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Thursday, July 28, 2005

Law professors within a university

A few months ago, I attended a gathering of young law profs at Georgetown.  At the meeting, we discussed Stephen Feldman's provocative article,  The Transformation of an Academic Discipline:  Law Professors in the Past and Future (or Toy Story Too), 54 J. Leg. Ed. 471 (2004).  (Some of the PrawfsBlawg contributors, past and present, were in attendance, so I apologize in advance if I am repeating an old conversation.)

Feldman asserts that we law profs have traditionally thought of ourselves as lawyers, when are actually university professors.   We can't quite figure out how to be university professors, however.  Hence, we are undergoing a crisis of identity -- which Feldman cleverly analogizes to Buzz Lightyear discovering that he is actually a Toy, rather than a real Space Ranger.

When I returned from the meeting, I recommended the article to a number of colleagues.  Now, in a classic example of "no good deed goes unpunished," I've been drafted to lead a discussion of the article for our faculty in a couple of weeks.  This has prompted me to think more seriously about Feldman's claims -- and to seek other views about a law prof's place in the university.  I wonder if our problem might be a slightly different one:   We (rightly, in my view) view ourselves as university professors, but our colleagues in other departments think that we are just lawyers.  (They would argue that we lack their rigorous academic training, etc.)  Using Feldman's Toy Story analogy, "real" university professors believe that law professors are the deluded Buzz Lightyear.  We are simply pretending to be something that we are not.  I am correct about other discipline's view of the legal academy, how should law professors claim their place as "real" professors within research university?  How will the influx of more J.D/Ph.D.'s affect the perceptions of "mere lawyers" who are legal academics? 

Posted by ngarnett on July 28, 2005 at 06:28 PM in Life of Law Schools | Permalink


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I've been on university-level academic committees of various sorts, and my sense is that neither the "trade-school" aspect of it (cf. the earlier comment about engineering programs -- or, for that matter, most medical schools) nor the JD/PhD degree discrepancy (plenty of MFAs on art/music/theatre/dance faculties, for example) is the real root of the problem. Rather, it's the combination of the tenure and publishing processes that really hurt legal academics in the eyes of their university peers. Most other academics don't understand how law review articles get published until they serve on a university T&P committee (and sometimes not even then); but once they do, the combination of disbelief and derision at the way things work make the Epstein and King (UNIVERSITY OF CHICAGO LAW REVIEW 69(1): 1-133) criticisms pale in comparison. Add to this the fact that, in many law schools, landing three or four such articles is enough to get you tenure (typically along with promotion to full professor and a salary 2-3 times that of one's colleagues in arts & sciences), and it shouldn't come as a surprise that any possibility of respect is quickly replaced with a mix of disdain and resentment.

Posted by: The Pooka | Aug 1, 2005 2:59:00 PM

I think it's one of the strongest virtues of law schools that most legal academics feel a strong craft discipline to write clearly and relatively accessibly. In the days of high post-modernism (1990s), even a lot of historical writing was chock full of jargon that was at minimum quite dense and was, in the opinion of some (including me), often not helpful or persuasive. And other fields in the humanities were more so.

The possible other side of the coin, however, is that legal academics (too?) often look to other disciplines to give definite *answers* to legal questions, e.g., looking to history to find out what the rule or intent behind the legislation "really" was, etc. Even historians who didn't buy the strong post-modern claims that there were no "facts" are still are skeptical that such answers can typically be found.

Posted by: Joseph Slater | Aug 1, 2005 11:30:41 AM

One difference between legal academics and others might be that our trade school outlook (and student reviewed journals) force us to distill interdisciplinary theory and legal arguments to writing that nonspecialists can understand. This might be why we get on TV more than do other academics. It's not a bad thing, and perhaps we should embrace our difference from other professors.

Of course, it's not clear that this is what legal academics will do. Part of being a good historian is still encapsulated in the ability to be clever and write engagingly, but other, less secure humanities disciplines have made their claims to speak with authority by adopting a dense, opaque method of discourse. It could be that law professors try to assert their scholarliness by doing something similar.

Posted by: David Zaring | Jul 31, 2005 11:09:44 AM

Cooke makes most of the big points about PhDs vs. JDs. I would also add that PhDs, (I'll assume we're comparing work in the social sciences and humanities), spend much more time grappling with theory than law students do. More broadly, most PhD programs are designed specifically to develop their students as future academics; that means the program is dedicated to teaching them how to be teachers, teaching them how to engage in lengthy and sustained research and writing projects far beyond even the most thorough law school seminar paper or law review note. In contrast, it's not the mission of law schools to turn any significant chunk of their students into academics.

Finally, although this is always a touchy point, many-most academics outside the legal academy regard the law review publishing process (multiple submissions, no peer review, no anonymity) with great skepticism, if not outright disbelief and derision.

Of course none of this means that everything PhDs do is better than everything JDs without PhDs do. There's a lot of great and mediocre stuff produced by both. The good quality of work by many JDs, however, may be in large part due to the fact that law schools attract lots of smart people -- I would guess more than grad schools in the humanities, just because the salary and even basic employment potential is so much better with law school. It's not because JD training is roughly equiavalent to PhD training, because it isn't.

Posted by: Joseph Slater | Jul 30, 2005 2:15:14 PM

A comparision of the structure of the American legal academy with European faculties would be interesting in this regard. In Europe, you can study law at succeedingly higher levels, similar to other disciplines, e.g., bachelor, specialist/licence, master, DEA/DESS, doctorate (some of the nomenclature changes from country to country). In the US, higher-level law study is seemingly discouraged in favor of degrees from other disciplines. As I understand it, in Europe you can study legal history in a law faculty at the doctorate level, something that would be unusual in the US (although possible in an LLM or SJD program). I wonder how law professors in Europe are viewed in comparison to their peers, and how that view differs from the US.

Posted by: Brad | Jul 30, 2005 12:47:09 PM

Cretin, I'm not really certain the "it doesn't seem all that hard" criticism is valid. Such an argument could as easily be applied to the earning of a JD. (example: I'm familiar with undergraduates far more adept at legal research/writing than many 3Ls. Does this negate the value of the first 2 years of traditional legal education?) There are brilliant and less-brilliant examples of published works or scholars from most any discipline. But this simply does not diminishe the considerable differences between a terminal law degree and a traditional doctorate of philosophy. A given PhD requires 4-6+ years to complete, may involve reading proficiency in 2 or more foreign languages as well as the designing/teaching of undergrad courses, and finally, culminates in a signifcant and original contribution to the academy. None of these can be said about the earning of JD.

Posted by: Cooke | Jul 29, 2005 6:59:39 PM

Several of the points above are at least partly right, I think. Many academics tend to look at law school as, essentially, a trade school. Even though law schools have become more scholarly this is still at least partly right. The view is that they have more in common with the Business school than w/ other academic departments. To the extent that law professors don't interact with the rest of the university this is increased. At many schools, as well, there is a more physical seperation of the law school and the rest of the university that certainly plays a part. If the law school is just not physically part of the university it's hard for the rest of the university to feel like it's a central part. Even at places like Penn, where the law school is right on the main campus, there is a distinction in that the law school has security guards who make it hard for people who are not law students or professors to come in to the building. Even other university students and professors must sign in. No other part of the university, as far as I know, does this, and it causes a great deal of annoyance and resentment, much of it justified. Finally, I suspect there is at least a bit of envy on the part of many university professors on acount of the fact that law professors usually make significantly more professors in the academic departments, especially when the academic professors see this as being completely unjustified by scholarly considerations. (The tenure process for law professors, for example, is a comparative joke comepared to that in most parts of the university. This again is one thing that makes the law school seem like a trade school to many academics.)

Posted by: Matt | Jul 29, 2005 1:40:10 PM

Could someone please comment on what it is that's so magically transformative about getting a PhD? Because I really have trouble seeing it, at least for some (perhaps most) disciplines. I've read, for example, a decent amount of political science work, and a substantial portion of it strikes me as half-assed. And I don't mean that I don't buy into the analytical methods. Rather, I mean that I come away thinking that it wouldn't be at all difficult to do a materially better job of what the author set out to do. And some of this is stuff published by brand-name university presses.

Posted by: Apparent Cretin | Jul 29, 2005 10:34:42 AM

Part of the disconnect, at many universities I have attended and worked at, is that the law school is extremely balkanized. I think the major problem comes from law schools, and law professors by extension, making no attempt to connect to the wider institution. The other problem is our insistence in thinking and asserting that a JD is an earned doctorate in the same sense that a PhD is. When professors in other disciplines compare what they had to go through to earn their doctorate to what most law professors had to go through, it devalues our degree and our status as "real professors" in their eyes.

In reference to the comment about the practical nature of law school instruction... no one argues that engineering professors are not "real professors" and part of the academy, and yet they, like law professors, are bent on preparing the vast majority of their students to work in the field.

Posted by: Tshaka Randall | Jul 29, 2005 9:25:23 AM

Appointments committees might keep the following question in mind: is the candidate starting from a conclusion and looking for an argument to support it, or starting with evidence and looking for a conclusion. The latter candidate is far more likely to develop into an academic, and not just an advocate with the title "professor."

Posted by: David Bernstein | Jul 29, 2005 12:36:49 AM

In criminology circles, there is a longstanding and high-volume debate about whether an academic should aim to have any impact at all on the real world. Can you imagine such a debate splitting a law faculty down the middle? Law professors might disagree on HOW they might best influence the world, but the desirability of some measurable real-world impact has a pretty strong consensus. Perhaps this gives us a working definition of a "real" university professor: people who genuinely doubt whether they should aim for any immediate impact on ordinary worldly affairs.

Posted by: Ron Wright | Jul 28, 2005 9:45:49 PM

I think you are correct about other disciplines' view, and I think it is not without reason. I think there is an inherent tension between the purpose most students attend law school and most law school classes are taught -- to train future lawyers -- and the type of activity that marks an academic discipline, which involves applying some sort of method to some sort of subject matter for explanatory, rather than instrumental, effect.

I enjoyed Laura Kalman's book about the history of legal realism, and one of the points it made was that the search for alternative disciplines to graft onto law (law & economics, law and history, law and critical theory) is due to the fact that law is itself seen as not sufficiently theoretical to be the basis for its own discipline. The result is a lot of law professors, and lawyers, who are confident that they are multi-disciplinary, but who in fact do not know enough about the subjects they are borrowing from to realize how much they don't know. (It's not their fault, really -- who has time for all that reading?) As a committed generalist entering the legal academy, I worry sometimes I'm doomed to being mediocre at many things.

It's worth keeping in mind though that this is not a phenomenon limited to law professors; historians, for example, also have a habit of being inspired by books outside their field, sometimes to the bemusement of those in the field. Clifford Geertz was very popular among historians when I was in grad school, but I recall reading that actual anthropologists had long since moved on -- sort of like the way Gorbachev is popular everywhere except in Russia. I don't know enough about other disciplines to know whether law professors are worse borrowers, or simply borrow more often, or (worst of all) both.

Posted by: Bruce | Jul 28, 2005 7:33:50 PM

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