Orin Kerr, a law prof at George Washington University and one of the Volokh conspirators, has pointed to an interesting essay by Amy Cohen (scroll down), a professor at Western New England College School of Law (located in Springfield, MA). Professor Cohen teaches intellectual property law, and for her sabbatical she did something most law professors would never stoop to: she went to a law firm and actually practiced intellectual property law. Upon returning to teaching, she wrote an article entitled "The Dangers of the Ivory Tower: The Obligation of Law Professors to Engage in the Practice of Law," published in the Loyola Law Review (50 Loy. L. Rev. 623 (2004), not available online). Go to the Volokh post for an excerpt.
After the excerpt, Kerr adds the following peculiar commentary:
Although I don’t think law professors have an obligation to practice law, an awareness and understanding of the issues that arise in legal practice can be tremendously valuable for professors both in terms of teaching students and writing scholarship. In most cases, understanding the real world can make academics much better at what they do. Even those who bring a more theoretical bent to their work can benefit, as it always helps to understand the real world details that you’re theorizing about.
At the same time, it’s important to note that the usefulness of practice experience depends on the subject. With a few exceptions, a couple of years at a firm won’t help you teach or write in the area of constitutional theory or jurisprudence. Law schools host a wide range of subjects and approaches, and some are less related to legal practice than others.
Can you imagine any other field in which someone would seriously advance the argument that people who teach in what are essentially trade schools – and don’t kid yourselves, my legal colleagues, that’s what law school is – need not have any idea what it’s actually like to practice the trade for which they are training their students? Would a music school ever hire someone to teach piano whose job application said "well, I’ve never actually played the piano, but I have a lot of interesting ideas about it"? My sense is that legal academics are on the whole not taken terribly seriously by academics in other fields (obviously, there are some individual exceptions). Part of that is the ridiculous system of student-run law reviews that afflicts legal academia – academics in other fields are stunned to learn that the most influential legal journals are edited entirely by students. And part of it is the disdain with which most legal academics treat the actual practice of law. ("In most cases" understanding the real world might help legal academics? Good Lord! Law is all about the real world, and the sooner legal academics who like to think deep thoughts about issues that matter to no one other than other law professors figure that out, the better off the law schools will be.)
It is traditionally, and I think correctly, said that even a straight-A student at a major law school will graduate without much hope of passing the bar without taking a bar review course, and largely lacking the skills that clients of major law firms would be interested in. Seems to me that if the folks who want to be law professors would spend a few more years in practice than they usually do, there would be some hope of bringing legal academics and legal practitioners (which is what 98% of the students will be) closer together.
So kudos to Professor Cohen for leaving the ivory tower to toil in the trenches with the rest of us. Further kudos to her for recognizing that her experience there will help her be a better teacher. Here’s hoping that other legal academics will follow her lead.
[Note: to be fair to Professor Kerr, although I think his post is somewhat misguided, he himself did practice law for several years in the field in which he now teaches.]
Right you are David. Of course law review articles and comments are not the same as say peer review publications in the sciences. But then, honestly, who looks at law review articles except people writing law review articles. The law is based on common law, case law, statutes and regs. If there were no more law review articles no one would notice. Very little effect on the practice. But that is not true for journals in other fields. They need journals to do their work. Lawyers do not. Although they can be helpful. Sometimes. The downside of your argument, which i agree with, is what practicing attorney wants to deal with a law professor who is practicing while on a sabatacal. Probably a real pain the ass who causes more problems then solves. Of course that is my one size fits all, close minded assessment.