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Is Legal Scholarship Barren of Meaning?

Oct. 28, 2015, 1:54 PM

Editor’s Note: The author of this post is the founder and CEO of Legal Mosaic, a strategic consulting firm and a regular contributor to Big Law Business.

By Mark Cohen, Chief Executive Officer, Legalmosaic

Have you ever wondered why “legal scholarship” has little to do with legal practice?

The Oxford Advanced Learner’s Dictionary defines scholarship as: “the serious study of an academic subject and the knowledge and methods involved.” If we accept this definition and apply it to “legal scholarship,” there is a disconnect.

Law professors are the profession’s self-designated “scholars.” But many of them have never practiced law. So how can they be deemed to have an understanding of “the knowledge and methods” of practice? And with little or no practice experience and an unfamiliarity with trends in the marketplace, how is their scholarship relevant to the tectonic shift in legal delivery?

This begs the question: why do law school professors have a stranglehold on legal scholarship? What about leading practitioners who help shape the law? And what about legal entrepreneurs who are re-engineering the structures and methods by which legal services are being delivered?

And why are legal thought leaders not deemed to be engaged in legal scholarship when they explain — sometimes demystify — the legal ecosystem to law students, lawyers, and the general public? Why are these individuals, many of whom have drawn their scholarship from first-hand experience — not secondary sources — not considered legal scholars by the Academy? After all, was it not lawyers who decreed that hearsay is generally inadmissible? So much of what passes for legal scholarship is hearsay because so little of it has been derived from first-hand experience.

And consider the trend in faculty hiring as reported in a recent study by UCLA Law that will soon be published in the Journal of Legal Education. Instead of hiring lawyers with experience, law schools are doubling down on academic credentials. The UCLA research found that two-thirds of tenure-track faculty hires at the top 26 U.S. law schools now have J.D.-Phd.s. The study concludes that: “If current hiring trends continue, a majority of the members of top twenty-six law faculties will hold Ph.D.s by 2028, and a large majority of them will have no experience in law practice.”

So who cares about what passes for legal scholarship, and does it really matter? Until recently, it didnotmatter much. Law professors delivered a doctrinal-heavy curriculum designed to prepare students either for an academic career (generally the purview of students who set the curve) or, more likely, a career in private practice.

Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria

The process worked, because law firms provided young lawyers with on-the-job training subsidized by clients. There was no need for law students to graduate with practice skills. Firms also provided mentorship and a reliable path to economic security. Plus, law schools were not terribly expensive and student debt was negligible compared to current standards. And so law schools focused on hiring faculty scholars — generally meaning they had published lots of articles and, sometimes, books, on arcane topics.

Think this is a snarky view? Well, remember what Chief Justice Roberts had to say on the topic: “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”

While many academics were peeved by the Chief Justice’s remarks, he certainly has standing — as lawyers would say — to opine about legal scholarship. And the fact that he decried the gap between what passes for it and how little relevance it has on the profession speaks volumes.

Not All Professions View Scholarship as Law Does

It’s not that way with every profession. In healthcare (f/k/a “medicine”), scholarship typically involves research that is highly relevant to practice as well as patient care. And while not all medical research may have led to a cure for cancer (though somehashelped combat certain forms), it generallyhashad a direct and significantly ameliorating impact upon public health and patient care.

Translation: legal scholarship lacks the societal impact it has in other fields. And that has several important consequences.

How Does Legal Scholarship Affect the Profession?

Let’s start with law schools.

The average law professor teaches only 8 hours per week, reserving the rest of the time for preparation and research.

It’s no secret that law schools — at least the vast majority of them — are having a difficult time. Declining enrollment, lower applicant test scores (prompting one writer to question whether law students are “getting dumber”), sky-high cost and resultant student debt, a three year commitment, changes in legal delivery, dreadful post-graduation job placement statistics, ratings pressure, and fiscal challenges are transforming the once-cushy life of a law school Dean into a tough job. But what does legal scholarship have to do with this?

For starters, it affects faculty hiring. Law professors are hired largely based upon their scholarship, not necessarily on their teaching skill, and even less so based upon practice experience. Yes, most schools have clinical programs, but the corecurriculaare still tipped heavily on doctrinal rather than experiential learning. Then too, the average law professor teaches only 8 hours per week, reserving the rest of the time for preparation and research. No wonder law graduates are not “practice ready” upon graduation.

Law Students do not Derive Much Benefit from Legal Scholarship

It’s hard to establish causation between “legal scholarship” and a Return on Investment (ROI) on the substantial law school investment. That is not a knock on the Academy, much less on Professor Kingsfield, the bombastically entertaining contracts professor in “The Paper Chase.”

But at a time when the job market demands “practice ready” graduates, law schools’ continued emphasis on professors heavy on scholarship and light on practical experience does not serve students well. Nor does it help now law schools whose all-important ranking will soon be more tightly tied to job placement numbers. Add to that a general ignorance — if not disregard — of developments in the legal marketplace by most faculty and one can begin to appreciate the damaging impact that “legal scholarship” has on law students. They would be far better served were the Academy to take a broader definition of scholarship, one that includes practice experience as well as marketplace acumen. And that should translate to faculty hiring criteria.

Why don’t law schools hire at least some faculty knowledgeable about the contemporary global legal marketplace and with contacts there? And why not add courses that provide students with critical training in areas where there is a marketplace need? Some examples include: project management (a course I teach at Georgetown Law), eDiscovery, cyber security, legal technology, and client interaction to cite a few.

Legal service delivery is rapidly morphing from the traditional law firm model to a more wide-open array of service providers and legal technology companies.

Why not have more experiential teaching based upon real-life practice? This would not only help prepare students for real-life practice issues they are sure to experience, but it would also bring to life for them core doctrinal courses such as civil procedure, contracts, legal ethics, evidence, and others. They would see how those courses translate to legal delivery.

Legal Scholarship Affects Legal Service Providers, Too

The delivery of legal services is also affected by legal scholarship. Legal service delivery is rapidly morphing from the traditional law firm model to a more wide-open array of service providers and legal technology companies. These providers typically engage in interdisciplinary practice, paring lawyers with business and technology experts, among others.

“Just being a lawyer” generally does not cut it for lawyers anymore.

Translation: legal service providers want lawyers who are not one trick ponies. They expect lawyers to have a grasp of business process, accounting basics, and technology. The traditional law school curriculum — and its emphasis on “scholarship”— prepares students for legal careers that are increasingly not there. This serves neither students nor the private sector well. And, in the end, it could make most law schools irrelevant.

The disconnect between what law schools are teaching — and more importantly, what they arenotteaching — reminds me of the startling statistic that there are approximately four million unfilled “STEM” jobs.

A similar disconnect exists in law where legal service providers, in-house legal departments-even law firms-have a need for graduates with legal backgrounds coupled with other skill sets. Those skills include project management, technology, and legal operations. There is opportunity for those with the right training, and law schools must do a better job delivering it. That requires a more balanced faculty composition and new standards for defining “legal scholarship” as well as re-calibrating its importance in faculty hiring.

Conclusion

It’s time to rethink, redefine, and redeploy “legal scholarship.” Why not focus it on solving big issues that affect people?

The access to justice crisis, inequities in the criminal justice system, and immigration are three areas that come to mind. Legal scholarship applied to these challenges could have a profound and positive impact on improving lives. It could also provide opportunities for lawyers as well as enhance the public perception of the profession.

John Roberts, for one, would likely concur.

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