Although the privilege traditionally accorded theory in legal education is well known among members of the legal academy and fiercely guarded by some, the financial crisis of 2008 caused even the popular press to take notice. The resulting public scrutiny of American law schools has been a mixed blessing. Since then, many law schools have rushed to develop “practice ready” programs to attract applicants, and the American Bar Association now requires law students to take (and law schools to provide) one or more experiential courses totaling at least six credit hours. But the magnitude of the change in legal education that we have witnessed in the last few years is difficult to absorb, particularly when it is the result of external pressure. Understandably, the rapid response of law school administrators to widespread criticism has been met with some internal resistance.
On its website, the Association of American Law Schools (“AALS”) now has a link to an article, On Legal Scholarship, stating that “[t]he scholarly mission of the legal academy is under attack from all corners” and defending the importance of legal scholarship. Recently, the American Academy of Arts and Sciences sponsored a program, The Crisis in Legal Education, to address the value of legal scholarship and the dramatic changes in the structure of legal services, declining enrollments, and unremitting pressure to provide graduates who are “practice ready.” The entrenchment of positions on both sides within the legal academy is both curious and disturbing. There is no question, in my mind at least, that legal scholarship is critical to the mission of the legal academy as well as to the profession and that law students who want to practice law must learn more than how to “think like lawyers.” The question is one of balance for our students: To what extent are theory and practice severable in legal education, and to what extent is severing them desirable? Does promoting one necessarily diminish the other?
As partial inspiration for this Symposium and in his 2014 article on the inseparability of theory and practice, Professor Lloyd intones Immanuel Kant: “Thoughts without content are empty; intuitions without concepts are blind.” As Lloyd explains, “[T]heory by definition seeks to explain practice. To remove practice from theory would therefore leave theory empty with nothing to explain.” Kant was certainly not the first to recognize that theory cannot exist without its application or that knowledge is a function of experience. Sir Francis Bacon, for example, an English philosopher and lawyer, wrote early in the seventeenth century that theories “perfect nature, and are perfected by experience.” But the notion that theory and practice should be taught together dates back to classical rhetoric and its greatest champion, Aristotle.
