Tuesday, October 23, 2007

From the Stone Age to the PhD Age

When Harlan Fiske Stone was Dean of Columbia Law School, he managed to work roughly half-time as a lawyer as well. This afternoon I'll be addressing an annual gathering of Columbia Law School's "Stone Agers." The group formerly consisted of alumni from the law school from the days of Stone's deanship, but Stone left the deanship in the mid-20s to become U.S. Attorney General, and so any alumni from that period would be over 100 years old by now. Accordingly, current Stone Agers now include anyone who has been out of CLS for 50 years or more.

The subject of my remarks to these alumni will be the changed relationship between the legal academy and legal practice. Undeniably, the last two or three decades have seen the legal academy move closer to the rest of the academy, in temperament and in training. Columbia is probably more on the "practice-focused" side of elite law schools, but even here, roughly half of our entry-level hires over the last decade have had doctorates in other fields (most commonly history or economics).

I don't have a strong normative point to make in my remarks, but I do want to suggest that there may be a false dichotomy between "practice" and "theory." I agree with those who say that legal academics do not provide much added value if they regard themselves as a kind of shadow Supreme Court, saying how they would do better at resolving cases than the actual Court (or as a shadow state court in common law subjects). Academic study of the law should bring to bear something that practice alone cannot.

That something is easy enough to identify for PhD law professors: the insights of their related disciplines. But what is it for us simple country lawyers? The conventional answer is reflection: An academic can think about an issue in depth and as it relates to a wide scope of other questions, without the pressure of deciding a particular case. In my remarks, I'm going to provide a tepid defense of this conventional wisdom, while also suggesting that PhD law professors answer the value-added problem but sometimes at some cost in terms of relevance to the students whom they are teaching. No doubt I'll end with a platitudinous call for a variety of methodologies and backgrounds. I'll also raise some ethical questions---based on my own experience representing clients---that arise when an academic turns to write scholarship on a subject in which he or she has worked for a client.