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Webber, J --- "Legal Research, the Law Schools and the Profession" [2005] LegEdDig 25; (2005) 13(4) Legal Education Digest 12

Legal Research, the Law Schools and the Profession

J Webber

[2005] LegEdDig 25; (2005) 13(4) Legal Education Digest 12

26 Sydney L Rev 4, 2004, pp 565–586

The purpose of this paper is to explore why there appears to be a gulf between the law schools and the profession and to suggest how we might better understand that relationship. A vision is advanced of the contemporary role of law schools that is both descriptive and normative, focusing especially on one dimension of law schools’ activity, namely research.

The law schools and the profession have complementary but different functions. The law schools are not mere appendages to the profession, their purposes entirely defined by the latter’s needs and aspirations. Legal academics have a responsibility to do more than act as the extended research departments of law firms. They should include within their purview law’s broader themes — themes that are present in professional practice, but that tend to be submerged by the demands of the moment, and the effects of which are evident only in the long term.

Law is an immensely important social institution, making unique normative demands and having enormous impact. Those demands, that impact, deserve concerted attention, in a manner that ultimately goes beyond today’s practice. Most practitioners, of course, fully agree. Indeed it is often precisely that broader perspective that they appreciate most when they think back on their own legal education. That perspective has helped them prepare for, indeed contribute to, a continually changing legal environment. There is, and should be, a creative distance between the law school and the profession.

The law schools may contain proportionately more people who favour an expansive view of the judicial role. Barristers and judges tend to work within the existing order; their attitudes are formed, quite rightly, by an attempt to argue within a framework largely determined by existing practice and past decisions. Academics generally have a more sceptical, a more critical opinion of the law than do practitioners. When one firmly believes that the law is wrong, one is more likely to press for change by all available means. Hence, there is a tendency among some academics to push the limits of the judicial role — a tendency which should be tempered by more careful attention to institutional roles.

And there may be a more fundamental reason for divergence over the judicial role. Academics often engage in the sociological or historical examination of law; at least they pay considerable attention to those modes of analysis. Practitioners differ, for example, on what scholarship might assist them. This means that they also differ on whether their comments are meant as a reproach. But the fact remains that many judges and barristers wish that academics would offer more guidance on matters of professional concern. Some critics, however, go much further. They suggest that academics are losing touch with the profession, that they no longer understand law as it works in practice. The question here is not merely whether legal academics are doing useful research, but whether they are capable of doing so.

The law schools have sometimes done a singularly poor job of responding. Often the criticism has been expressed in relation to teaching, the most curmudgeonly and least informed critics openly wondering whether legal academics know enough about the practice to be training the next generation of legal practitioners. Although many proceed to careers in areas other than the private practice of law, it remains the case that the vast majority of our students study law in order to satisfy the academic requirements to enter the profession, even if they do not exercise that option. We certify that we have so educated them. Law schools do seek to educate students, above all, for practice. Indeed, at the same time that law schools have moved to emphasise theoretical and sociological approaches to law, they have sought new ways to prepare students for the profession through better instruction in such skills as legal research, writing, advocacy and ADR; through the expansion of clinical programs; through the integration of the academic programs and professional legal training; through pro bono schemes; and through problem-based learning.

The gulf between practice and academia does not go to the professional ability of individual academics. Rather it goes to professional orientation: whether the law schools are paying sufficient attention to professional concerns; whether their efforts are being directed towards types of inquiry that are the province of other disciplines, neglecting the core of legal analysis; and whether this is creating a regrettable disjuncture between the understanding of the law in the courts and that in the academy.

Before reviewing the factors that have produced the gulf, it is worth making a few general observations about the state of legal research in the universities. First, overall research productivity in the law schools has almost certainly expanded — dramatically — over the past 40 years. It is always difficult to measure research productivity. A substantial proportion of this output consists of standard legal analysis directed to the profession. The most characteristic form of professional publication is the textbook. Although some academics specialise in writing exclusively for the profession, a great many combine professionally oriented publications with work directed towards a more academic audience. This record does not suggest profound neglect of the practising profession. Nevertheless, a gulf has emerged between the law schools and the profession.

The evolution towards an increasingly academic approach accelerated from the 1970s on. The permanent academic staff expanded. There was, in short, a gradual extension of the view that university teaching and scholarship had their own standards of professionalism, their own standards of excellence, which diverged from those of the Bar. Some of the estrangement between the profession and the law schools is undoubtedly a product of this change. However, the extent of the separation should not be exaggerated. Full-time members of the profession remain highly valued participants in most universities’ teaching programs, enabling their specific expertise to be most effectively deployed. Nonetheless, there have been real benefits as a result of the move towards full-time academic staff. This is true on the teaching side. While many alumni deeply appreciate many of their practitioner-lecturers, they also realise that not all of them had the time to take their teaching responsibilities as seriously as one would like, or the ability to communicate their expertise. The current apportionment of roles is clearly preferable as long as the universities can secure and retain lecturers of the requisite quality.

The next cause of the gulf — the expansion of sociological research on law — departs from the professional’s perspective. This research has become much more common in law schools, especially as they have become more tightly integrated into the general research culture of universities. Few would argue against the need for more sociological research. At the same time, the law schools have seen a striking expansion in theoretical scholarship.

The gulf between the profession and the law schools is a result of the expansion of the latter’s role, so that the law schools speak to new audiences and engage in more profound analysis of legal phenomena. Academics and judges bring different tools to the task. They ask different questions. They situate their comments in different contexts.

Legal sociologists should seek ways of incorporating practitioners’ deliberation into their analyses, exploring the relationship between it and broader social factors. And those making legal arguments — professionals, judges and academics alike — should similarly reflect on how the two modes of explanation intersect. This may mean exploring how sociological studies might contribute to the construction of legal argument. The central task, then, is to listen to different interpretations, give them the respect they deserve, and strive for an over-arching understanding that can comprehend them all, or at least explain why they diverge.

The law schools are essential institutions in Australia’s legal culture. Their role includes, as a sine qua non, the training of a new generation of barristers and solicitors. It also includes the in-depth consideration of issues important to practice. But in addition to these tasks, the law schools’ role extends to the systematic investigation of law’s effects, consideration of law’s function in society, and reflection on law’s nature and foundational principles. Those are essential tasks of law schools. The role of the universities is therefore fundamental, and independent from that of the practising profession. There is a necessary gulf between practice and academia. Indeed the law schools are best conceived as a parallel branch of the profession, with their own responsibilities and their own set of professional standards. They are not merely the teaching and research arm of practice.

To insist upon that independence is not to say that the law schools should ignore the profession. Judges, barristers, solicitors, and legislators are essential interlocutors for legal academics. They form the constituencies that share our concerns most directly. The law schools and the profession confront, in their different ways, many of the same issues. Interaction with the profession serves as an indispensable stimulus for academic work and an important check when we find ourselves on the wrong road. The relationship should be cultivated.

Our students work in a changing environment. We must give them tools to function in that world so that they can reflect on where the law may be going and contribute to that development. Theoretical reflection is an important way to refine judgment, probably the most important (and most elusive) quality in a practitioner. A good law faculty therefore balances a complex set of demands, all of which are integral to its responsibilities. A law school must pitch an expansive tent, bringing together people who are focused on everything from the teaching of professional skills to the elaboration of an area of law, empirical research, and the most difficult concepts of legal philosophy.

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