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LEGAL THEORY
ON THE THEORY AND PRACTICE OF LAW
Stephen Wizner (1989). ‘What is a Law School?’ Emory Law Journal, Vol. 38, pp. 701-
714.
Stephen Wizner (2002). ‘The Law School Clinic: Legal Education in the Interests of
Justice,’ Fordham Law Review, Vol. 70, pp. 1929-1937.
How should the theory of law relate to the practice of law?
Stephen Wizner, the William O. Douglas Clinical Professor of Law, at Yale Law
School addresses this question in essays on legal education that were published in
law journals in 1989 and 2002.
This paper summarizes the main points raised by Stephen Wizner in these essays in
the attempt to answer the question given above.
Needless to say, this question is as relevant now as ever before for members of the
law school community.
It should also be of interest to those who are interested in the history of legal
education, legal theory, and the case method in professional schools like Harvard
and Yale.
It would not be correct to say that this is the only question that is addressed by
Stephen Wizner; he is also interested, as he puts it, in the give-and-take between
‘law, legal education, and the legal process.’
In other words, what we need to do is to answer the main question within the
contexts relating to a theory of law, the forms of legal education prevalent in

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American law schools, and then connect it to the legal process that constitutes the
legal system in the United States.
That is easier said than done, but I want to start with what is at stake in ‘defining a
law school’ since the law is what the law schools and the legal system say it is.
Stephen Wizner’s first essay has a deceptively simple title to what is actually a
difficult question to answer since it is possible to dig out the basic assumptions that a
law professor makes about legal education from his definition of a law school.
Wizner’s answer is that ‘a law school is a professional school for the education and
training of lawyers.’
The basic assumption in this definition is that ‘education’ is not the same as
‘training’ and it is easy to conflate these pedagogical terms in a law school.
Legal education is necessarily theoretical; legal training ought to be clinical.
That then is the formulation that Stephen Wizner will make a compelling case for
and we find that in his definition of a law school itself.
Wizner accords equal importance to theory and practice in his definition.
If it is so easy to get the definition right, then, why is there ‘such widespread
dissatisfaction with the state of legal education’ in the United States?
Why is the community of law schools not going along with this simple definition?
The answer is that there is a fundamental ‘disjunction’ between legal theory and
legal practice in American law schools.
It is difficult to harmonize these two approaches in the way that is envisaged in
Stephen Wizner’s definition since faculty are interested in the former and students
are interested in the latter.
Unlike graduate schools in the arts and sciences where students aspire to be like
their faculty advisors, students in law schools do not look forward to becoming law
professors in large numbers.
Even in law schools as selective as Yale, only a small percentage (estimated to be 8.4
percent of the total law school graduates from YLS) teach law for a living in a law
school (Balkin and Levinson, 2006).
It can be quite disconcerting for faculty to train students in the law when they do not want to
be like the students and the students do not want to be like them.

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The lack of a professional identification between faculty and students is not the only
concern. There are a few others as well.
They include the following:
Law schools have both educational and social ‘obligations’ to fulfil which they are
not going to be able to do unless students share the same or at least similar
pedagogical ideals as their faculty.
Legal education is not able to further the delivery of justice to indigent litigants. It is
not able to persuade law students to seek a career in public law which pays less than
private law.
The research done by faculty is intellectually stimulating but not related to the needs
of legal practitioners. Faculty who do research with the aims of practice in mind and
who write for lawyers and judges will not necessarily do well in law schools.
These then are some - though not all - of the reasons for the split between theory and
practice in law schools.
There is also a periodic critique of how law schools function by educational
administrators and members of the judiciary themselves.
The best known instances of such critiques include those of Derek Bok, the former
President of Harvard, in 1983 and Judge Harry Edwards who accused law school
faculty in 1988 of performing for each other rather than for the legal community as a
whole.
The downside of this split between legal theory and legal practice is that it leads to a
legal system that can neither boast of a ‘public-interest bar’ nor adequate ‘public-
funding’ for legal services.
What this means is that the legal talent available will mainly be deployed in the
private sector. Given the cost of a law school education, there will be no incentive for
law school graduates to do anything for the public sector and those who need legal
representation.
This will also ensure that most lawyers will wind up as ‘hired-guns’ sooner or later.
The practice of law itself has become just another business with no essential
relationship or concern with questions of how to do justice to litigants. Pro-bono
work is not recognized in the way that billable hours are within the economics of a
law firm.

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While it is true that change for the better does happen, it does not happen in a way
that can build positive synergies with legal education or make it more affordable for
those who are willing to work in the public sector in lieu of paying back educational
loans to attend law school.
The fallout of such a system affects the administration of both civil law and criminal
law and leads to disaffection amongst young people who go to law school.
While this problem has been diagnosed before and sporadic attempts are made to
alleviate the situation, the situation repeats itself for one cohort of law students after
another due to the rising costs of legal education.
What Stephen Wizner wants really is something akin to the positive relationship
between law schools, law faculty, law students, and the legal system when the Civil
Rights Act of 1964 was being implemented in American society.
Another such instance might be the de-segregation of the public school system in the
United States following the Brown decisions of 1954 and 1955 by the U. S. Supreme
Court.
These then are specific instances of social reform mediated through the law when
there was healthy give-and-take between legal theory, legal policy, and the practice
of law.
It made law school graduates feel that they were a part of something larger than
themselves since they were doing nothing less than changing society for the better.
In the absence of such change efforts in the context of public law, it is easy for law
school graduates to get disillusioned with the practice of law and find that they are
not sufficiently energized to teach law either since they do not have any legal reform
programs that they can sell to the next generation.
That then, according to Stephen Weizner, is the ‘problem.’
What is the solution?
The solution, he argues, is to differentiate as Jerome Frank did between ‘law’ schools
and ‘lawyer’ schools.
The excessive preoccupation with the case method is both the blessing and the bane
of law schools. While it does a good job of teaching students to ‘think’ like a lawyer,
it does not teach them how to become or ‘be’ like lawyers.
Stephen Weizner’s preoccupation with clinical legal programs then is an attempt to remedy
this situation.

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Weizner’s point is that Jerome Frank had already described the problem correctly in
1933 and 1947. All that is required is to have the courage to implement his
suggestions for improvement.
Weizner is not saying that law schools should disregard the case method; his point is
that they should supplement it with clinical programs in legal practice because the law
is not reducible to casebooks.
The law is what emerges through the confrontation between the parties to a dispute
in an adversarial system: ‘the bottom line of the law is that one has a legal right if
one wins the case and a legal duty if one loses.’
The suggestions made by Jerome Frank require that law courses should be team-
taught by academics and legal practitioners.
In other words, the gap between theory and practice should be sutured more
effectively. As Jerome Frank puts it, ‘practices unavoidably blossom into theories,
and most theories induce practices, good or bad.’
This means that law students should get more clinical exposure to lawyers, courts,
and judges. Furthermore when cases are used, what is required is not the number of
cases taught in class, but how deeply they are read.
So, instead of reading only the appellate opinion, Jerome Frank argues that students
must be made to read ‘all of the papers and pleadings of a few cases.’
This in-depth approach is more likely to give them a feel for how to ‘become’ a
lawyer rather than learn to merely ‘think’ like a lawyer.
Jerome Frank argues that the case method in medical schools already resembles the
model that he has in mind.
Just as medical schools have ‘dispensaries,’ where doctors-in-clinical-training see
patients, so should law schools; these ‘legal dispensaries’ can draw their clients from
‘the indigent, government agencies, legislative committees, and public interest
groups.’
Becoming a lawyer means learning a number of additional skills as well.
They include learning how to manage a client; developing a feel for advocacy;
internalizing the protocols of legal drafting; getting acquainted with a sense of
professional responsibility; and learning how to define the scope of legal
interventions effectively. And, finally, it also involves learning to represent the under-
represented in the legal system.

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That is why Stephen Wizner supports and directs clinical programs in law schools.
In order to ensure that this facility of a legal dispensary is made available in as many
law schools as possible, he not only describes the history of legal theory and legal
education that made a case for such clinical programs, but also the sources from
which funding was made available.
These sources of funding include the Ford Foundation and the Council on Legal
Education for Professional Responsibility.
What these clinical programs in law schools do is to teach students how the law
actually works and how they must manage stakeholders to make a difference in the
world.
This means that they must think in terms of real clients and not of clients as
characters in a case analysis.
The main advantage in supplementing the case method with clinical programs then
is that it forces law students to take legal responsibility for what happens to a client.
So it is a lot more difficult to pull off than a case analysis where students don’t have
to take responsibility for cases that have already been decided.
Doing this could lead to a greater appreciation for what clients are going through; it
cultivates a sense of social responsibility in them as well when they eventually
graduate from law school.
While Stephen Wizner does a good job of explaining how clinical legal programs
work, he does not address how law school students will pay for law school and
whether the funding for these programs will reduce the tuition fees that students
who represent clients will have to pay in their law schools.
A clinical legal program, in other words, must benefit not just the client but must
have some positive implication for the cost of legal education for student-lawyers as
well.
Only then will they be able to pay for their education and get on with the forms of
public service that is sought for in these programs.
If that is not the case then students will revert back to form on graduation and
decline the chance to serve in the public realm.
That then is the actual problem since there is no lack of students who are idealistic
enough to give these clinical programs a fair shot.

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While Stephen Wizner does not pretend that he has all the answers, these essays – if
read in tandem – at least clearly describe the situation, the problem, and the possible
solutions in a way that will energize law students and members of the legal
fraternity.
REFERENCES
Balkin, Jack M. and Sanford Levinson (2006). ‘Law and the Humanities: An Uneasy
Relationship,’ Yale Journal of Law and Humanities, Vol. 18, p. 173.
SHIVA KUMAR SRINIVASAN