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Saturday, September 10, 2005

Do You Need a PhD to Do Competent and Cutting Edge Legal Interdisciplinary Work?

Brian Leiter writes:

[T]hings have now gotten to the point that almost no one, not even someone with an excellent JD, can do competent, cutting edge work in interdisciplinary areas like law and economics, or law and philosophy, or law and psychology.  In those cases, the PhD training is essential. 

I strongly disagree.  While PhD training can be immensely useful -- I often wish I had such training -- I think Leiter overstates the case that it is "essential" to do competent cutting edge interdisciplinary work.  Leiter’s statement appears to rest on the assumption that one needs a PhD in order to understand and write in certain fields, such as economics, philosophy, or psychology.  With all due respect, I believe that it is possible to understand and write about philosophy and other disciplines without a PhD. 

1. Leiter’s statement appears to assume a strong distinction between interdisciplinary legal scholarship and legal scholarship more generally.  I wonder whether such a distinction is valid.  I believe that law is inherently interdisciplinary.  What exactly is non-interdisciplinary legal scholarship?  Law has internalized philosophy, economics, and other fields.  Is there such as thing as “pure” law?  Given that the study of law is inextricably immersed in other disciplines, I doubt one can be an “excellent JD” without having had some background in other disciplines.

2. The idea that a person without a PhD can do competent cutting edge work in law and philosophy, law and economics, etc. strikes me as facially false.  Having a PhD is not a sufficient condition for writing good “interdisciplinary” legal scholarship – people with PhDs can write crap with the best of them.  Having a PhD is not a necessary condition either.  The issue isn’t whether a person has PhD training, but whether somebody is sufficiently immersed in the literature to engage in the debate.  The most important criteria for good legal scholarship is whether the scholar has a good background in the relevant texts of the discipline and is an excellent thinker, not what credential that person may hold.  Under Leiter’s view, can Judge Richard Posner and Judge Guido Calabresi make “competent” and “cutting edge” contributions to law and economics today?

Posted by Daniel Solove on September 10, 2005 at 07:32 PM in Daniel Solove, Life of Law Schools | Permalink

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Comments

I didn't say having a PhD is sufficient for doing good interdisciplinary work these days, I said it is necessary. The credential is a proxy for the training and competence necessary; it is possible for someone to have it without the formal training, but extremely rare. Posner and Calabresi no longer make cutting-edge contributions to law and economics--my lawyer/economist friends put this in terms of the change from first-generation to second-generation law and economics. My view about the importance of formal training is based on the empirical evidence: e.g., the large number of JDs purporting to write about philosophical topics whose work is incompetent and sophomoric.

This, by the way, is not to deny that there are JDs who draw usefully on economic and philosophical insights in their scholarship; the claim concerns what is needed to actually advance the interdisciplinary sub-specialties. I stand by the claim, based on the evidence before us in the law journals, that those who do the latter now have appropriate graduate training in the cognate discipline.

Posted by: BL | Sep 10, 2005 7:47:28 PM

The other side of this coin is that people with PhDs in fields like philosophy may not be doing either very good law or very good philosophy. (The same is probably true for economics, less likely for history.) If their work is being published in law reviews, if they are not working within and subject to all of the rigors and controls of being fulltime in a philosophy department, and if their work involves novel and complex applications from PhD training to legal issues, there are few checks on whether what they are doing is any good. Moreover, a good many PhDs ended up in law school because they couldn't get teaching jobs in their graduate field--and wouldn't be hired today by those departments with the PhD and J.D. Having a PhD might in the end be more a liability than an asset.

Posted by: D.B. | Sep 10, 2005 9:03:35 PM

God bles academic lawyers. What would we do without them? We would have to move to a jurisdiction which allowed taking the bar exam after a clerkship in a lawyer's office without benefit of law school. Florida was one in my youth -- I do not know if it still the case. To be fair, there is precedent in practical law for Dr. Leiter's position -- to be a patent attorney licensed before the patent office you need a technical background. But otherwise, the idea that there is "cutting-edge work" in law outside of a courtroom is laughable. All the law review articles in the world are worth ... ? As a practical matter, lawyers hire experts in other fields and need only to understand them well enough to argue their testimony credibly to the judge and jury. Case in point, O. J. Simpson's murder trial. Oh well, to paraphrase Dr. Leiter's favorite philosopher: If all the animals in the world were to gather to elect the king of beasts, the eagle would argue for the one the flies the highest and the worm would argue for the one that burrows the most. As someone frequently accused of overarguing his cases, I cannot resist: Which U.S. Supreme Court Justice has a Ph.D. after his or her name?

Posted by: nk | Sep 10, 2005 9:49:30 PM

What D.B. says is no doubt correct, but wasn't the topic of our discussion. One can, to some extent, gauge whether JD/PhDs are up-to-speed in the cognate discipline by where they publish: e.g., exclusively the student-edited law reviews, or also the peer-edited journals in the cognate discipline?

The comments of NK are simply stupid, and suggest that the moderators of PrawfsBlog need to start enforcing some standards! Someone who thinks legal scholarship is worthless if not applicable in court is plainly not a party to this discussion.

Posted by: BL | Sep 10, 2005 9:59:57 PM

I do think there is something to this. One of the things I found frustrating both as a law student and now as a faculty member is that non-PhDs have difficulty thinking "acaedmically," i.e., grasping the structure of debates going on in various fields. Legal thinking without social science can be a pretty barren place and I think one of the continuing problems for law schools is their isolation from other departments. A larger number of JD/Ph.Ds in teaching would help this tremendously. There is a related problem in interactions with law students who often seem unwilling to take on anything more than the minimum required reading (and not just at second tier schools). I was shocked when I set up my first seminar reading lists at the push back I got from students for a reading load that would have been considered moderate in any PhD program.

Posted by: Stephen Diamond | Sep 10, 2005 10:14:46 PM

I have made much more provocative comments on this blog and not been banned yet, Dr. Leiter. I suppose my "laughable" provoked your "stupid". I will not take it further. It is a big legal community (I am told that America has more lawyers per capita than any other country in the world) and you are likely to come up against all kinds of opinions. To again quote your favorite philosopher: "Laugh!"

Posted by: nk | Sep 10, 2005 10:23:56 PM

I suspect that part of this debate reflects the natural tendency of individuals to see their own training and experience as particularly exemplary: those Ph.D.s will tend to see them as more important than those without. With that said, I think there is a softer version of Brian's point that we can all agree on: it amounts to a plea to generalists to *please* think twice before picking up one or two articles in psychology or economics and then writing a law review article about it. No one (other than the articles editors, natch) is fooled by that game.

Posted by: top20lawprof | Sep 10, 2005 11:55:11 PM

Good points all around (even nk -- although he/she is being flippant, lawyers do as a class tend to overestimate their impact on and ability to master areas outside their field). Like Dan, I bristle at the idea that possession of some piece of paper is a necessary condition to producing cutting-edge interdisciplinary scholarship. I studied philosophy extensively in college (more extensively than most undergraduates, I think) and have a master's in history, and (keeping the nk caveat in mind) I think I have a handle on what scholarship in each of those fields requires. However, I think a weaker form of Brian's thesis is correct: mastering even just one discipline (or even one area within one discipline) is hard enough; mastering two is enormously time-intensive. Someone who has not dedicated several years of their life solely to studying that second area is unlikely to have picked up enough to be more than a mere dilettante. That said, I think nevertheless (a) there are such people (indeed, I hope to be one); and (b) dilettantism itself can be a useful and productive endeavor.

Posted by: Bruce | Sep 10, 2005 11:58:23 PM

Bruce,

I am a "he", 49 years old, 23 years a lawyer, with a wife and daughter, and blogging for fun.

Posted by: nk | Sep 11, 2005 12:47:50 AM

Here's a question, mainly directed at Brian Leiter, but also for anyone else who is skeptical of interdisciplinary law work done by JDs without graduate training in the cognate discipline: what's so special about law?

Many of those cognate disciplines themselves, after all, have some interdisciplinary components to them. Does an economist who wants to rely on psychological insights need to have a PhD in psychology? Does a philosopher of mind who wants to rely on neurobiological research have to have a PhD in biology or neuroscience?

Posted by: Paul Gowder | Sep 11, 2005 1:35:06 AM

In response to Brian Leiter, I assume that at best Brian can make a claim about philosophy but not other fields. Since he lacks a PhD in other disciplines, I take it that he cannot make much of a claim beyond philosophy -- unless he claims that one doesn't need a PhD to properly evaluate whether scholarship makes a cutting edge contribution to a particular field. And if he were to make this claim, then it would strike me as odd how one could be a good evaluator of whether something makes a cutting edge contribution but lack the knowledge to make such a contribution oneself. So at best, Brian is attempting to make an empirical claim about philosophy, but that claim rests on faulty logic. He writes in reply to my post: "My view about the importance of formal training is based on the empirical evidence: e.g., the large number of JDs purporting to write about philosophical topics whose work is incompetent and sophomoric." But this doesn't logically support his claim that "not even someone with an excellent JD, can do competent, cutting edge work in interdisciplinary areas." That many JDs don't write about philosophy well doesn't indicate that JDs cannot do so – or even that it is “very rare.” Moreover, that many law profs with JDs don’t write about philosophy well doesn’t indicate that those with PhDs are writing anything worthwhile.

I'm also unclear on what Brian means by "advanc[ing] the interdisciplinary sub-specialties." What does it mean to "advance" a particular field? Brian distinguishes between drawing from other fields and advancing them. But since the law is infused with so many aspects of other disciplines, why can't an intelligent and thoughtful analysis of the law advance other fields? Leiter's claim is based on an assumption of what doing "philosophy" or "history" or "economics" constitutes. But who exactly determines what doing these things constitutes? For example, there are disputes among philosophers about what constitutes "philosophy." Brian's "empirical evidence" about the “importance of formal training” is far from empirical. It is based on his normative conception of what the study of law constitutes and of what the study of philosophy constitutes. It involves a conception of the relationship between law and philosophy. Law could be understood, for example, as a branch of philosophy. Or it could be understood as something entirely separate upon which philosophy operates. Anyway, my goal is not to get into a debate over what philosophy is; my goal is to point out that Brian is basing his claim upon a particular normative conception of different fields and their relationships to each other, a conception that is highly contested.


Posted by: Daniel Solove | Sep 11, 2005 1:43:17 AM

Also, another concern that might be raised in terms of interdisciplinary work is whether "necessarily simplified to reach a cross-disciplinary audience" is equivalent to "incompetent and sophomoric." For example, a JD attempting to apply various difficult philosophical ideas (say Heideggerian perhaps, or Kantian, just to pick two that are close to my heart) to law might well have to elide some points here and there or make broad generalizations (not changing the result of the argument) in order to make the resulting piece both comprehensible to a legal audience and reasonably short. If a philosopher read the same piece, might (s)he unfairly lump it in the "incompetent and sophomoric" category?

Posted by: Paul Gowder | Sep 11, 2005 1:43:23 AM

Paul, speaking for myself at least, I don't believe law differs much from other fields in this regard. Some of the same issues raised here came up in history, at least back when I did it, when historians attempted to borrow insights from, e.g., anthropology. The only difference (and this is what I keep referring to as the "nk caveat") is that lawyers seem, on the whole, to have a greater faith in their ability to master other disciplines; probably in part because it is a part of any practicing lawyer's job to understand the business or problems of their clients.

I note that Brian in his post above seems to have a fairly narrow definition of interdisciplinary work; it sounds as though he distinguishes between a scholar in one field "borrowing insights" from a second, but clearly subsidiary, field -- which I think is what most "interdisciplinary" stuff does -- and work that "actually advance[s] the interdisciplinary sub-specialties" -- by which I take him to mean work that contributes to both fields at the same time. That would be truly difficult, I think, for most pairs of fields, and not just because of the amount of time needed to master both, but because what qualifies as "scholarship" in each field is going to look somewhat different. It appears Brian may have in mind a small subset of interdisciplinary works in sub-specialties that already cross between two disciplines by their very nature -- e.g., philosophy of law. But even just sticking with philosophy and law as an example, I think it would be nearly impossible, no matter how many degrees one has, to write something an article on, say, free will and the insanity defense, that could get published in both the Yale Law Journal and Mind. If that's what counts as "interdisciplinary work," I'm actually not sure if it even exists.

Posted by: Bruce | Sep 11, 2005 2:01:03 AM


I am neither a lawyer nor a philosopher, but, with
due respect I do find it interesting that Prof Leiter
dismisses statements as "stupid" so easily, given that
he is a scholar. I think nk's statements (or rather
questions) could use answering a little less cavalierly.

This debate about the necessity of a Ph.D is also, to
my mind, a little pointless. I think work should be judged
on its merits and not by the degrees that the contributor
holds. Most academic work, even by specialists in a field,
and even that done by the best people in it, is often
routine and quite pedestrian. At this level, it is hard
to make the argument that Prof Leiter makes. However,
on occasion, the successful academics in a field come up
with new ideas that distinguish their contributions. It
is unreasonable to believe that only people with Ph.D's
in that particular speciality are capable of such work.
In my experience, the areas I work in (the sciences)
often benefit from insights brought in by people who
are relative outsiders to the field. I believe that a
little dilletantism does not hurt anyone. Additionally,
a little adventurousness in one's work often leads to
fresh new ways of looking at old and familiar problems.

Posted by: v | Sep 11, 2005 2:56:18 AM

In something like reverse order:

Re: V: Because I am a scholar, whose business is arguments, I call stupid arguments what they are, namely "stupid," and not something else. In a discussion of whether high quality interdisciplinary work requires formal training in the cognate discipline, the interjection that no legal scholarship is worthwhile unless applicable in court is neither here nor there. It is a different debate, which others have had, even in the pages of the law reviews, but it is unrelated to any topic being discussed here, and is just an opportunity for a practicing lawyer to express his anti-intellectualism.

Re: Daniel's lengthy reply: One can justify a claim either by appeal to what one knows and has evidence for or by appeal to the judgments of qualified experts; obviously my view about work in law and philosophy is of the former kind, my view about work in, for example, law and economics, of the latter kind. It will be easier to show that the second kind of justification is faulty by adducing qualified experts who dispute it, though, to the best of my knowledge, we have heard from none here.

What Daniel calls the "faulty logic" of my generalization based on a sample is not faulty logic at all, unless one thinks all inductive inferences are unjustified, which, to be sure, some (e.g., Popper) have thought. I would hope we don't have to solve the problem of induction to observe that with a rare exception purportedly philosophical writing by JDs in the law reviews over, say, the last decade has been of an extremely poor quality, and that this might be rather good evidence that if you want someone doing very good work in law and philosophy, you had better look for more than the JD by way of formal training. We can, of course, supplement the empirical observation with an explanation for the observed phenomenon (e.g., why it is someone with a JD would make the kinds of mistakes that we observe) that would support the thought that if you're hiring a jurisprudent you had better hire a JD/PhD in philosophy if you want someone competent.

I would assume we would look to philosophers and economists, for example, to figure out what philosophy and economics involve. Those understandings are transitory, of course, and may evolve radically over time, but that is neither here nor there: I am only making a claim about the here and now. There are also no disputes among philosophers in the here-and-now about what philosophy is that have any bearing on the point I am making (Daniel cites none, of course, referring only in the abstract to the possibility of such "contested" claims about philosophy). I have no idea what it means to say "law could be understood...as a branch of philosophy," unless the point is that one can stipulate anything to mean anything, which, of course, is true, but then I'm not sure how it is relevant. Since the debate here is fundamentally an evaluative one, it is, of course, true that it has a normative component; that is quite compatible with it having an empirical component too, e.g., the interdisciplinary work actually done, the empirical data which is then to be subjected to evaluation. (The other kind of evidence I'm going on, by the way, comes from years of doing appointments, and looking at the work of candidates with JDs who purported to be doing work of a jurisprudential nature.)

Paul's "what's so special about law" question is an interesting one, and may get to the heart of the matter. As Paul observes, there are, e.g., lots of philosophers these days who make massive use of, e.g., psychology, and, indeed, some of them even conduct psychological experiments. Almost all who do so do so without the benefit of a PhD in the cognate discipline. At the same time, most of them do so at a very high level of skill, so much so, that they are often cross-appointed in the relevant departments, publish in the journals of the cognate discipline, and are read and cited by scholars in the cognate discipline. Why do philosophers (without an additional PhD) traverse psychology, linguistics, biology, and physics so much more successfully than lawyers (without any PhD) do? My guess would be this: PhD training in philosophy (and many other fields, of course) is scholarly training, and many of the skills developed and nurtured in such training make for successfuly interdisciplinary engagements; JD training, by contrast, is not scholarly training, and the skills developed and nurtured (and in a much shorter period of time to boot) are not those sufficient in general for effective engagement with disciplines that require a very different kind of course of study. That, in any case, is my guess. It would be interesting to hear from PhD economists or psychologists on this point, especially if they are also JDs.

Re: Bruce: it would be tough, indeed, to write an article that could appear in both the Yale Law Journal and Mind, or some other top philosophy journal, but that has more to do, I suspect, with stylistic conventions of these differeing fora. What is common are folks who publish in both the top law reviews and the top philosophy journals. The only one who does this regularly who doesn't have both the JD and PhD is my former colleague Larry Alexander (Fred Schauer has done it irregularly as well); the others who do this with reasonable frequency who come to mind are JD/PhDs.

Posted by: BL | Sep 11, 2005 9:19:51 AM

Daniel, would you please cross-post the part of the above that is my response to you over at Balkinization? Thanks.

Posted by: BL | Sep 11, 2005 9:23:04 AM

In partial response to Paul's first comment above I'll repeat something I'd said over on Balkin's site, which is that this isn't limited to law. More and more, for example, to do top work in, say, philosophy of science one needs significant background in a science. You don't usually see dual PhD's here (though there are a few) but you do see lots of people doing an MA in in the science they are interestred in, or spending a significant time in a lab, often in the form of a post-doc or two after finishing a philosophy PhD. This also fits with an increase in collaberative work between people in two fields. I can talk about philosophy better than other areas but 1) I'd be surprised if philosophy was so different and 2) my casual discussions with people in other fields seems to indicate much the same. This bit isn't directed at Paul, but it also seems uncharitable to read Leiter to say it's impossible to do cutting-edge interdisciplinary work w/o a PhD- there might well be a young Ronald Dworkin out there ready to make important contributions, after all, but it does seem unlikely, and it's probably irrational to think of one's self as the exception rather than the rule here. Especially at the junior level it would almost certainly be irrational for a hiring committe to think a candidate was the exception.

Posted by: Matt | Sep 11, 2005 9:30:57 AM

I completely agree with Brian -- at least for the law-econ crowd.

A formal Ph.D. is not necessary (most law-econ people are not obsessed with formal credentials), but a serious Ph.D.-level training, or substantial knowledge on a similar advanced scale acquired through other means, is necessary. You can't do serious law-econ work today without either really, really knowing math, or really really knowing statistics, or really really knowing micro.

If you can’t do serious regressions, you must model. If you can’t model, you must do serious regressions. If you make the tiniest noise about “excessive fees” or “bargaining power,” be prepared to either model them in excruciating detail or show original data. Chatter on a vague subject of “markets” and “efficiency” is basically ignored.

People who tell you otherwise are, hmm, not quite the laughing stock of the field, but asymptotically approaching that status. They are in their last years of wishful thinking. Just take a look at the papers from the annual meeting of the American Law and Economics Association.

Posted by: Kate Litvak | Sep 11, 2005 12:51:40 PM

I am not a Ph.D. in philosophy, but I play one on this blog. :-) Brian seems to be making at least the following 2 claims:

1) The quality of interdisciplinary work about law and some other discipline from persons who lacks a Ph.D. in the other discipline is almost always poor.

2) The quality of scholarly work in general from someone who has a Ph.D. is almost always greater than from someone who has only a J.D.

(1) is probably true, for two reasons, one trivial, and another more profound. First, most interdisciplinary work from persons who lack Ph.D's is poor because most scholarly work is poor, as v observed. Second, and more substantively, as top20lawprof pointed out above, most interdisciplinary work is poor because it is a common mistake in such works to underestimate what one needs to know to avoid making major errors in the second field. Someone who has received a Ph.D. is much less likely to make such a mistake. (2) is also probably true, for similar reasons. Someone who has invested, in most cases, 5 years or more in gaining a Ph.D., including writing and defending a dissertation, is more likely than someone who studied law for three years, and who has not researched, written, or defended any work of comparable length and complexity, to be a more rigorous scholar. There's no escaping that law schools are primarily producers of lawyers, and only secondarily (if at all) producers of professors.

At times, however, (including in the post that generated this discussion) Brian seems to be arguing for a stronger proposition than (1) or (2):

3) Someone who attempts to produce interdisciplinary work but has not undergone the training necessary to get a Ph.D. is unlikely to produce good interdisciplinary work.

I don't understand Brian to be arguing that (3) is true simply because of the poor quality of scholarship generally from J.D.'s, or because of overconfidence in borrowing. (If either of those is his claim, then (3) simply collapses onto (1) or (2), both of which strike me as non-controversial.) So I think Brian may be making an even stronger claim:

3') Someone who produces *good legal scholarship* and who attempts to produce interdisciplinary work but has not undergone the training necessary to get a Ph.D. is unlikely to produce good interdisciplinary work.

Brian's evidence for (3') is unclear, partly because his definition of "interdisciplinary work" is unclear. Brian agrees with me that it is not necessarily work that could get published, without alterations, in both the top legal and X-discipline journals. Rather, he points to those who publish separate articles in both fields, and observes that most such people he is aware of possess both J.D.'s and Ph.D.'s.

That's an interesting observation, but it does not support (3'), unless "interdisciplinary work" is defined to mean "arbitrarily grouped pairs of articles that are published in the top journals of two different fields." I don't think that's how most people define "interdisciplinary work" however. I believe a more common definition, for journal articles at least, would be "an article published by a leading journal in one field that borrows insights appropriately from another field." (Of course, a lot of work in this definition is being done by "appropriately" -- but my point for the time being is that, even if we agree on the meaning of "appropriately," the definition includes works that are primarily in one field, and only subsidiarily in another.) Adding this element to (3') yields:

3'') Someone who produces good legal scholarship and who attempts to produce interdisciplinary work but who has not undergone the training necessary to get a Ph.D. is unlikely to produce articles that borrow appropriately from other fields.

In order to evaluate (3''), I think we need to define "appropriately." But keeping in mind that we're limiting the set under consideration to those who produce good *legal* scholarship, (3'') does not strike me as obviously true.

Posted by: Bruce | Sep 11, 2005 1:24:52 PM

This is, of course, a touchy subject, but I want to cast my vote with with Brian re the field of legal history. Sure, it's possible to do good legal history without both a JD and a PhD, and some folks do it. But much more good legal history is done by folks with both.

Having a piece of paper with a degree doesn't make you smarter. People with PhDs aren't smarter than people with JDs. But PhD programs involve sustained training (6-8 years, typically in history) in the methods, theories, and acculumated substantive knowledge of a field. It involves producing a sizable piece of original work in the field. It is very hard to substitute for that effectively.

I would never say "PhD" always equals "good work." But my experiences in history and law lead me echo -- strongly -- the folks that say that legal scholars, more so than folks in other fields I've met -- seem to think that being smart will allow them to get up to speed relatively easily in other fields. And at least usually, that just ain't so.

Posted by: Joseph Slater | Sep 11, 2005 1:26:53 PM

I apologize for hoarding this thread, but another thought just struck me: the discussion we're having here, and that Brian and Dan started, is not legal or philosophical (despite my attempt above), but sociological. I.e., we're talking about certain populations, and attempting to compare the characteristics of one population to another. In my post above, I attempt to control for certain variables. I don't have a Ph.D. in sociology, and I don't think Brian or Dan does either. Does that mean no one should waste their time reading this thread? (I suppose the most obvious retort would be that this thread is not "scholarship." But is it nevertheless worth reading? Why?)

Posted by: Bruce | Sep 11, 2005 1:41:24 PM

I want to largely agree with with what Kate and Brian say in the area of law and econ, but question an apparent assumption in the argument. I think it's very hard for someone without Ph.D.-level training in economics to seriously contribute to the boundaries of law and economics today--serious work, as Kate says, does involve either mathematical modeling or econometric empirical work, and it is very hard to do that well without the training. It's not so easy to do it well even with the training, for that matter--I have no econometric skill at all, and quite mundane modeling skills, despite receiving a Ph.D. from a top program. That's one reason I left economics for law (I'll get to the other momentarily). (This is not meant to malign my teachers; they did what they could with the material given them.)

What those with just a J.D. can do is act as an informed consumer of other fields, using economics to help shape their legal scholarship. Even that is hard to do well, though, perhaps particularly with economics. Economics today is so mathematical that it is very hard to read it intelligently without a Ph.D. Indeed, one reason I decided to do a Ph.D. in economics rather than philosophy is because I felt that my undergraduate education prepared me to read the philosophy that interests me with enough understanding for my purposes--not enough to produce philosophy myself, mind you, just enough to inform my thinking. I didn't think that was true for economics. (Fire away, Brian.)

The apparent assumption behind much of the argument is that economics (or philosophy, or pick your field) is on average more valuable scholarship than law. I'm not sure at all that I agree on the law/economics comparison (I'm not qualified to speak to other fields). The mathematization of economics was justified by the claim that it would make the field into a science, more or less like the natural sciences. I think that project has failed miserably so far, and shows little hope of success in the foreseeable future. As Brian Leiter has argued elsewhere, I seem to recall, there are very few propositions in economics that are both non-obvious and well-established empirically. As George Stigler pointed out decades ago, any competent user of economic theory can come up with a respectable model to support pretty much any non-laughable economic proposition you want. I think Stigler (and if not him, then certainly many others) hoped that econometrics would help us choose definitively among the theoretical possibilities, but the data and the methodology are almost always just far too weak to do the job. Econometrics and formal modeling have their virtues, but they are far more modest than most economists would like to believe. I came to economics because I wanted to learn about how business organizations work. Certainly the best economists (Arrow, Stiglitz, for instance--two of my actual teachers) taught me a lot, but ultimately I learned more from law school and legal practice. This is the other reason I left economics for the law. Informed consumers of economics who produce legal scholarship rather than law & economics have nothing to be ashamed of--to my mind, on average, they produce work that is at least as interesting and informative as those doing technical work in law and economics.

Posted by: Brett McDonnell | Sep 11, 2005 2:34:13 PM

I think that one way of assessing Brian's position is to
look at the degree to which non-PHD JDs can publish
successfully in the the non-law field of interest (e.g.
economics, sociology, philosophy, etc). By this I mean, does
their work place in, say, the top 5-8 journals in those fields.
In my own field, I can think of a few instances of this
happening, but not many. Admittedly, maybe these people prefer
to publish in law reviews, but the peer-review test would lend
some credability to the argument that they are doing cutting
edge work.

Posted by: anon_hopefully | Sep 11, 2005 2:55:16 PM

Of course, another approach would be to establish Ph.D. programs in law schools...as they do in Canada and elsewhere. I recall being at a conference at Toronto organized by Martha Finemand there a few years back and being impressed by the intellectual quality of the PhD students who attended. A program of four years, with two of class work and two of research and a dissertation could be set up, for example, without too much trouble. It would likely broaden the intellectual culture of the law schools offering the programs and help existing faculty with a group of students who could serve more effectively as RAs and TAs. I have to think this has been considered somewhere but I am surprised it has not happened yet.

Posted by: Steve Diamond | Sep 11, 2005 3:07:31 PM

Brett McDonnell's comment seems spot on to me, and gets right at the heart of this (old and somewhat stale) issue.

Posted by: Dave Hoffman | Sep 11, 2005 4:59:07 PM

How about a slightly different tack on this subject that may help. Question. Can a non-JD, Ph.D. make a significant contribution to legal scholarship. I think that outside of purely doctrinal work (and maybe even for that) the answer is clearly, yes. Moreover, my guess is that this happens much more often than the other way around.

Posted by: Mark Weinstein | Sep 11, 2005 6:13:22 PM

Mark: there are lots of great Econ and Finance Ph.D.'s who would have been easily appointable at any top law school if lawyers weren't eagerly protecting their turf by demanding a (completely irrelevant to research) JD. The opposite, of course, is not true: I can think of only a couple of exceptional non-Ph.D. JD's who are good enough to be appointable at Econ or Finance departments.

An even more outrageous thought: an *average* freshly-minted Finance Ph.D. doing law-and-finance work beats the *best* law-econ entry-level candidate on the market, hands down.

Posted by: Kate Litvak | Sep 11, 2005 6:50:03 PM

This may be extending the topic beyond its ken, but would someone comment on the value of a JSD or advanced degree in law vis-a-vis the Ph.D? My understanding of most JSDs (or SJDs) is that they involve 3 years of research under the tutelage of a small committee, leading to a dissertation similar to the Ph.D. So, for example, if one were to do one's JSD in legal philosophy (to pick one field in which some on this thread are expert) at Columbia (under the tutelage of some of the important names in the field there), would this be deemed comparable to solid Ph.D. training (which obviously involves more time)? Or does it simply depend on the quality of the research done and the quality of one's supervisors in the JSD program?

Thanks.

Posted by: md | Sep 11, 2005 7:35:55 PM

Just to briefly ask about the mentions of legal history above. Do I understand both Brian Leiter and Joseph Slater to be claiming that, e.g., David Currie, doesn't do good legal history (or do legal history well, if you would rather)? Or is he one of the vaunted exceptions? Having neither J.D. nor Ph.D., I make no claims of my own.

I'm also confused about the slippage in comments like Kate Litvak's. Is Leiter's claim that all good interdisciplinary work is done by Ph.D.s, or just that one needs a lot of training in the cognate discipline, which might or might not have come from a Ph.D. program?

I had thought he had meant the former, but people like Litvak and Slater claim to be agreeing with him, but also seem to be endorsing the latter claim rather than the former, so I might be confused.

Posted by: Will Baude | Sep 11, 2005 9:35:01 PM

For the benefit of Will Baude, here is a quote from Leiter (above): "The credential is a proxy for the training and competence necessary; it is possible for someone to have it without the formal training, but extremely rare." I hope to have more comments, but I'm in transit...

Posted by: BL | Sep 11, 2005 9:47:42 PM

Leiter's comments (PhD necessary but not sufficient) seem to suggest that it's the former, not the latter.

Which rather seems to confuse the skill for the credential. Obviously some non-PhDs have the requisite skills (it simply cannot be the case that only econ PhDs can read math), and obviously some PhDs do not. PhDs may be more likely to have mad skillz than non-PhDs, and may be more familiar with doing good original work (namely, not assuming that they actually have to do something Huge).

But none of this says you can't do good interdisciplinary stuff unless you have a PhD. One hopes that Leiter is just being hyperbolic.

Posted by: Heidi | Sep 11, 2005 9:50:07 PM

Heidi and Leiter seem to have crossed wires, but thanks to both.

Posted by: Will Baude | Sep 11, 2005 9:57:10 PM

Leiter is not being hyperbolic; Leiter is making the trivial observation that the PhD is a very good predictor of having the skill. Question: name folks who have the skill who don't have the PhD? It's a very short list. Not surprising, when one considers how many years it takes to get the PhD (as Heidi knows, if I'm recalling her educational background correctly).

I find Bruce's comments a bit perplexing. I think I endorse his (1) and (3), because they amount to the same thing; I have no idea where the other propositions came from, but they aren't mine. I admit that I think sociology, like political science and English, are flabby disciplines these days, but I really don't think sociology is so flabby that a discussion of whether cutting-edge interdisciplinary work is done these days by non-PhDs is a proprietary topic for sociologists. I still imagine that they have more complicated questions within their purview.

Posted by: BL | Sep 11, 2005 10:11:28 PM

I thought Leiter made it very clear that a Ph.D. is a good proxy for training, not a subject of fetishistic admiration.

Posted by: Kate Litvak | Sep 11, 2005 10:34:18 PM

I've served on a hiring committee at a law school for several years, and I can add the following:

(1) Phds can be a good proxy for someone who has had actual academic training, and knows how to make an academic, as opposed to a lawyerly, argument.

(2) On the other hand, many Ph.D. programs, especially in the humanities, seem to instill extremely bad habits with regard to research and writing, especially by putting a premium on showing one's familiarity with the literature and making sure to cite and discuss every possible author who has ever commented on the subject, as opposed to emphasizing developing a coherent, theoretically sound thesis. Ph.D. theses, if anything, tend to be even more poorly written than law review articles. Ph.D. historians and, to a lesser extent, philosophers and political scientists, can graduate while being entirely ignorant of, e.g., even basic economics, which does not aid the coherence of their work.

(3) With regard to law and economics, most regressions I've seen are laughably bad, and don't come anywhere near proving, or even suggesting, the results that the author claims to glean from the paper. This problem arises at least as often from PhD economists as from non-PhDs, which suggests it's a problem endemic to economics (and will someone please teach economists that a "statistically significant" result does not PROVE anything--correlation does not prove causation--, even putting aside obvious problems of data dredging and whatnot.

(4) That said, it's tough to participate in the l&e game today if one doesn't have a Ph.D.

(5) And that said, the fact that the above is true is making l&e increasing irrelevant to law, making it more "economics of law" than law and economics. If most judges and legal scholars can't follow it, it can't be very influential in the broader legal community.

Posted by: Anon | Sep 11, 2005 11:02:05 PM

I've served on a hiring committee at a law school for several years, and I can add the following:
(1) Phds can be a good proxy for someone who has had actual academic training, and knows how to make an academic, as opposed to a lawyerly, argument.
(2) On the other hand, many Ph.D. programs, especially in the humanities, seem to instill extremely bad habits with regard to research and writing, especially by putting a premium on showing one's familiarity with the literature and making sure to cite and discuss every possible author who has ever commented on the subject, as opposed to emphasizing developing a coherent, theoretically sound thesis. Ph.D. theses, if anything, tend to be even more poorly written than law review articles.
(3) With regard to law and economics, most regressions I've seen are laughably bad, and don't come anywhere near proving, or even suggesting, the results that the author claims to glean from the paper. This problem arises at least as often from PhD economists as from non-PhDs, which suggests it's a problem endemic to economics (and will someone please teach economists that a "statistically significant" result does not PROVE anything--correlation does not prove causation--, even putting aside obvious problems of data dredging and whatnot.
(4) That said, it's tough to participate in the l&e game today if one doesn't have a Ph.D.
(5) And that said, the fact that the above is true is making l&e increasing irrelevant to law, making it more "economics of law" than law and economics. If most judges and legal scholars can't follow it, it can't be very influential in the broader legal community.

Posted by: Anon | Sep 11, 2005 11:02:42 PM

Brian, (2) came from this statement: "Why do philosophers (without an additional PhD) traverse psychology, linguistics, biology, and physics so much more successfully than lawyers (without any PhD) do? My guess would be this: PhD training in philosophy (and many other fields, of course) is scholarly training, and many of the skills developed and nurtured in such training make for successfuly interdisciplinary engagements; JD training, by contrast, is not scholarly training, and the skills developed and nurtured (and in a much shorter period of time to boot) are not those sufficient in general for effective engagement with disciplines that require a very different kind of course of study."

If you agree with (3), but not (3') or (3''), then as I noted above I think we are all saying the same thing, but disagreeing sharply about how best to say it. My guess is that pet peeves, rather than substantive disagreement, are actually driving this discussion.

Posted by: Bruce | Sep 11, 2005 11:10:23 PM

In response to md, it seems to me the JSD should be the equivalent of getting a PhD. but I dont think it is viewed that way. Probably this is because it is not required to get a teaching job and so I suppose it is a bit like the days gone by in England - you only went to get a PhD if your first degree was not strong enough to land you a teaching post. Nonetheless, if the time spent leads to more published work and strong support from faculty, like those at Columbia, I would think you would do well in the market.

Posted by: Steve Diamond | Sep 11, 2005 11:11:54 PM

I've been practicing for ... hmmm, 30 years. Written a few articles and books along the way. And I find it incredible that people who, for example, have never run the smallest private business consider themselves competent to write on law and economics, or who have never lobbied a bill thru Congress consider themselves competent to discuss statutory interpretation, merely because they have a certain quantum of coursework under the guidance of people who, likewise, have never run a business nor lobbied a bill.

Actually, I don't. I think everyone can add to discourse on a given subject, whether they have the course load, experience, or not. Ideas are good or bad, and I can judge for myself. I do sometimes find it appalling that degrees and whatnot are treated as entry requirements for discourse, and that legal academia is treated as a distinct field (with the result that, in a certain law school which I will not name, the prof. teaching trial practice was on the receiving end of the only civil mistrial for incompetence of counsel of which I have ever heard).

Posted by: Dave Hardy | Sep 11, 2005 11:15:30 PM

There are several terms in this debate that could stand greater clarification.

First, what does Brian mean by doing “cutting-edge” scholarship? If one takes a strong view of what “cutting-edge” means, then few folks in any discipline, whether in possession of a PhD or not, will make such a contribution. One could also take a more narrow view – to say something helpful to others in the field.

Second, Brian notes that “there are JDs who draw usefully on economic and philosophical insights in their scholarship; the claim concerns what is needed to actually advance the interdisciplinary sub-specialties.” It is unclear what “advancing” a field means.

Third, it is unclear what Brian means by “interdisciplinary.” In addition to myself, several others have taken up the issue. I’ve understood being interdisciplinary broadly – virtually all legal scholarship is interdisciplinary to some degree, as it is impossible to talk about law without bringing in sociology, economics, philosophy, history, and other fields. If one defines “interdisciplinary” narrowly to encompass scholarship that will be read and discussed by scholars in the other field, then PhDs will in most cases be more likely to be able to produce such scholarship given that they have the training and language to speak with others in those fields. So a law prof with a PhD in philosophy will in many instances be more capable of producing articles that scholars in philosophy will take seriously. Does this mean, however, that the work is good “interdisciplinary” scholarship? It depends upon whether it is a necessary condition for good interdisciplinary work to appeal to scholars in both fields. Under a broader understanding, “interdisciplinary” could refer to work that incorporates insights from other fields, and under this view, there seems to be no reason why one cannot write successful interdisciplinary work even if it only appeals to other law professors.

Fourth, Brian hasn’t indicated what the implications of his view are for law school hiring and scholarship. Granted, I haven’t asked him. If Brian is right, what can a JD competently write about? Just doctrinal legal scholarship? The answer depends, I suppose, on what is meant by being “interdisciplinary.” To the extent “interdisciplinary” scholarship means appealing to folks in other fields, then should this be the appropriate metric to gauge legal scholarship? One can produce a good philosophy paper but it might not be understandable or even very helpful for legal scholars, for legal practice, or for both. As a result, it may not be good legal scholarship. Is it good interdisciplinary scholarship then? Perhaps PhDs might fail more on the legal end, and hence might fail to produce good interdisciplinary scholarship. One might argue that it is important for law profs with PhDs to make contributions to legal scholarship, not just their other fields, because then perhaps these scholars are better off being in departments in their own fields rather than law.

Posted by: Daniel Solove | Sep 11, 2005 11:34:36 PM

Leiter's basic argument has been around for some time. Martn Flaherty wrote about "History Lite" a decade ago. There is certainly a good deal of sloppy interdisciplinary work that is published in legal scholarship.

However, I don't think that one can answer the question of whether a Ph.D. is required without defining in more detail the scope of the "exceptional J.D." carve-out that Leiter and Litvak seem willing to make. And I'm not sure that the parties aren't more in agreement than it appears.

I don't believe that Dan Solove is defending the person who wants to publish in L & E after having read nothing more than Coase, The Problem of Social Cost. Rather, I read Dan S.'s argument as saying "if an intelligent, conscientious J.D. is willing to invest the intellectual start-up costs of learning the literature and arguments in another discipline, there's no reason to believe that she will be automatically unable to contribute to the literature."

It's not clear to me whether Leiter and Litvak would disagree with that characterization. They have both left wiggle room for some group of "exceptional" or "rare" J.D.-only specimens. Perhaps the difference is in the definitions. The person who actually invests the time to know the literature -- Solove's baseline for the discussion and for his objection to Leiter's original characterization -- may actually be Leiter and Litvak's "rare" candidate (particularly if very shoddy articles are the norm, as Leiter sometimes suggests, and if such shoddy articles are based on insufficient preparation and research by the authors). In other words, semantic differences aside, I'm not sure that Leiter/Litvak and Solove are actually in disagreement.

Posted by: Kaimi | Sep 11, 2005 11:54:57 PM

I only hold a J.D., so I'm not qualified to comment.

Posted by: Strange Doctrines | Sep 11, 2005 11:57:46 PM

Like Kaimi, I think the bulk of this discussion is unlikely to go anyplace until the scope of the "some J.D.s are exceptional" caveat is cleared up. Trouble is, I don't see how that can be done without calling names, and I'm not sure anybody here is willing to do so.

Posted by: Will Baude | Sep 12, 2005 12:11:06 AM

Well, calling names is easy. *I'm* certainly willing to do so, if nobody else is...

For example, surely Cass Sunstein is an exceptional person? Not really difficult, is it. It's hard to find a book in any discipline these days that Sunstein hasn't written a chapter in, and he's worked at least in the intersection of law and economics, psychology, and political science*, if not more. I wouldn't deign to judge those contributions, so if anyone disagrees with naming Sunstein as among the Select Few, do chime in.

So assuming Sunstein is the very model of the modern exceptional J.D., what differentiates him from those who aren't? Let me go out on a limb for a second and lump Posner in the category of "those who aren't," based entirely on the various comments above about him no longer making cutting-edge L&E contributions and certainly not on my opinions about his work or anything nasty like that heaven forfend.

What are the salient features of the former's work that are distinct from the latter's?

Or, to nail this down a little bit in the negative sense: anyone wanna name names? Brian? Kate? Joseph? Will you give an example of an egregiously stupid piece of philosophy or economics or history in a moderately well-reputed law journal, one that exhibits common errors so you can say what those errors are?

Here's to concreteness!

* Incidentally, how are political science, sociology, and english "flabby?"

Posted by: Paul Gowder | Sep 12, 2005 12:47:08 AM

I think that part of the confusion regarding the "exceptional JD" caveat is the result of some obviously necessary backtracking by Leiter. His original claim was pretty sloppy (and, to be fair, not in anticipation of this conversation). For instance, note that the quoted language from Leiter's original post says "almost no one . . . can do competent, cutting edge work in interdisciplinary areas like law and economics, or law and philosophy, or law and psychology." I take it from the subsequent comments that Leiter doesn't actually mean what he said. Instead, it sounds like he is saying almost no one who has only a JD can do competent, cutting edge work in interdisciplinary areas. Perhaps it should have been apparent from the dependent clause of that sentence that I redacted (i.e., "not even someone with an excellent JD") that he was referring to JD-only scholars, but the sentence is certainly not a model of clarity in that regard. Nor does the following sentence ("In those cases, the PhD training is essential.") clear it up really. What exactly are "those cases"? And how to we move from "almost no one" to a PhD being "essential"? It's possible that the "almost" in the original claim is that "rare exception" referred to later, but the "essential" muddies the waters. All in all, the original claim was not terribly clear writing.

Then, in a subsequent comment, Leiter seemingly clarifies by writing, "I didn't say having a PhD is sufficient for doing good interdisciplinary work these days, I said it is necessary. The credential is a proxy for the training and competence necessary; it is possible for someone to have it without the formal training, but extremely rare." This is internally inconsistent. Either the PhD is necessary or its not. The first sentence says it is, the second sentence says it's not (though only in some "extremely rare" cases). It seems that Kate Litvak jumped on board for sentence number two, but ignored sentence number one.

In fact, it looks like Leiter is saying a PhD is neither necessary nor sufficient, but you'd better be one of those rare specimens to try to get along without it, if you want to be taken seriously as an interdisciplinary scholar. So, I agree with Heidi, despite Leiter's subsequent comment to the contrary -- which quotes the "rare" exception, but ignores the "necessary" element he previously defended --that the necessary has to have been hyberpole.

I take it that the the "necessity"/"essential" claim has been dropped in favor of the "rare exception" claim, in which case Kaimi is probably right that there is less of a gulf between the sides than it may at first have appeared.

Posted by: jp | Sep 12, 2005 12:54:22 AM

You know what the worst thing about Leiter's argument is? That most of us real-world law students have neither the time nor financial backing to take 8-9 years of our life after college to work towards getting both the JD and the PhD, especially when the former costs some $150,000. Note that I'm not saying that Leiter is wrong, I'm just saying that what he's saying sucks. :)

Posted by: Jeff V. | Sep 12, 2005 2:14:37 AM

Jeff V.:

Bah. It's much easier to get financial backing for a PhD, especially in a field like econ, and particularly if you invested the effort to be math-heavy earlier in your life. People throw money at you to do a PhD. And if you do it at a place like Michigan, and teach while in law school, they'll even pay your law school tuition. Nice of them, eh? I know at least two PhD/JD doubles here that are graduating without debt because of this.

BL:

Actually, there are a lot of people who have the needed skills but not the PhD. Getting a PhD is in small part about having the werewithal, and in much larger part about having a certain amount of tenacity. It's just that few of those people get J.D.s; and in subjects that are typically thought of as complementary to law, the lack of tenacity in the PhD field will probably carry over to lack of tenacity in law. But just about anyone that drops out of a decent PhD program mid-research for reasons of heart rather than head has the necessary intellectual skills to do the right work.

Posted by: Heidi | Sep 12, 2005 5:39:34 AM

To "anon" above-
Your # 2 might be right, though I'd like to note the irony that the main complaint that many people outside of law have when they read law review articles is that they involve huge and tedious lit reviews that serve no good purpose and just distract from the point. I don't read many technical articles from disciplines other than philosophy or law, but if you compare any philosophy journal (let alone _Analysis_) with any law reivew I think you'll see that the point is essentially reversed.

Posted by: Matt | Sep 12, 2005 6:30:40 AM

Let me just note that notwithstanding Paul Gowder's invitation above(and his otherwise appreciated comments), this site won't be host to swipes at scholars and/or their work in the comments and without serious arguments attached.

Posted by: Dan Markel | Sep 12, 2005 8:00:37 AM

Perhaps the issue is more potent in areas that require technical skills. For instance, I have a real concern about the very poor quality of quantitative research that is appearing in legal journals. Contrary to what anon appears to claim in the comments, trained economists know very well that "correlation is not causation" and spend lots of time dealing with that (try reading Freakonomics for instance). My sense is that the poor quality of quantitative work in the legal field is due not only to an absence of PhD-level training but also to an absence of gate-keeping (no peer-review, students on editorial board have poor quantitative skills).

Posted by: Zaoem | Sep 12, 2005 8:57:13 AM

Is not the real problem the extreme instrumentalist character of actual legal work. I suppose that having a trial judge tell me that my summary judgment motion was just barely granted or winning al appeal 3-2 might hurt my feelings, but my client will care very little or perhaps not at all. (In fact, I might receive undue credit since the closeness might indicate that it was my own excellence that produced the victory.)
The sciences, even the "soft" ones, have, however, a truth-seeking feature that does not appear to exist in most actual legal work. Having a PhD might enable me to say interesting persuasive things in academic contexts, but whether that is cutting edge work, in, e.g., law and philosophy, seems to matter not a whit to law as a discipline.
It seems to me that for law as a discipline, cutting edge means saying interesting persuasive things to judicial and quasi-judicial decision makers(or to other lawyers in contexts that cause my client to win without going before any judicial decision maker). Reading Ronald Dworkin (and Posner) made me want to be a lawyer, but now that I am one, I realize that the average state trial judge has a lot more to do with the law than Dwoorkin does. Writning highly technical, inter-disciplinary articles that do not touch the results in any actual legal controversy is not cutting edge, it is intellectual masturbation.

Posted by: phil | Sep 12, 2005 9:56:38 AM

We're getting close to the "it's all been said" point, if not past it, but since a couple of people asked me specific questions ....

1. Will Baude. I specifically said some folks that just had JDs did good legal history in my first post and I'm happy to repeat that here. I'll add, however, that more folks that do good legal history have both JDs and PhDs, and for that matter at least as many folks with just history PhDs do good legal history as folks with just JDs.

2. Anon. You fault some legal historians for not knowing economics. That's no doubt fair in some cases. But, without getting into a multi-disciplinary pissing match, I would add that there are some "law and economics" types have tried their hand at history with little success (in the opinion of most professional historians who have reviewed their work).

3. Anon. PhDs in the humanities encourage bad habits in research and writing? That's a mighty broad claim. And the convention of having to cite every darn thing that's vaguely related to the point seems to exist more in law reviews than in history journals. As to the literature review in dissertations, it's there in part to demonstrate to the committee that the PhD candidate knows all the relevant literature. But the dissertation is not supposed to be publishable as is, so comparing it to an article isn't entirely fair. At least in history, the goal is to turn the dissertation into a book, and part of that is toning down/editing the literature review.

This is not to say that there isn't some bad writing in the humanities.
Of course there is, and the "linguistic turn" created some wretched prose. And there are mediocre PhDs out there, just as there are mediocre JDs.

4. No, I'm not naming names of people who I think do *bad* interdisciplinary work.

Posted by: Joseph Slater | Sep 12, 2005 10:05:47 AM

Exhibit A against Leiter: Richard McAdams. CV available here: http://www.law.uiuc.edu/faculty/documents/vitae/rmcadams.pdf . Note the absence of a Ph.D. Note also that he publishes regularly in peer-reviewed L & E journals, and is a referee for numerous peer-reviewed L & E publications. As for whether his work is not important, I'll let Leiter make that argument, if he cares to. It will be an uphill battle.

Posted by: Anon for this | Sep 12, 2005 10:29:56 AM

Leiter's strong point is just how sophomoric is the level of understanding in many "law and a banana" writings. His point is that if you don't have the background to get beyond sophomoric mistakes, you probably are not going to advance the area you are writing in. He comes to his point by reading an awful lot of dreck.

To that extent, the need for substantial background, he is right. There are two issues conflated in most discussions that follows. The first is how much knowledge does it take to have legal scholarship that is informed by another area, the second is how much does it take to be able to do legal scholarship that crosses over into the other area (where most of the writing is done by PhDs)? In either case, I think that most would agree that it takes significant study, not just a book or two.

To cross over, for the most part, it probably takes background equal to the audience, which is PhD level background, unless you've had a blinding insight that the entire field has missed.

BTW, if you were to go into a PhD in Finance program, such as the one at UT Dallas, odds are they would pay you $14k a year plus tuition waivers, or more, to be in the program. And BL is right that once you are getting tuition waivers, it is easy to do further work in other programs in the university, including picking up a J.D. (UTD does not have a JD program, I just used it because the other information is easily available)

Done that way, the J.D. adds only a year and a half to the program (because of the classes that count for credit in both programs) -- and occurs during an entire time where you are being supported/paid to go to school.

I suspect that this combination of matters will eventually lead to many more JD/PhDs on the market as the law school faculty members are paid much better than most other programs (not, necessarily, more than a business school would pay for a PhD in finance, of course).

And yes, I almost went back to get a PhD (in finance, even, which is how I started paying attention to these issues), but I enjoy litigation too much at present. Maybe later.

Too bad the writing required to win a summary judgment (especially the kind that wins one without actually having to go to a hearing) doesn't count as publishing -- I'm at 28 zeros on the year. I doubt there are many law professors who can make the same claim about any year they've had -- nor should there be.

But there should probably be more PhDs.

Posted by: Stephen M (Ethesis) | Sep 12, 2005 10:46:16 AM

I am inclined to agree with Professor Slater that "it's all been said," but at the risk of saying it all again, here's a few parting thoughts before I board a plane for London...

(1) Heidi says: "there are a lot of people who have the needed skills but not the PhD." There are not lots of such people in philosophy. I'm skeptical it's true in most other fields either.

(2) I am impressed by jp's ability to make the clear seem unclear, but a well-placed ellipsis can do that. Let me restate the basic point: almost no one with a JD, even an "excellent JD" (per the formulation to which I was responding), can do high quality (let's forget "cutting edge" so that we can stop wasting time on definitional disputes) interdisciplinary work in law and philosophy, law and economics, and perhaps other fields without the benefit of formal PhD training. (Note choice of language: "formal PhD training." Some folks get the training without getting the degree.)

(3) A general point that seems to have come up in various postings: I have not made any claim about the relative merits or value or quality of traditional legal scholarship against interdisciplinary scholarship. (Pointing out that legal education is *legal* education, and not scholarly training, unlike PhD programs, was a, banal I thought, point about the difference between law school and graduate education.) Doug Laycock, to take an example close to home, is a better legal scholar than most interdisciplinary legal scholars, even those who do rather good work. First-rate doctrinal analysis and case-crunching is hard to do, let alone do well, and it is important work, unfortunately denigrated these days at many top law schools. My point was far more modest: it was a claim about the kind of background and training characteristic of those doing high quality interdisciplinary scholarship in at least some interdisciplinary fields (law & phil, L&E being my two main instances). That thesis, stated again in (2), is, I'm quite confident, true. Short of a discussion of individual cases, there would be no way to establish that to the satisfaction of everyone, and this is not the proper, or viable, forum for that discussion.

Posted by: BL | Sep 12, 2005 10:58:27 AM

Fine, I’ll name names if there is such demand for it. Of all corporate law people, only Bernie Black, Rob Daines, and Roberta Romano are “exceptional” enough to publish in serious peer-reviewed econ journals, be treated with respect by senior finance scholars, be invited to present at prestigious finance conferences, and hold teaching positions at top b-schools, while not having *any* graduate degrees in economics. The rest either have Econ Ph.D.s or aren’t nearly as good. I might be missing someone from the “exceptional amateur” category, but I bet it’s at most one or two more people.

And yes, modern corporate law scholarship requires *that* kind of integration with the finance/economics scholarship. As I said before, vague chatter about markets, efficiency, “stakeholders,” and “bargaining power” is now flatly dismissed. It’s basically “put up (the numbers) or shut up.”

So, yes, it’s possible to become very good without formal training. But it’s exceptionally rare. Very very rare. Which makes a Ph.D. a very good proxy for quality. Isn’t it exactly what Leiter said?

Posted by: Kate Litvak | Sep 12, 2005 11:01:30 AM

I was going to ask Kate and others who support her view about Bernie Black, Rob Daines, and Roberta Romano. But what about Stephen Bainbridge, Lynn Stout, Melvin Eisenberg, Elizabeth Warren, Jack Coffee, John Coates, Jonathan Macey, Robert Thompson, Hillary Sale, and Larry Ribstein? Are these folks not doing "modern corporate law scholarship"? How about Robert Clark (Ph.D. in Philosophy) or Reinier Kraakman (Ph.D. program, Sociology)? And these are just the folks at the top.

Second, there’s probably a bit of a conundrum here. Isn’t it fair to say that, if only Ph.D.’s can write cutting edge work, only Ph.D’s are qualified to judge whether the work is cutting edge?

Finally, don’t these criticisms extend across disciplines as well? For example, social psychology has called into question the rationality assumptions that enable economic models to be so mathematically rigorous. Does one need a Social Psychology Ph.D. as well as Econ. Ph.D. to judge the validity of these criticisms?

Posted by: Matt Bodie | Sep 12, 2005 11:42:34 AM

And lets not even forget the extreme overbroad character of the claim that modern corporate law scholarship requires "that kind of integration with the finance/economics scholarship." Is it impossible to say anything useful about corporate law that is not in some fashion economically/mathematically modeled or empirical?! What are the theoretical assumptions behind that statement? (I suspect one assumption is "the values that corporations are supposed to serve are only those values about which one can plausibly do math, i.e. monetary values." Another appears to be "the incentives that operate on people who deal in various fashions with corporations are amenable to expression in or translation into numbers.")

Posted by: Paul Gowder | Sep 12, 2005 11:49:30 AM

True Stories. Once had a debate coach in high school with a Ph.D. in "Theology" from a rigorous program advertised on the cover of a matchbook. Doubt she's doing cutting edge research on Gawd. OTOH, know of a few "almost made it" doctoral candidates who for whatever reasons dropped out of the program(s) with seemingly but microns to go, and I wouldn't be at all surprised to learn of "cutting-edge" research on the part of such folks despite the absence of a sheepskin. What's that they say? "Absence of evidence is not evidence of absence" ? My dad was semi-infamous for being the reviewing prof who might "send you back for six more months of homework" if you weren't prepped for your defense ... and along the lines of "you may have learned a lot even in a course you flunked", mightn't a chap who got sent back thusly be able to make a stab at some sort of serious work despite his/her formal lack of the properly-applied doctoral sobriquet?

Posted by: Jonathan Burdick | Sep 12, 2005 11:57:49 AM

What an informative, helpful thread! Here's where I'm coming from: I'm an A.B.D. in history writing a dissertation that deals (in a very small measure) with the development of legal theory in the twentieth century. In the course of my research I've had to read several histories written by J.D.s at top law schools, and almost all of them had problems that would have been avoided had the authors had the Ph.D. in history. The problems I saw took the following forms: 1) The authors often failed to take into consideration the importance of historical context 2) They were largely unaware of the extant historical scholarship that related to their subject matter. 3) Because of problem #2 they wrongly thought some of their claims were original when they were, in fact, well-trod. 4) Also because of problem #2 they missed golden opportunities to communicate with historians, because if they had mentioned certain debates or issues the implications (that is the importance) of their work would have been more readily apparent to historians (and who wouldn't welcome a larger audience?).

In light of my experience, Prof. Leiter's position makes sense. But I take seriously (especially in history as opposed to philosophy or economics) the claim that problems associated with the lack of the Ph.D. can be simply corrected by more personal initiative. That is, if you're a J.D. writing a legal history be sure to ask historians in that area for appropriate reading lists and read what's on them (unlike philosophy or econ, you're most likely not going to need special training to understand these works). That would solve almost all the problems I outlined above, except for problem 1 (historical context) which could be partly remedied by reading Quentin Skinner's article "Meaning and Understanding."

Here's a question: grad students pursuing Ph.D.s almost never pay tuition and often have stipends to cover living expenses. Should there be such an arrangment for future academics looking to get the JD? For instance, I would benefit from having a J.D. and since I'm here in Texas I'd like to do it at UT, where David Rabban, Sandy Levinson, and Brian Leiter teach (all of whom have done work that relates to my area of interest). But there's just no way I'm going to shell out tuition for law school when I have zero interest in practicing law. No doubt such an arrangement at law schools would not help others in my situation (including not just historians but also those with Ph.D.s in political science, economics, and philosophy) and would help increase the number of academics with formal training in both the law and other subjects. No doubt this would be a good thing. What are the arguments against it?

Posted by: CVW | Sep 12, 2005 12:27:59 PM

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