Skip to content

Two Birds One Stone: Thoughts on Theory and Law Practice

As Lawrence Cunnigham’s post explains, the patterns regarding law firms and law as a business are not new. Still, the comments have asked properly why partners don’t move away from high per partner profits and try and keep associates. The answer to that is complicated to say the least. The trend to megafirms and the evils of the AmLaw approach deserve deeper thought. I think that others have done such work. I will simply note that there are smaller firms that promote more balance in hours and still pay partners in the mid-six figure realm. I have also been told that it is difficult to maintain such a practice. I think Bill Henderson’s post addressed that point too. There are a host of questions here: Is there an underserved middle market? Do the supposedly best graduates go to the big firms always? AND can you new graduates find or start such civilized firms?

As for the legal education model and scholarship, any student who thinks that learning the simple law as it is today is the point of law school must give up that idea. The law moves fast. If one has not learned how to keep pace with those changes, one risks obsolescence. Mike’s post about law review submissions comes at this issue from another direction. Can there be pure theory pieces that make little sense to all but the initiated? Of course. Is theory important and useful for law students, lawyers, and judges? Damn straight. Anyone who thinks that judges simply follow the rules has missed the point. A host of theories, ideas, and dare I say jurisprudential views, inform and shape the law. Just look at the now familiar issue of copyright and downloading. The lawyers who had to explain to courts and/or Congress exactly why or why not the law should be one way or the other used theoretical frameworks to persuade.

Furthermore, those who think that the Paper Chase approach is out-dated miss one point. I will cede that cruelty and belittlement are not necessary. BUT I will not cede that professors ought not demand that students continually explain why whatever they say is true or ought to be. As an undergraduate, I was fortunate enough to have a class that had more than 200 students, a seating chart, and full Socratic method. It was taught by Phillipe Nonet. He would push people. They would reach a wall. They hated it. He, however, would move on when someone did not know the answer, and I do not recall him singling anyone out if they did not know the answer. If he called on someone and they were unprepared, he would move on. So yes, we had to be able to start the conversation about the facts or details of the reading. After that the idea was to see how far we could take an idea. It was exhausting and thrilling.

One time, four or five people said they were unprepared at the start of class. He left the lecture. I had heard from friends that this event was almost guaranteed to occur. The next class, Nonet began as always by asking whether we were prepared. I cracked a small grin, because I knew about the propensity to walk out. He saw my smile and asked, “Mr. Desai, are we prepared?” I was nervous but said, “I think so.” The magic words came next, “Then, let us begin.” We went at it for the entire 50 minute period. I did not drop a question and managed to counter an idea he offered. It was exhilarating. It was being in the zone. I could not have done that but for the fact that I had been pushing myself for weeks getting into what the material said and the theory. That is why I could see where the law might go.

Ladies and gentlemen, I urge you to embrace the nerd within. Demand it of yourself and your professors. Learn the basics and then go to the next level. Then the next. Never stop. And, here’s the trick. Rote learning of the supposed answer is difficult, but not that difficult. If you want to be that person who can do anything with a law degree or even just a good attorney you will have to be someone who engages with theory. Why? Because that is where the true mental training exists. Theory divorced from practical knowledge is sterile. Practical knowledge divorced from theory is also sterile. The best lawyers solve the most difficult problems because they know how to reason and link facts and with ideas. Engaging with theory is a great way to develop that ability. And you may find that it is much more interesting than regurgitation learning (be a doctor if you prefer that approach).