Legal Commentary

As some of you know, we at Marquette recently moved into a spectacular new building. Yesterday, we dedicated Eckstein Hall and heard remarks from, among others, Antonin Scalia. Justice Scalia decided to comment on the perceived divide between the legal academy and practicing lawyers. He suggested that too many academics regard the practice of law as somehow ?dirty? and called on law professors to spend more time on teaching than on publishing ? even as he recalled how he, as an academic, had come to begrudge the time that teaching took from his scholarship. The life of the Great American Law Review Article is, he said, about ten years and "[t]he reality is that the part of your academic career that will have the most lasting impact and that will be remembered after you are long gone is those hours you spent producing a living intellectual legacy in the classroom ?."

This brought to mind the ongoing debate over the practical and theoretical and whether law faculties are made up of those who cannot ? or will not ? practice what they preach.

I came to full time law teaching with more practice experience (twenty six years) than a handful of faculty around the country.  I agree that most law school faculty have very little practice experience and often don?t know it. Three to eight years as an associate at a large law firm does not make an experienced lawyer. In fact, I would argue that, even in the rarefied air of a Big Law Firm, a person has no idea of what the practice is really about until they spend a few years as a partner. That divide is about a lot more than money and prestige.

But,  of course, even my own experience is limited. Most students at most law firms are not going to become part of Big Law (perhaps to their professional and personal gain) and will face different challenges that I faced as a litigator at a mega firm and (essentially) the only lawyer for a privately held firm with operations around the world. In particular, they will face pressures for efficiency and a need to demonstrate the emotional intelligence required for those in a helping profession that are, while not absent, far less acute in big law firms.

But my own experience suggests that the debate ? at least as it often proceeds ? is overly crude. I found (as I expected to find) that moving into full time teaching and scholarship would challenge me and force me to stretch myself. It took work to find my place as a scholar (if, in fact, I have). It took, to be honest, even more work to find my groove as a teacher ? something that I think I am only beginning to accomplish.

But there is more. I still practice a bit. I have found that that ? particularly in litigation ? I practice differently (and better) than I used to.

This suggests to me that the theoretical and practical are less alternative approaches than they are two essential paths to the same goal. The reason, ironically, is rooted in what it means to be a successful lawyer at levels of experience that most full time law faculty never reach.

Practicing law ultimately becomes an exercise in judgment and in the management of uncertainty. Technique is important but legal problems are often not merely a matter of discerning the law or exercising technical craft. The thorniest issues require critical analysis that, while aided by legal knowledge, is not circumscribed by it.

What I think needs to improve ? at least it?s an area where I want to improve ? is in connecting theory and even the occasional ?high minded course? (I teach Law and Theology) to what lawyers do.

A version of this was posted in response to a thoughtful student comment at the Marquette University Law School Faculty Blog.