A Decade Debate: Is Law a Learned Profession or a Profession of Theory?

In a recent op-ed piece, Judge Richard Posner of the seventh circuit asks why more law schools do not hire professors with extensive “real-world” practice experience.[1]

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Historically, and to this day, there has been a standard path towards professorial appointment, and it goes like this:

(1) Do very well in a highly ranked undergraduate program;

(2) Get accepted to the most selective law school you can;

(3) Obtain a Judicial clerkship with a circuit court judge known for placing clerks on the Supreme Court

(4) Lock down that plum position as a clerk on the Supreme Court.

The denouement of this 10-year path, for some, has been a professorial appointment at your local, exclusive law school.


Notably absent from this formula though is a requirement for those professors to have actual practice experience.  There is no argument that professors from this milieu are very bright and admittedly capable of writing outstanding law review articles, giving insightful speeches at seminars, and capable of training the next generation of law clerks, professors and scholars.  They deserve both our respect and congratulations on a job well done.

However, as the Carnegie Report stated nearly 10 years ago, “Most law schools give only casual attention to teaching students how to use legal thinking in the complexity of actual law practice. Unlike other professional education, most notably medical school, legal education typically pays relatively little attention to direct training in professional practice. The result is to prolong and reinforce the habits of thinking like a student rather than an apprentice practitioner, conveying the impression that lawyers are more like competitive scholars than attorneys engaged with the problems of clients.”

Judge Posner has his doubts too. Even today. He suggests that there is still a continuing divide between what he calls “the academy” of law professors and the “actual practice of law.” His solution is one that Western Michigan University Cooley Law School has as part of their mission since its founding in 1972. Unlike most law schools, WMU-Cooley has always focused on training students for the actual practice of law. To accomplish this goal, the School has long taken Judge Posner’s advice by hiring “a high percentage of lawyers with significant practical experience.” In fact, WMU-Cooley will not hire a professor unless he or she has actual practice experience.

WMU-Cooley full-time faculty have an average of 11 years of actual practice experience. To that end, the law school also injects a deep bench of adjunct faculty comprised of engaged practitioners and Judges with specialized and ongoing experience in the subject matter they teach.  This combination of experience and knowledge is critical to the accomplishment of the school’s mission of training the next generation of knowledgeable and skilled practitioners.  The American Bar Association agrees. The latest ABA Standards and Rules outline the importance of learning outcomes including teaching law students the “proper professional and ethical responsibilities to clients and the legal system” and “other professional skills needed for competent and ethical participation as a member of the legal profession.”

Both Judge Posner and the ABA understand that law is a learned profession. WMU-Cooley believes the best way to learn a profession is not in the rarified air of a debating society.  Rather, it is through the guided experience of learning from those who know what it means to represent clients, know what it means to argue cases, and know what it means to negotiate a complex business transaction.

schlinder_devinBlog author Professor Devin Schindler teaches Constitutional Law and Health Care Regulation at WMU-Cooley Law School’s Grand Rapids campus. Before joining the Cooley full-time faculty in May 2007, Professor Schindler was a partner with the law firm of Warner, Norcross & Judd, in Grand Rapids, Mich., 1986-2007. He has appeared three times in front of the Michigan Supreme Court, most recently winning in the case Tomecek v Bavas. Professor Schindler has litigated numerous constitutional issues at all levels of state and federal courts, including the Michigan Supreme Court and the Sixth Circuit Court of Appeals. In addition to being named a Superlawyer by The Detroit News, Professor Schindler has also been named as one of “The Best Lawyers in America” in the fields of healthcare law and commercial litigation.

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