Orin Kerr, a member of the Volokh Conspiracy, has a post on an issue that has been debated at length in the legal academy: Should law professors spend some time practicing law? (His post makes reference to an article by Amy Cohen, a professor at Western New England College of Law, entitled The Dangers of the Ivory Tower: The Obligation of Law Professors to Engage in the Practice of Law.) Readers outside the legal academy may be surprised that this is even an issue. Law is a practical discipline and law school apparently exist to train students to do something — namely, practice law. If law professors don’t have any experience in the practice of law, how are they supposed to prepare students for practice? To quote Woody Allen’s paraphrase of an old joke, "Those who can’t do, teach; those who can’t teach, teach gym." A common caricature of the legal academy is that it is stocked with refugees from practice, or people who never went into practice in the first place, who are trying to avoid the kinds of practical questions that lawyers grapple with on a daily basis.
Lawyers and judges have been worried about this problem for some time. About a decade ago, U.S. Court of Appeals Judge Harry Edwards wrote an instantly famous article entitled, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34 (1992), lamenting the increasingly theoretical emphasis in legal scholarship, law school teaching, and the hiring practices of law faculty appointments committees. He worried that law professors with graduate training in allied disciplines such as economics, psychology, philosophy, or literary criticism would sit in their ivory towers and "pour scorn upon the legal profession." Faculty who are preoccupied with the Coase theorem or the philosophy of language would predictably ignore production of old-school legal scholarship — doctrinal articles and treatises like Wigmore on Evidence — which are useful to practicing lawyers and judges.
Much has been said in response to the Edwards criticism, which I won’t repeat here, but it’s worth pointing out the extent to which law schools are simply responding rationally to incentives. We all hate the U.S. News rankings, but students and alumni seem to live and die by them. A major component of a school’s overall ranking is its reputation among other law professors, who presumably do not value doctrinal scholarship as highly as interdisciplinary work. Law schools that are part of larger universities also face pressure to look and act more like other departments, which can mean producing scholarship that is more theoretically oriented.
But these are just excuses which do not, by themselves, justify the trend toward hiring junior faculty members who have very little practical experience, if it in fact exists. What can be said by way of justification of this alleged trend? One possible justification is that interdisciplinary scholarship genuinely yields useful insights that can be applied to practical problems by lawyers and judges. Judge Posner, in his response to Edwards, lists some of the ways that law and economics has transformed the fields of antitrust, tort, and regulatory law. A different sort of response would be to question whether all the research activities of professors must result in practical benefits. If a physicist contrives an experiment that leads to the confirmation of the existence of the Higgs scalar boson, I’ll count that as a good thing, even if it does not yield any tangible benefit to industry. Naturally, one might argue that lawyers are engineers, not physicists, but that does not mean their teachers must only be those with an "engineering" mindset. The equivalent of pure science research should be permitted to flourish in law schools.
None of this is to say that law professors should be permitted to "pour scorn upon the legal profession." The vast majority of our students will become practicing lawyers, and they should be adequately prepared for law practice. Despite Judge Edwards' rhetoric, most law professors do care about the perspective of would-be lawyers, and most new hires continue to have some practical experience. Moreover, despite occasional anecdotes about wacky esoteric classes, I have not seen any evidence of a systematic abandonment by law schools of a traditional doctrinal curriculum. To the extent law professors find their teaching and scholarship enriched by a stint in practice, as Prof. Cohen did, it should also be encouraged.