Article Title

Of Theory and Practice


Tamar Frankel


Much has been written about theory and practice in the law, and the tension between practitioners and theorists. Judges do not cite theoretical articles often; they rarely "apply" theories to particular cases. These arguments are not revisited. Instead the Article explores the working and interaction of theory and practice, practitioners and theorists. This Article starts with a story about solving a legal issue using our intellectual tools—theory, practice, and their progenies: experience and "gut." Next the Article elaborates on the nature of theory, practice, experience and gut. The third part of the Article discusses theories that are helpful to practitioners and those that are less helpful. The Article concludes that practitioners theorize, and theorists practice. They use these intellectual tools differently because the goals and orientations of theorists and practitioners, and the constraints under which they act, differ. Theory, practice, experience and gut help us think, remember, decide and create. They complement each other like the two sides of the same coin: distinct but inseparable.

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