Friday, February 15, 2013

The wrong kind of theory

Legal education has come under a great deal of fire lately.  One criticism that has been around long before the recent legal education crisis, however, is that law schools teach only theory, and not practical skills.  The debate, in a nutshell, boils down to two competing camps.  The practicing-lawyer camp mocks theory, while praising the value of a practical education.  After all, we lawyers are licensed to practice law, and clients deserve some basic level of competence, even from new graduates.  The law-professor camp, on the other hand, elevates theory to heavenly heights, singing its praises along with the importance of teaching students “how to think like a lawyer”—whatever that phrase may mean.  Unfortunately, the two sides are only preaching to their respective choirs.  In fact, the debate never gets off the ground because the word theory means something different to each camp.

To understand the difference between theoretical and practical knowledge, take, for example, the confrontation clause—a topic about which I have both argued and published fairly extensively.  Anyone who hopes to get a true grasp on the confrontation clause needs to struggle with a lot of theory.  What do the words in the confrontation clause mean?  What is the nature of the rights that the confrontation clause was meant to protect?  What types of statements, even if very harmful to a defendant, would fall outside of the reach of the confrontation clause, and why?  How much should judicial discretion affect the right of confrontation from court to court, county to county, and state to state?

But, any lawyer who hopes to get a true grasp on the confrontation clause also needs to struggle with several practical matters.  For example (from a defense lawyer’s perspective), how will prosecutors try to bypass the confrontation clause in order to get their hearsay into evidence against my client?  If they satisfy the confrontation clause do they even have to worry about the hearsay rule?  When and how do I raise a confrontation clause objection?  How do I preserve the record for appeal if the judge rules against me?

Obviously, the two things—theory and practice—are inseparable.  A professor or lawyer could not fully appreciate, let alone answer, the theoretical question about what types of statements should fall outside the protection of the confrontation clause unless they knew, as a practical matter, some of the tactics that prosecutors use to try to bypass a defendant’s right of confrontation.  (Whether this practical knowledge needs to be gained firsthand, i.e., by actually litigating cases in the courtroom, is another question, to which I think the answer is no; I think that this practical knowledge can be gained in other ways.  Conversely, however, some law professors mistakenly think that, because they lack experience, they must have some special insight into theoretical matters that the rest of us don’t have.)

And if this was what the debate was really about, the answer would be that both camps are wrong (or right, if you are a “glass half full” type of person).  The answer is that theoretical and practical knowledge are equally important.  However, this is not what the debate is about.  When the law-professor camp uses the word theory, they are not talking about the “legal theory” that I described above.  Instead, they are talking about “social science theory,” as it applies to law.  The questions they like to focus on are not theoretical in a legal sense, like the questions I posed above with regard to the confrontation clause; instead, they like to ask whether a particular law makes sense from an economic perspective, a sociological perspective, a psychological perspective, etc.

This social science theory can be interesting, and, in some cases, even useful.  For example, the Supreme Court has held that physical evidence obtained in violation of the fourth amendment should only be suppressed if suppression would deter future police misconduct.  And in this context, the discipline of economics sheds a great deal of light on topics like incentives and deterrence.  As another example, courts in some jurisdictions have held that a party can call an expert witness if that expert will be testifying about things outside of the general knowledge of the typical juror.  And in this context, psychological studies have much to offer to lawyers and judges.

I am not against social science theory; I have even published on law and economics and law and psychology—something I wouldn’t have spent hundreds of hours doing if these social science disciplines didn’t have something valuable to offer.  The problem, however, is that law schools are letting the tail wag the dog.  That is, they are not using the social sciences to aid in the understanding or practice of law; rather, they are elevating social science theory above legal practice, and even above legal theory. 

Evidence of this prioritization problem can be found in recent law school hiring.  Gone are the days of hiring skilled lawyers as law professors; most new professors have little or no experience practicing law.  Rather, the typical new hire graduated from a law school highly ranked by US News & World Report, and typically clerked for a judge for one year before entering academia.  Some people find it unbelievable that lawyers are being trained by law professors who haven’t practiced law.  (And, if analogized to doctors and the medical profession, a case can be made that this method of training lawyers is disastrous.)  But as surprising as that might be, the newest trend among law schools is to hire social science Ph.D.s as law professors.  That’s right: law professors without a law degree.  (See this somewhat dated post for more specifics.)

So let’s go back and reframe the original debate.  If the competition is between “social science theory” and a practical education, I have to declare the lawyer-camp the winner of the debate.  Practical education is far more important.  Social science theory can, in some cases, be important as a tool in legal analysis, but is not important in-and-of itself. 

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