“Those who can’t do, teach” is a widely quoted phrase from popular wisdom. It stems from the belief that professionals who would have otherwise been a failure in their respective fields, wind up being professors. It is said as a critique to teachers who have no field experience and teach from a purely theoretical standpoint. But would a scholar who actually has professional experience be the silver bullet?
In other words, is it really desirable, particularly in the legal field, to have as a teacher someone who is gaining recognition in the academic world while at the same time defending private interests in court and thus directly affecting (to a certain extent) the law making process?
The first question we have to ask ourselves in order to answer the interrogations above is how influential are scholarly works when it comes to law making?
If there is one thing the main legal families (namely Common Law and Civil Law) agree on, is the feeble position of juristic writings as a source of law. While this is true, one cannot deny the influential role of legal literature. In this sense, let us not forget that Article 38 of the International Court of Justice’s statute proposes “the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law”. In plain English, that means a judge X from the ICJ can grab from his office library, let’s say, Malcolm Shaw’s International Law and perfectly draw legal rules from there. Shaw is a practicing barrister. Now, this is a bad example because International Law conflicts and private parties’ interests would rarely cross.
Let’s try a better example. It could happen that a judge in the United States has a complicated first impression case to decide on Patent Law, an area that has become increasingly chaotic. He is more limited in his decision than our ICJ judge, but he can definitely consult a book or two for inspiration. So he decides to take a look at treatise written by Poltorak, who is an IP Law scholar and by the way not even a lawyer, but who happens to be the founder of a patent licensing and enforcement firm. Whether his ideas are self-interested or correct is irrelevant at this point. The fact is that legal scholars could potentially have great influence in the emergence of new legal interpretations, while at the same time having the chance to tilt the scale in favor of their clients’ interest or their own. Seriously, every time I read an article by a lawyer stating that a Patent Troll is a term impossible to define, all I can think is “he obviously works for one”. It would probably be safe to assume that if a patent law scholar were to have so-called patent trolls as clients, he would then be inclined to support a severer patent system with regards to infringements as opposed to a lawyer who defends small companies who are usually the victims of such trolling.
This situation could worsen in the case of small developing countries where corruption and network effects are even higher. The influence that could be exerted by a prominent lawyer who teaches at universities but maintains his clientele whom he defends at court is thus greater. He would seem almost irresistible in the eyes of a magistrate.
So even if the judge would act in good faith when deciding a case, could he find himself seduced by the ideas and prestige that surrounds said attorney? From my work experience as a civil litigation attorney in my country, I believe it is certainly possible.
At the end of the day, it is probably true that scholars with professional experience are better prepared to teach. But it is only by drawing attention to this potential issue that we can make sure that neither the students nor the judges are persuaded by an idea without knowing the other side of the story, or at least where the transmitter is coming from.