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Friday, March 31, 2006

How to Design a PhD in Law

PhDs in Law? – yes, they basically exist in every place other than the U.S. PhDs for as the leading degree for teaching? – yes, that is the standard in every discipline (including professional disciplines, like Business and Medical Schools) other than law.

So is there a justification for its absence in the legal academy? Less and less so. Most people recognize that law schools are a central place within the academy of serious intellectual endeavors. They attract strong academic minds and legal scholarship requires sophisticated, deep training. There is also an increasing understanding that the best predictor for later academic success is a substantial showing of commitment to writing at the early stages before tracking the desired tenure. Of course, increasingly there are substitutes to the fact that the JD is the degree that is expected and available for law practice and academia (as opposed to, for example, the very clear distinction which exists in every respectable B-school, between the MBA and the PhD). Here are the three main substitutes:

1)      The other-discipline PhD.

2)      The no-doc Post-Doc (Olin fellowships; “Associates in law”; visiting lecturers; and also increasingly the pre-(or during-)market visiting assistant prawfs.)

3)      The “foreigner’s” route: the SJD. [that would be me…]

These are all viable alternatives. I think they can each offer a lot and could continue to be a possible model for the legal academic track [except for the third one, which could simply be replaced by the granting of a PhD, once that becomes a serious option.] The handful of top schools offering an S.J.D. degree are to one extent or another successfully emulating the model of a doctoral degree in other disciplines. The Harvard S.J.D., the best one in my mind, far more structured and vibrant from say, the Yale S.J.D., includes:

Stage (1) the course work stage (usually first in the form of an LLM, and then following the year, in the form of courses all around campus);

Stage (2) the oral exams prep stage, in which the student designs together with her committee of 3 or 4 advisors [often 2 or 3 law profs and one or two external advisors, who teach in other fields] reading lists in several fields of study [e.g., “law and society canons”; “behavioral law and economics”; “local government theory and practice”; “history of IP”; “theories in comparative law scholarship”].

Stage (3) The post-orals, pre-defense stage: the writing and fellowship stage. At this stage, S.J.D. students at Harvard write their thesis, which can be broken down to 3 substantial articles and are required to make two colloquium presentations prior to their final defense presentation. The first colloquium happens at the earlier stages of the thesis development and the second is a fuller presentation, similar to a job talk. Both are open to all grad students; advisors; visitors. Most grad students at this second stage of their writing are, very similarly to other doctoral students around the campus, engaged in various teaching/thinking/organizing fellowships, such as being active in one of the law school’s centers—the human rights program/the Berkman center for internet and society/the Olin center/the program on negotiations; or other doctoral fellowships, such as at the amazing Weatherhead Center for International Affairs and the superb Center for Ethics and the Professions. Many become Clark Byse teaching fellows, which is the unique opportunity to teach your own mini-seminar at HLS, wholly designed around your thesis. Others often TA in other parts of the university, gaining teaching experience and networking opportunities.

The main weakness of the SJD is its perceived inferiority to other doctoral programs, precisely because it inhabits mostly non-Americans and is not considered a necessary step for becoming a great job market candidate. Because of this, it is also under-funded, especially compared to the great payoff from sending out very successful teaching candidates on the market, year after year, both at AALS and around the world (what about some cost/benefit analysis, funding folks?)

But what if we were to have a real PhD degree offered in many more American law schools; one that was designed to carry people into a lifetime of scholarship and teaching in a law school? How would it look like? What would it do to the legal academy?

I would argue that it could have transformative effects on legal academia. I think it would mean that the law school itself as an academic institution (as opposed to other disciplines+JD; clerkships and one year fellowships) would have to be taken much more seriously. It might even begin to challenge a few other anomalies of the law school, compared to other academic schools: A) the fact that it is not formally departmentalized, and B) the fact that rankings have been virtually entrenched for over a hundred years. Taking the notion of academic mentorship as the path to academic careers more seriously would have to mean more structured debates about fields of study and methodology; particular strengths of various law schools; variations in rankings according to fields and offerings. Because doctoral programs would have concentrations, a cross of both substantive areas and methodological fields, areas of research would be debated, defined and redefined as programs and scholarship developed. Prawfs would actively seek out outstanding candidates and push them to become interested in their fields and competition for doctoral candidates would be based largely on who might become one's advisors—that is, which school has the star mentors in your prospective areas. Inner-breading, and let’s say it, quasi-exclusive breading by two schools, would be challenged and the free flow of ideas via the next generation would become more dynamic and multi-directional.

And wouldn’t be great to have doctoral students around that can imagine themselves following in your paths, that are interested in ideas, and that challenge you on your grounds?

Posted by Orly Lobel on March 31, 2006 at 04:43 PM | Permalink

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This is all really interesting. One effect of this policy is that it would cement separation between the practice and academic tracks within law. Fifty years ago--indeed, perhaps even twenty--the ranks of lawprofs were filled almost entirely by top law students, who were required to do little additional work, often going straight from their third year into a faculty position. The sense was that everyone was a lawyer, though some practiced and some taught. The academy was seen as a subset of the legal profession. Now there's a growing sense that the academy and the world of practice don't have a ton to say to each other, and the legal academy has a lot more in common with arts and sciences faculties than it does with practice of law. Whether this is good or bad depends on who you ask. Creating JDs in law could be seen as an honest recognition of a trend that's inevitable anyway; or it could be regarded as the final brick in a growing wall of separation between the academy and practice (which seems perhaps like more of a concern when you consider that lawprofs are training lawyers, not future teachers, some 90+% of the time).

This kind of change might also have the effect of raising the costs of going the lawprof route. Part of the reason that there are so many applicants for the relatively small number of openings in any given year at AALS is that unhappy lawyers can always just show up and try to land a teaching job. But if there were some barrier to entry, like a post-JD degree, that might force people to make a commitment to teaching earlier in the process, weeding out folks who are merely seeking an escape from their grim lives at firms.

One way to do this might be to have the PhD option as an add-on that you can elect during your third year, so while most people graduate with the intent of becoming lawyers, aspiring profs can spend a couple more years working on writing and getting an advanced degree. This would probably be better than requiring people to elect the academic track at the outset of their time at law school, so they can mull over the option rather than having to make a choice before they have a chance to consider practice versus teaching.

Posted by: Dave | Mar 31, 2006 5:19:51 PM

Orly--

Thanks for this great post. I have a couple of questions for you. (1) Do you think that the JSD/SJD option continues to be pretty much exclusively the province of foreign graduates? It seems to me that if it went more "mainstream," with increased funding, attention from professors, etc., it would be a wonderful "graduate" community for law schools, especially, as you say, since greater legal training is helpful to get a baseline of knowledge in your field. (2) In your experience, how much of a "lesser" degree is it considered by comparison with a PhD when you are actually on the market. Are people skeptical of it? Generally positively inclined toward it? Nonplussed? Does it depend on the field one has chosen?

Posted by: md | Mar 31, 2006 5:21:15 PM

One other question, if it's alright. Are Harvard and Yale's SJD programs the only ones to be considered for non-foreign-trained candidates (or for all candidates)? By that I mean are they the only ones taken seriously by hiring committees, or are the programs at Columbia, NYU, and Penn (and even ones further down the US News ladder) equally or nearly equally well regarded?

Posted by: md | Mar 31, 2006 5:56:02 PM

I think this is a great idea and it would have profound effects on the teaching of law--I think it would improve and humanize it tremendously since professors would be selected on the basis of quality teaching and scholarship, not by excelling at the current system (entrance at top schools, exams, high class rank, law review). Because they would no longer be wedded to the current inefficient system of law school instruction, professors would be more open to innovation and more committed to instruction instead of enforcing heirarchies. It would be a sea-change.

Posted by: Bart Motes | Mar 31, 2006 6:58:34 PM

Expanding upon Dave's parenthetical: If this system were instituted, law professors would probably become even more theoretical, and "law school" even less useful for lawyers. While other countries may have PhDs in law, in many of those countries, lawyers-to-be study law as undergraduates, and aren't required to do an additional three-year degree to be practitioners.

So under your proposed system, perhaps a three-year graduate degree should no longer be a prerequisite for becoming a practicing lawyer. (Which would of course mean many fewer law schools, and thus fewer law professors, but that's a separate issue.)

Posted by: Lawyer | Mar 31, 2006 10:08:14 PM

Assuming these PhD students get a tuition waiver and a stipend as in most other grad programs, wouldn't this result in a pretty significant money drain from JD programs, especially if it means doing away with SJDs/JSDs (which to the best of my knowledge are funded less than PhD students in other disciplines, and in some cases even completely unfunded)?

Posted by: Anthony | Mar 31, 2006 10:57:52 PM

Dave,

You make a good point about the entry barrier - but I think it's happening now. Take a look at Larry Solum's coverage of who's getting hired. More and more, the prawfs getting hired have SOME sort of advanced degree. I think last year it was 68 of the 100+ people.

So is it possible these higher entry barriers already exist?

Posted by: Alan Tauber | Apr 1, 2006 12:23:47 PM

Alan: Yes, there are definitely entry barriers now, though they're more informal. Though you could just get a JD and head into the teaching market, this is unlikely to succeed without some combination of publications/PhD/fellowship/VAP/clerkship etc. Perhaps the difference would be that a law PhD would streamline the barrier to entry. It would make the prerequisite for application the advanced degree, rather than JD + something else. In the course of getting the advanced degree, you'd do lots of the things that are becoming informal requirements now (publications, presentations, teaching, etc.). This might mean that the AALS hiring process did a lot less weeding out (I think I read on Leiter's site that of the thousand or so applications that are filed yearly, 85 or so percent are non-starters).

Posted by: Dave | Apr 1, 2006 3:32:35 PM

I'm curious what the real value-added of a PhD in law would be in most cases. As I see it the value of a PhD in another discipline (I say this as someone doing a JD and PhD) is the ability to bring the insights of the other discipline to law. (This can obviously flow the other way, too.) But, with a PhD done in a law school the added value is less clear to me. Just having more time to write is nice, but doesn't seem to add as much. Even law schools with highly interdisciplinary faculty rarely have anything like the depth of a decent PhD granting department. (This is something that makes me somewhat skeptical of the Vanderbilt PhD in law and econoics program, though it might work out.) I'm not sure of this- but this is what worries me about the idea of a PhD in law, as opposed to one in another discipline. (As a side note, the SJD program at Penn, mentioned briefly above, is _very_ small- maybe 2 or 3 students at most- so in that way at least probably can't compare to the programs at Yale or Harvard, though I don't know enough about those programs to say for sure.)

Posted by: Matt | Apr 1, 2006 3:46:10 PM

How tedious! I've always thought that one of the explanations for why so much creativity and vitality existed in the North American legal academy was that, unlike in the humanities and social sciences, we didn't require people to spend several of their most energetic years on the artificial exercise of a writing project intended to satisfy a committee of professors. There may be disciplines where what is involved in a PhD doesn't have such a stultifying aspect (my sense is that economics PhDs don't)and I don't know much about PhDs in the pure sciences so these remarks don't even address that. But in many areas a PhD is simply an obstacle to getting on with saying what one wants to say in the way one wants to say it. At the time at which I did graduate studies in law (Canadian schools require an LLM) I seriously contemplated doing a doctorate-there was a trend in that direction in Canada in those years. Deciding against that option is one of the best decisions I ever made.

A difference between Europe (and much of the world) and North America is that is that in Europe a law degree is a first degree (as one of the commentators on this post has already mentioned). Another difference is that the law degree is almost all, or all, exam writing in standard courses. These differences make it understandable that when people graduate from law school they aren't going to have (probably) anything like the intellectual maturity, or even the basic research skiils, to be scholars.

The lack of a PhD in law--or any other discipline--has never prevented my own writings from being debated and cited by scholars in other disciplines, whether economics, philosophy, or political science/international relations, where a Phd is a prerequisite for competence. A Phd doesn't matter if you have something to say and at the risk of sounding arrogant, I have always believed I had something to say. Otherwise, I wouldn't have bothered with academia.

I love working with practitioners as a consultant and writing with them, too. Practical problems in international economic law and governance fascinate me. I don't think this makes me less of an academic lawyer. We law professors have been too intimidated by the apparent rigor and theoretical orientation of other disciplines; we need to start to understand how the normative/practical orientation of law is an advantage for serious thought, not a drawback. Many of the other disciplines are hobbled by a continuing explicit or implicit commitment to something like the fact/value distinction. How those disciplines still divide up the domains of inquiry into human matters is influenced by largely defunct ideas, often originating in the 19th century about the division between, Natur- and Geisteswissenschaften. How refreshing that we in the North American legal academy don't have these kinds of straightjackets on inquiry into human phenomena. Please let's not start inventing them!

Posted by: Rob Howse | Apr 2, 2006 7:34:40 AM

Orly -- great post. One question and two comments:

(1) I apologize if I'm just failing to understand the details of your proposal, but are you saying a PhD could be (a) a substitute for a JD or (b) just something additional you get after the JD. I thought you meant (a), which is an idea I like, so I'll address that with my comments...

(2) I disagree with the comment by "Lawyer" that "law professors would probably become even more theoretical, and 'law school' even less useful for lawyers." One problem at top law schools is the increasing disconnect (as Dave noted) between academia and practice. If the most non-practitioner profs could do their "teaching" in PhD advising and PhD-focused classes (some of which classes the JD students might take occasionally), that could (a) liberate the purely academic profs from the purely practice students and (b) vice-versa (liberate the purely practice students from the purely academic profs).

(3) Currently, which law students get mentored to become future law profs? Sure, it's partly a matter of talent, but because there's no formal program for law students to express/pursue that interest, it's to a substantial degreee a matter of schmoozing and luck (e.g., do you happen to take a class with a helpful prof?). A PhD program could serve the purpose that the increasingly popular "formal mentor" programs serve in law firms and corporations: make sure good incoming talent doesn't get left behind for lack of a mentor relationship.

Posted by: Scott Moss | Apr 2, 2006 5:54:48 PM

I always thought that medical schools were in the same boat as law schools, with the degree for practitioners the same as the degree for academics. Looking at a couple of med school websites, I see you're right and I was wrong. The med school example might lead to some interesting ideas for law schools. Med schools grant phds (at least the top couple I glanced at), but there's a lot of people on their faculty lists with just MDs. How many of them are practitioners at teaching hospitals, I don't know. It's also not immediately clear how many got their PhDs at medical schools, as opposed to, say, in biology departments. That's worth further study.

There seems to be a lot of merit in your proposal to have phds at law schools, but I have a few questions.

1. How would this effect the economics both of law teaching and law practice? It seems that it might depress the salaries of law professors because those who went into that "track" would be basically announcing the increased value they place on law teaching opportunities. As for practice... well, the first question is whether people with PhDs would/should be allowed to practice. I'd think it would be tempting to make them completely separate tracks, especially if the PhDs are going to be funded. (How unfair would that be, to fund PhDs that would turn straight into the lucrative profession and leave the JDs in the lurch.)

2. Would this permit the JD-only programs to be more practice oriented, even at top schools? Surely a good thing.

3. Assume, for a moment, that you agree with the Leiters and the Litvaks of the world that a lot of law school scholarship, esp. interdisciplinary scholarship, is, uh, crap. Would having a phd program within the law schools alleviate this, or would it exacerbate it? I fear the latter, because law school phds would compete with external-discipline phds and reduce the influx of people with outside degrees, making legal academia more insular and less likely to be accessible to idiot-checking from other fields.

Posted by: Paul Gowder | Apr 4, 2006 12:19:40 PM

Great post. Let me offer two additional options:

4. The interdisciplinary PhD offered in a law school with formal training (Berkeley, NYU, UC Irvine, soon Santa Barbara I think) and

5. (kind of a sub-category of #1) The "other disicpline" PhD at an insitution making an effort to facilitate the joint degree by providing some structure for students doing JD/PhDs.

On #4: I'm surprised Jurisprudence and Social Policy at Boalt has not been mentioned. Yes it is tremendously unique, but is a combination of the sort that would eliminate some of these problems -- you do get empirically trained (if you choose to) and you have to be steeped in a discipline (in my case sociology, but other options are econ, political science, history), but the PhD is in JSP. (has its own issues on teh disciplinary job market, but they are surmountable).

#5: And then there are all the joint programs, where you get the JD and the PhD in a traditional discipline (with all the required training) but they try to streamline the process. Northwestern offers a joint degree program in Law and Sociology as does University of Wisconsin, Madison (quite famously as it is the #1 sociology department in the country and one of the most law and society law schools out there). Stanford has a brand new one. There is a lot out there for folks really interested in getting a PhD that is meaningful in terms of methodological training. Very hard to get this in a law school, but possible in a place with a top-notch research university on hand. These programs try to stremline the process by allowing some courses to cross-over and helping the law school writing requirements bend so they can be part of the dissertation, etc. Little things, but things that can shave a year or two off the joint program which otherwise could be 10 years.

Posted by: Laura Beth Nielsen | Apr 4, 2006 2:17:11 PM

Laura,

What are you refering to in #4 above about Irvine and Santa Barbara? Neither have law schools, I think. Is there something else you have in mind? I'm just curious. Penn has at least two formal JD/PhD programs, that are specially structured and fairly well coordinated- Philosophy and History. It helps that there are several faculty in the law school w/ joint appointments to the departments in question. As to the comment just above, the program at Penn is set up so that some of the financial assistance is a forgivable loan- you must go in to teaching for a certain amount of time within a certain amount of time or else you have to pay back the loan. It seems to work well.

Posted by: Matt | Apr 5, 2006 1:02:19 PM


I am curious about the American system of legal education. In Ireland, as is in much of Europe it is usual to study law first as an undergraduate rather than as a postgraduate. Is is possible to study law as an undergraduate (as a full-time degree)in the United States? If not, does this have the effect of rendering the practice of law the preserve of a wealthy elite? I have now been studying law for seven years. I compeleted a four year undergraduate law degree, I then sat and passed the New York Bar, completed the one year Barrister at Law degree in Ireland and then completed a one year LLM in the London School of Economics. As undergraduate education is free in Ireland, I have only had to pay substantial fees for the Barrister at Law degree and my LLM. What is the justification for restricting the study of law to those who have completed undergraduate degrees?

Posted by: Abhcoide | May 8, 2006 7:56:18 PM

Abhcoide - I think public education should be free for all, all the way from kindergarten to the Ph.D. level.

As was mentioned above, in Canada the entry-level degree for law professors is the LL.M. And Canadian legal education is basically the same as the US, except the LL.B. is granted instead of the J.D. (except at Toronto). There is a move to change it elsewhere given that you pretty much need a bachelor's degree (at least 90+% of the time) to get into a law school. Toronto and Osgoode offer the SJD degree, while UBC offers the only law Ph.D. in North America. But very few Canadian law professors have the SJD degree.

Very very few faculty seem to have the LL.B./J.D. only. This stands in contrast to the US, where the traditional path of becoming a law professor was graduating at the top of a class of a top school like Harvard, Chicago, Penn, Michigan, Cornell, Stanford, etc. (in other words having the same training as lawyers in general but mastering the material better than everyone else) - though I understand this is far less the case today. Most of the faculty have an LL.M., but lots of others have graduate degrees in such subjects as economics and political science. There's wayy more Ph.D.'s than SJD's on Canadian law faculties.


Posted by: Nicky Numbers | May 22, 2006 8:14:39 PM

People consider JD degree as a degree bisides a another degree. It is like you have undergraduate degree in Business Administration and you take another undergraduate degree in Physics or Biology. When you look at on the UN job opportunities they always ask candidates to have an advance degree in law which is LLM program. JD is considered as like undergraduate degree. I sustain the idea of having a bachelor degree in law, then an LLM and a PhD to be more competitive internationally.

Posted by: Edouard Kayihura | Aug 23, 2006 11:36:11 PM

i am a lawyer in iran and i am m/a in law .i am interested to have phd in law .

Posted by: seyed hamid reza ghaderi | Sep 11, 2006 8:47:38 AM

PHD in Law can give those (in Hong Kong), who get a bad honour degree and cannot thereby get into PCLL and become a lawyer, a route to call themselves "experts in Law". It is not sure, however, how the law firms and other employers view it and what positions are available exclusively or the same standing as lawyers to them other than teaching and research.

Posted by: Tom Fong | Oct 12, 2007 2:33:36 AM

i have two law degree BA of law 1996 from JORDAN ,master degree from USA -INTER NATIONAL HUMAN RIGT'LLM.i,m looking for PHD in international law.i live in USA i need your help ,like toronto CANADA,or WESTERN COUNTRY.

Posted by: zaid odeh | Oct 21, 2007 4:08:15 AM

I am LLM (Corporate Law) student at International Islamic University Islamabad. I shall start my Thesis work soon. After this, I want to do Phd in Corporate Law from Hong Kong or Singapore University. Is there any one who want to talk more over this topic?

My email is [email protected]

Posted by: Tariq Rasheed | May 29, 2008 7:31:14 AM

If i'm not in wrong place, may i get information about PhD Scholorship? I wanted to do my research on Intellectual Property Law. Presently, I'm Teaching Intellectual Property Law in Law Collage here in Nepal. I have my LL.M in Intellectual Property Law.
Raj Suwal
[email protected]

Posted by: Raj Suwal | Jan 22, 2009 1:03:44 PM

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