Outside Counsel

One way to consider our glamor profession is as consisting of three silos. There are the academics, the judges and the practitioners. As a person who teaches aspiring lawyers I think of myself as a law professor, even though "Professor" is an academic rank which I have not attained, and even though I have not produced the sort of writing that the legal academy regards as legal scholarship. I have actually produced a fair amount of legal writing, but it has mostly appeared in the sorts of publications that practicing lawyers read, as distinguished from law reviews which mostly nobody reads. My approach to legal pedagogy is likewise oriented towards the skills that lawyers employ rather than towards the theories that legal academics teach- and that I was taught. The theory is important, I think, in constructing persuasive arguments, although for the most part the people who do the deciding - that is to say, judges- have nearly as little interest in the theoretical underpinnings of, e.g. contract law, than even practicing lawyers. Practicing lawyers are, for the most part, wanting to obtain the best outcome for their clients, and shed theoretical considerations the way a duck sheds water.

Although legal academics sometimes become judges this is increasingly rare, I think. And although practicing lawyers sometimes become academics the reality is that the pathway to a teaching gig is pretty distant from the ordinary realities of actual lawyering. Generally speaking legal academics graduate at the top of their class, take a judicial clerkship or two, or maybe a very fancy gig a a governmental agency- DOJ is a good one- and then briefly practice in a niche specialty at a large firm. When they've had enough, which is usually within ten years of graduation, they  get out, and then when I meet them at fundraisers or the like they tell me, "I used to be a litigator." Friends, I didn't know shit about law for the first ten years I practiced, and while I will stipulate that these cats were better law students than I was I would put it to you that my time in the trenches blessed me with a lot more insight into how the system works than the path I have just outlined could ever generate.

Judges are a whole 'nother thing. Judges are political. The baseline qualification for being a judge is a broad familiarity with the outlines of the law, and when I say broad I mean extremely broad.

All of this brings me to this excellent piece.