2026-09-01
One of the strange features of legal education is that many law professors, whose job is ostensibly to instruct the next generation of practicing lawyers, in fact have little to no experience in the practice of law. The standard path for a law professor is something like: good law school (Harvard, Yale, Stanford, Chicago) > clerkship for a year or two > legal academia. Certainly, this is not a reliable rule, and a meaningful percentage of professors (especially in more practical areas) have practiced for many years. But a surprising and amusing number of professors who will wax poetic about the practice of law have, at best, a passing familiarity with it.
This seems troubling in a way that having a physics professor who has not left academia does not. My intuition is that (a) the most challenging and interesting problems in physics are concentrated in academia and in a limited number of academia-shaped institutions, (b) the “practice of physics” is largely or entirely captured by academic physics, and (c) it is relatively easy to model physics ability through academia-amenable proxies.
The challenge with the law is that the most interesting legal questions are generated at the margins, through the interaction of parties in the real world and in the legal overlay. In situations where those marginal questions are available to the world (such as in appellate law), there tends to be healthy academic coverage. In other words, there is a good flow of data by which our sequestered academics can learn. But in many meaningful areas of the law, particularly financial-regulatory issues, entities have confidential problems and confidential interactions with regulators that shape confidential private ordering behavior. The system is built to be illegible to external interlopers, because in finance legibility has a tendency to destroy value. The result is that, for external observers, it’s extremely difficult to get a hold of any meaningful signal on how things actually work, and often legal academics appear shockingly unaware of what they don’t know. Accordingly, the legal-academic complex is shockingly over-indexed on public institutions of law (courts, legislative bodies, regulators), and under-indexed on private ordering.
But private ordering, it turns out, is a meaningful and significant area of the law. The vast majority of behavior takes place in the shadow of the law, and although public law gets you some of the way there, it’s insufficient. There are very significant and meaningful private non-law orderings (or means of policy transmission through non-state channels) that are not captured by law alone, and similarly in many cases the textual law (statute, reg, contract) is parameterized by a commercial context that is not deductible from the outside. This is why financial policy rightly defers a great deal of decision-making to the actual market participants via SROs.
Is there a solution to this? Not a particularly clear one, but maybe we have more mechanisms for private, anonymized disclosure in some meaningful way. It’s hard to see how this would be possible without destroying private alpha, but perhaps encouraging further collaboration with industry is a good start (this is already how the best papers are written). Hiring practicing lawyers for academic projects is a good idea too…