Lawyers, Scholars, and the “Middle Ground”

The Judge seems to be arguing that both teachers and firm lawyers have been seduced from their real vocation by the fatal attraction of neighboring cultures: the practitioners by the commercial culture of their business clients, the academics by the disciplinary paradigms and prestige of theory in the rest of the university. The “deserted middle ground” is the ground of professional practice – practical, yet also public-minded. Perhaps without straining his thesis too far we could ascribe to Judge Edwards a “republican” view of the legal profession, in which legal scholars, practitioners, judges, legislators, and administrators – despite their separate interests and distinct roles in a division of labor – are all participants in a common enterprise. They are, or at any rate ought to be, engaged in trying to construct the legal system as a medium in which the pursuit of private advantage – their own and that of their clients and constituencies – can be aligned with some plausible conception of the public interest.

If Judge Edwards has something like this in mind, I have a lot of sympathy with it. And I have to admit right away that his critique of current legal scholarship, though I will be arguing shortly that it is an indiscriminate and overgeneralized critique, has a gritty core of unpleasant truth. The legal-academic machine is undoubtedly cranking out a good deal of useless blather: articles that seem to have hardly anything to do with addressing or understanding any legal problem, articles clotted with hermetic jargon or puffed up with self-indulgent posturing, articles clumsily practicing intellectual modes that people in other fields execute with much more grace and precision, articles borrowing intellectual fashions that would be better off never having been invented. But Judge Edwards’ vision of what we should be doing, of what the “middle ground” of practical-yet-public-minded professionalism ought to look like, is incredibly, even distressingly, narrow – indeed very much narrower than any of the major views of professionalism and the proper functions of legal scholarship that commentators have entertained since the creation of the modem bar and modem law school in the late nineteenth century. In what follows I would like to explain what I think Judge Edwards’ vision of the professional enterprise is, and why I think it is unacceptably limited. Moreover, I want to specify how a broader vision would reveal that a good deal of the scholarship that Judge Edwards believes is irrelevant to the professional enterprise is practically useful, or would be if anyone wanted to use it. I will finish by offering my own speculations on the reasons scholars and practitioners are discontented with one another and by gesturing vaguely in the direction of possible remedies.