge of the subject and my effectiveness as a teacher. I am aware that the sample size isn't much -- that's a problem with the practitioner-as-teacher model, which is over reliance on a personal perspective -- but the haphazard research I have done suggests others have the same sense. I do not mean you can teach if you are ignorant of a field. You need at least a minimum level of understanding.

Beyond that, however, I actually noticed some degradation of my performance as I acquired expertise: the more I appreciated about civil procedure, the worse I was as a teacher of it. I became inept at communicating the core of the course.

I suppose that happened for many reasons. My interests became more esoteric. I forgot what it was like to be confronting the baffling concept of procedure for the first time. My preparation was at its most intense at the outset. I became impatient about covering the same material again.

To the extent I was successful with students, which was now and again, it was due to a different set of factors entirely. Rather than being determined by what I knew, it depended on how I presented it. I was not put there to demonstrate my own competence. Simultaneously, I had to inspire and challenge. The bond I formed with the students as a group, and the trust they had that I was trying to help them not humiliate them, were as essential as the arcane data I had at my disposal.

We are prone to a systematic mistake. We want to trust in universal competence, the supposition that if a person is good at one thing then she will be good at another thing and vice versa. Our conviction is wrong. People are perfectly capable of being good at one thing but bad at another thing even if the tasks are related to some extent.

There are parallels to other endeavors. I was always puzzled that the best managers in baseball have tended to be journeymen athletes. They had made the major leagues, which should not be scoffed at, but by and large they did not turn out to be superstars. As a corollary, future Hall of Famers who tried a leadership role after their playing days often ended up shocking underachievers. Sparky Anderson, the first to win a World Series for each league (Cincinnati Reds and Detroit Tigers) was the former; Alan Trammell, one of the preeminent shortstops of all time (Detroit Tigers) was the latter as his successor (managing his team to a 186-300 win-loss record over three seasons).

I asked my nephew, a sports nut, what might explain these phenomena. His hypothesis, which seems plausible, is that the best managers are concentrating on how to deploy their own merely very good raw talent; on the field earlier, their performance meant they had to hustle to make the cut. By contrast, their naturally able competitors felt not as much need to exert themselves to their limits; consequently, they didn't call on all their abilities, including of analysis, at least not as constantly.

So I have a wager. The assertion that practitioners make better teachers is an empirical claim. It can be tested. I will bet a nickel that a study of law school professors would find that how a teacher is evaluated by either students or experts is based on many variables, among which years in practice is not the most significant. I also will bet it would show that there are exceptional teachers with extensive backgrounds in practice as well as counterparts with no background in practice, as well as mediocre teachers with every length of prior practice.

Irony runs throughout this discussion. I've never thought there was anything wrong with the trades, and the distinction between a profession (of which law is held up as representative) and a trade (of which plumbing, it appears, is the standard example) is as much snobbery as anything else. I find it more insulting to plumbers than lawyers that people say they don't want law school to be a trade school. The problem is that if law school dispensed with any discussion of justice, ethics, and the purposes of the system, the very same people who attack us for being too theoretical would start to assail us for being too materialistic. I would hope that critics of legal education would want us to instill in students the desire to do more than carry out the wishes of their clients.

I should be clear: I welcome practitioners as professors. But I am not persuaded by the contention that practitioners are the only ones who are qualified to be professors.

My conclusion is that the choice presented to us imposes constraints that are not necessary. In a great law school, the faculty displays diversity. There are professors who have distinguished themselves as trial lawyers, those who have impressed their peers by penning treatises, and more than a few who have both sufficient practice in their past to be credible and enough publications on their curriculum vitae to be respected.

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