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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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Posted by: link123 | Aug 2, 2006 2:00:52 AM
Paul, I happened to just stumble across this article in my collection, which shows that the amount of specialization in at least the hard sciences was beginning to trouble people 50 years ago:
Conway Zirkle, "Our Splintered Learning and the Status of Scientists," Science, vol. 121, pp. 513-19 (Apr. 15, 1955).
Posted by: Bruce | Sep 20, 2005 1:51:49 PM
Has anyone ever studied the growth of knowledge in academic fields and the consequent amount of study it takes to contribute? I'll bet it's described by an exponential curve, possibly a steep one. Think of this. A hundred, hundred and fifty years ago, Marx, a philosopher, revolutionized economics. Darwin, a misc. scientist-not-otherwise-specified, invented modern biology. Jaspers was trained as a pyschologist, etc. etc.
Going back a little further, we have Descartes, a.k.a. the First Interdisciplinarian Lawyer, who invented modern everything.
Today, we have PdDs in economics who claim to know nothing about macroeconomics, interdisciplinary law requiring both a jd and a phd, etc.
What is it going to look like in 100 years? Will there really be PhDs in Nietzsche who aren't capable of talking about any other stream of philosophy? Psychologists whose entire area of competence is in pre-cocaine Freud? English PhDs who are only familiar with the scholarship surrounding La Belle Dame Sans Merci? And how can this be halted?
Posted by: Paul Gowder | Sep 18, 2005 4:05:51 PM
All I can add is that a person two years out of law school is usually seen as a second year associate in legal practice, and when practicing lawyers think of second year associates, no matter where they graduated in their classes ... I must say they generally respect PhDs more.
Posted by: Stephen M (Ethesis) | Sep 18, 2005 1:09:25 AM
Yes, of course, there's no such thing as a "PhD in Nietzsche." But the point is that a PhD in Philosophy (or Econ or History or whatever) does not and cannot study all aspects of those fields equally. An Econ PhD who primarily studied international trade relations might not know any more than a JD about Coaseian theories of the firm. A Philosophy PhD who primarily studied ethics might not taken any more than one or two survey courses in philosophy of mind. (Correct me if I'm wrong.)
As for Leiter himself in particular, if he had one area of specialization in legal philosophy, that's great -- but it's also not intuitively obvious that someone who wrote a dissertation on Nietzsche would have also had such a specialization (as opposed to any other field of philosophy). As well, did Leiter study legal philosophy in his PhD program with the same intensity and depth as if he had written a dissertation on legal philosophy?
Again, the only point is that a PhD in "philosophy" or "economics" doesn't necessarily indicate that the person knows all that much about dozens of sub-fields that are outside his own dissertation. At most, it probably indicates that the person has absorbed various habits of mind, i.e., that he is familiar with how much study it really takes to understand a particular subfield. The PhD who studied international trade relations might not as readily assume that because he read Coase and Calabresi, he is therefore prepared to contribute to that subfield.
Posted by: Niels Jackson | Sep 16, 2005 12:11:57 PM
Re: Niels Jackson's odd remark: my PhD is in philosophy, not Nietzsche (there is no such thing as a PhD "in Nietzsche"); my dissertation was on Nietzsche's moral philosophy. When I went on the philosophy teaching market (simultaneous with law, which made for a busy year!), my "areas of specialization" (as they are called) were (as I remember) 19th-Century German Philosophy, Ethics, and Philosophy of Law.
Posted by: BL | Sep 16, 2005 7:13:32 AM
If a lawyer confined their claim to expertise to that of process, sort of like expounding upon the conceptual merits of the scientific method, then they would crawl back into their little hole rather than use (bootstrap) their knowledge of process to hammer other areas of study.
PDXNAG BlogNote on Hessian Trainer note in: Conglomerate Blog: A Little Legal History
Is there any lawyer that would argue that process is more significant to results and actual practice, practice for personal gain, than any other consideration?
Judge Posner is the only writer that I presently respect for writing on the interplay of economics and law. The rest of the folks are like clumsy resource allocation minions in the economics department of the old USSR but wearing the hat of lawyer instead; it has become that absurd, it is more absurd than . . . (I am at a loss for finding something comparable).
Posted by: ron ledbury | Sep 15, 2005 3:15:46 PM
Niels: while I agree with your general point, most American PhD programs have distribution requirements that ensure at least a familiarity with the general issues across the field. I'm sure Steven Levitt knows more about macroeconomics than I do, his protestations aside. Likewise, anyone with a PhD in philosophy can be expected to know their way around ethics, metaphysics, and epistemology more than your average J.D. even if they did philosophy of science, anyone with a PhD in political science can be expected to know their way around international relations, political theory, american politics, etc. more than average J.D. even if their thesis was about comparative China/Greenland politics, etc.
Posted by: Paul Gowder | Sep 15, 2005 1:37:28 PM
Lost in all of this is the fact that a PhD doesn't necessarily indicate any expertise outside of the person's specific area of research. Steven Levitt, the celebrated economist, almost makes it a point of pride that he knows nothing of macroeconomics. Or, more germane to the original post that launched this topic, does a PhD in Nietzsche indicate anything whatsoever about the holder's ability to do legal philosophy? I doubt it: If Leiter is qualified to talk about Dworkin/Hart/Fuller/Raz/etc., it probably isn't because of his training in Nietzsche. It's because he has read those authors on his own.
Posted by: Niels Jackson | Sep 15, 2005 1:19:53 PM
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.
Which really agrees with
In those cases, the PhD training is essential
Note "the PhD training" not the degree.
Posted by: Stephen M (Ethesis) | Sep 14, 2005 11:52:35 AM
Since she agrees with you ... but her point is excellent as to how it takes about ten years to master something. ( http://blog.qiken.org/archives/2005/09/skill_and_impat.html for those looking for the link).
Her post made me think about a law professor four years out of a bachelor's program vs. a second year associate. What would you let a second year associate handle, unsupervised? Would you trust them as lead counsel on an appeal?
Some very interesting points, well worth the thought, both by you and her.
Posted by: Stephen M (Ethesis) | Sep 13, 2005 11:05:41 PM
I like the weird Michigan law student's blog too much to quarrel with her further!
Posted by: BL | Sep 13, 2005 1:08:14 PM
Many of the comments here primarily address the question of whether someone with a law degree but lacking a Ph.D. in another field, such as economics, can make a significant contribution to the field of economics. Since court opinions are written by appellate court justices who generally do not have Ph.D.'s in the field of economics, it is almost essential to justice that someone without a Ph.D. in those other fields can make a significant contribution to the development of justice in the context of those other fields.
Moreover, if economists (and people from other fields of study) cannot speak capably on the subject of the law -- and thus, the subject of what is justice in the context of their own field -- it may be questionable whether the field of law is actually producing justice in society as a whole. It is much of the mission of lawyers outside of the academic world to make another field of expertise understandable to juries, judges, and appellate court justices. It is not only part of our function to enable people without Ph.D.'s to become competent in understanding the legal issues, but also part of our function to enable appellate court justices to become sufficiently competent in fields other than the law that they can capably speak to what is justice in cases involving those fields.
There are two interestingly related articles posted September 10, 2005 on Zenit, discussing the related topic of whether political philosophy is inherently interdisciplinary. The articles are a 2-part interview with Fr. James Schall, concerning his book, "Roman Catholic Political Philosophy," 2004. Fr. Schall states the following, an interesting parallel to the discussion here:
"When it comes to practical matters of politics and economics, most things such as laws and policies could be otherwise, even though we must select some reasonable way to act. This very complexity cautions us not to give more certitude to something than its subject-matter allows, as Aristotle remarked in the first book of the "Ethics." . . .
"Today, political philosophy is one of the few areas in which all things come together and must be sorted out. To understand political things we need to understand history, religion, ethics, science, manners, and all pertinent aspects of culture. Yet, politics looks at what is to be done but done for a good."
This should apply equally to the field of law as to the field of political philosophy. Indeed, it is in the law that the practical effects of political philosophy are most immediately felt, in the form of judicial decisions affecting day-to-day life. It not only is true, but essential to the functioning of our legal system, that a person can speak capably to a field in which he or she has no Ph.D. The question is not whether such a contribution can be made, but rather the nature of the contribution. Those who overlap the legal field and other fields make their most profound contribution to an understanding of that area of overlap -- ethics, justice, and practical social implications.
Here are url's for the 2-part Fr. Schall interview:
Part I: http://www.zenit.org/english/visualizza.phtml?sid=76305
Part II: http://www.zenit.org/english/visualizza.phtml?sid=76307
Posted by: Teresa Polk | Sep 13, 2005 9:20:51 AM
"Ph.D.-level knowledge is a necessary, though not necessarily sufficient, condition precedent for making a significant contribution to an existing field and/or mapping out an arguably entirely novel field, whether or not such field comports rigorously with [Professor X's] somewhat lengthy definition of 'interdisciplinary'; and a Doctoral Bovidae-Integument be a sufficient (usually), but not necessarily necessary, condition precedent for having said Ph.D.-level knowledge."
QED
Posted by: Jon Burdick | Sep 13, 2005 8:17:11 AM
On the two fields thing ... what about dissertations which are super-macro-interdisciplinary? This here computer program legally encrypts and steganographizes a semi-searchable database containing all of the many characters (some real names, some pseudonymic) in the embedded novels and film script which are poetically and graphically presented in the web sites (also contained in the dissertation CD) in what may be termed some sort of philosophic, sociologic and historic tour-de-force as it were, concealing as it does some arguably important mathematical and scientific discoveries understandable only by those who also get the maddening puns splattered throughout as a data obfuscation mechanism?
Posted by: Jonathan | Sep 13, 2005 12:03:07 AM
DB wrote:
"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.)"
In legal history, there is certainly a related problem. Most Ph.D. legal historians without law degrees seem to struggle making sense of legal materials and legal culture. I think that the more technical the field, the harder it is for an amateur to do well (and history is a less technical field than law).
On average, amateurs are at a disadvantage working in other fields (having been an amateur working in other fields myself), but they are more at a disadvantage the more technical the other field is. For a field that is truly interdisciplinary, such as legal history, either side is at a disadvantage on the other's turf.
But these and other generalizations are merely that: generalizations, rising almost to the level of stereotypes. The typical recent economics graduate from a good econ program should be able to do some things that Posner can't, but the likelihood that the new grad will do cutting edge economics over the next 10 years is certainly less than that Posner, even though he is quite senior, will do cutting edge economics over the same period.
Although I don't want to add a name to the mix, the person whom I consider to be the best American legal historian lacks a Ph.D., though he was extremely well trained by leading historians in college and law school. And his published undergrad history thesis is a recognized classic, as good as the best 2 or 3 of the 60-100 Ph.D. history theses that I've ever read.
Jim Lindgren
Northwestern
Posted by: James Lindgren | Sep 13, 2005 12:00:29 AM
Too bad http://volokh.com/posts/1126493013.shtml and this thread are not compounded for the purposes of comments. Not to mention, I wish Skill and Impatience from Letters of Marque Prawfsblawg is arguing about the value of a PhD. And so this little essay, Teach Yourself Programming in Ten Years, seems particularly appropriate. had posted her essay here.
http://blog.qiken.org/archives/2005/09/skill_and_impat.html
Worth considering in the context of the above.
Posted by: Stephen M (Ethesis) | Sep 12, 2005 8:23:28 PM
Heidi,
I'm currious about your claim- (I can't say I have enough experience to have a fully informed opinion on it) but, I would guess that the skills you mention are essentially the basic gate-keeper skills of some of the sciences- if you don't have these skills you can't make it at all. But, that can't be all there is to their PhD programs, can it? Most disciplines have a set of gate-keeper skills, but to really do work in the field you need to be able to go beyond that. Is it really the case that there are lots of people who leave PhD programs in the sciences before the PhD (and especially before they are nearly done with a disertation) who have all the skills they need to really be contributing scientists but who dont' finish? That would be surprising, though I guess it's possible. My guess is that you and Leiter might be using the term "skills" in a slightly different way. (Not much turns on this for the larger discussion, which seems to me to be pretty badly hurt by poor reading skills from several of those taking part, and not worth going on with. Now I'm just currious about what Heidi means.)
Posted by: Matt | Sep 12, 2005 6:44:08 PM
BL, it's pretty stupid (to use your word) to assume that philosophy skills map onto other disciplines, particularly when the obvious counter-example is, um, just about any PhD program where you learn to deal with large amounts of data in an intelligent fashion. There are a (relatively) large number of people who quit PhD programs mid-research, who nonetheless have those skills.
Posted by: Heidi | Sep 12, 2005 5:57:26 PM
Sorry, that was "Everybody Primacy" -- once again, my already-middling punch line falls prey to my worse-than-middling typing skills....
Posted by: Scott Moss | Sep 12, 2005 4:00:16 PM
The "crit's version of modern corporate law" sounds interesting! Maybe I should take that up. My next article: "Everybody Primary"?
Posted by: Scott Moss | Sep 12, 2005 3:58:35 PM
As I understand it, the debate is coming down to this:
(1) Leiter's assertion is true if you define it narrowly enough: only PhDs (A) reliably can do the sort of (B) deeply theoretical (Philosophy) or sophisticated quantitative (Economics) work that (C) draws wide respect in that non-law field.
(2) Only (A) certain (perhaps not many) non-PhDs can do that sort of work, but (B) many non-PhDs certainly can apply economic or philosophical insights to the study of law, (C) which if it's a good piece could yield insights into not only law but the methodology or state of affairs in the other field (economics, philosophy) as well.
Posted by: Scott Moss | Sep 12, 2005 3:45:13 PM
looking at, for example, this sample issue of the ALEA journal from fall 2004, I wonder if the fetishization of modeling etc. isn't going too far. Some of the articles there seem to use mathematical language to describe transparently obvious conclusions, and/or to obfuscate arguments made under idiotic assumptions.
For example, one article (which I won't direct-link, mindful of Dan's injunction against swipes) creates a dense model, full of arbitrary symbols, which depends on the following highly dubious assumption: "The regulatory agency is assumed to behave as a profit-maximizing firm." That's the first problem, and one has to suppress the natural aversive reaction to a sickening pile of mathematical symbols to see it. That model then argues, as best I can determine, that it is more deterrent to impose sanctions on people where the entity imposing the sanctions can do so with lower cost, except when that entity is taking bribes. (I'm sure it's arguing a little more than that, and I haven't really taken the time to translate the symbols into words, which appear relatively easy to do as they don't appear to depend on any higher-order math operations...) The word here is "duh." A quick and dirty bit of game theory would seem to be more than sufficient.
Another article does a bit of data spadework relating to alcohol phohibition and cirrhosis which is surely a valuable contribution, but does not appear to require anything whiz-bang in the nature of statistical analysis. Indeed, I think an undergraduate could probably do those bits that involve the statistics.
A third piece contains neither (heavy) formulas nor regressions -- in fact, it seems to be basically Posnerian in its approach -- yet seems entirely competent to at least my non-economist skimming eye, plus it did get published in said peer-reviewed journal.
A fourth piece also contains no formulas and no regressions. And it's about corporate law! And it got into a peer-reviewed journal run by an organization that Kate swears by!
This admittedly nonscientific sample (plus I haven't done any regressions!) at least makes a very quiet suggestion that maybe one doesn't need to fill a page with functions or do the sort of regressions, ahem, that would make Freud green with envy (and there's my pun for the day), in order to sufficiently contribute to L&E scholarship to make those peer reviewers happy...
Posted by: Paul Gowder | Sep 12, 2005 3:36:55 PM
Well, I will only add that I doubt Stephen Bainbridge, Jack Coffee, or Larry Ribstein think they are doing the "crit's version of modern corporate law."
Posted by: Matt Bodie | Sep 12, 2005 3:09:20 PM
Kate,
That definition works for "law and economics", but not at all for "corporate law." Acceptable to ALEA is a pretty good working definition for the former, but not the latter. Most obviously, much of the work at ALEA is other substantive fields, not corporate law. More to the point for this thread, much corporate law goes on beyond the bounds of ALEA. This past weekend I was at a conference run by the Journal of Corporation Law honoring Bob Clark. Many of the top people in the field were there. A few of the papers could perhaps have been presented at ALEA, but most could not. In her welcome, the Iowa dean noted that anyone who has been on an appointments committee recently and either decided who to call for recommendations or who to consider as laterals would know that the room contained a big chunk of the relevant people. That's the coin of the realm for legal scholars: who places in prestigious publications, who gets cited, and who gets jobs at the best schools. A growing fraction of those people have serious economics training, but a large fraction do not, at that's true even among junior scholars. We seem to have reached a point where we are just talking past each other, but the ALEA-based definition simply won't do--not even close--when it comes to defining corporate law from the point of view of scholars based in law schools.
Posted by: Brett McDonnell | Sep 12, 2005 3:07:42 PM
Brett: to answers your points, I'd have to make more specific comments about other people's work than this forum allows. We'd have to take it outside if you insist.
Posted by: Kate Litvak | Sep 12, 2005 3:06:44 PM
Matt: it's defined that way by the people who run the American Law and Economics Association. I pointed to the ALEA program in my first post in this thread. Everyone is welcome to ignore all of this and join the crits' version of "modern corporate law" instead.
Posted by: Kate Litvak | Sep 12, 2005 2:47:34 PM
At the risk of making a totally uniformed observation, there is a split between PhD training, and PhD knowledge. It seems unreasonable to assume that without a PhD, a person cannot have the cognitive ability to do "cutting edge" work (They fail to understand). It seems far more reasonable to say that a person without a PhD might be far more likely to make mistakes of form or mistakes of missing research (The didn't read Professor X's book on the subject).
There also seems to be a causation/correlation issue here. People who are really into economics/philosophy/history and really want to make a contribution, are more likely to get a PhD.
Posted by: bitterman | Sep 12, 2005 2:25:54 PM
Kate:
Just to echo Brett’s comments: your statement that certain legal scholars “publish in serious peer-reviewed econ journals, [are] treated with respect by senior finance scholars, [are] invited to present at prestigious finance conferences, and hold teaching positions at top b-schools” is a positive one. Your statement that “modern corporate law scholarship requires *that* kind of integration with the finance/economics scholarship” is a normative one. I suppose the statement that “vague chatter about markets, efficiency, ‘stakeholders,’ and ‘bargaining power’ is now flatly dismissed” could be a positive one, but it’s written in the passive voice to avoid the obvious question: by whom?
And just to be perfectly clear, I am in no way “dismissing” the increasing mathematical/econometric/empirical bent of the law and economics academy. I’m just arguing with your attempt to dismiss everything else as “not modern corporate law scholarship.”
Matt
Posted by: Matt Bodie | Sep 12, 2005 2:24:50 PM
Kate,
I think that Matt's got you on this one. If your claim is about corporations-related law and economics, you're right. There are only a few non-econ-Ph.D.s that economists will take seriously. But you make a claim about "corporate law scholarship," not just corporate law and econ. That is a much broader claim (broader than Brian Leiter's, as I understand it), and it is completely untenable. I could easily triple Matt's list of names. You attempt to reply by saying that some of those folks are being more quantitative. Yes, but that won't do it for you. First, some of them are not. Second, you mention enough that are that you seem to have run out of wriggle room--you said there were no more than one or two beyond your list of three, but now we're well beyond that. Either going quant is easier than you imply, or you are implicitly questioning the value of some of the quantitative efforts of these folk. Either way, I think that the claim that modern corporate law scholarship (not just law and econ) requires econ Ph.D.-level quantitative skills is absurd--dozens of the best people in the field today lack those skills, and yet are making great contributions.
Posted by: Brett McDonnell | Sep 12, 2005 2:17:12 PM
How about one proposition, and just one, directly related to Generalist's assertion:
P1. People with only limited knowledge in a cognate discipline can nonetheless produce work that will be useful to legal academics, drawing on that cognate discipline. This is accomplished by suggesting ideas, approaches and directions of inquiry that may be new in their application to the specific legal problems considered, if not new to the cognate discipline itself.
Is P1 true or false? Will anyone defend it or refute it? Does it have a champion?
Subsequent propositions relating to the definitional issues that Daniel raises seem to be secondary to that question.
Posted by: Paul Gowder | Sep 12, 2005 2:07:30 PM
Mike’s comments demonstrate why it is important to get some clear definitions in the terms of this debate. In my post and comments, I have been trying to pin down a meaning for “competent cutting edge interdisciplinary work.”
1. It seems to be agreed by many that we should not focus solely on whether somebody has a particular credential, such as a PhD, but on whether their work demonstrates that they have the appropriate background and knowledge of the discipline in which they write.
2. It is true that PhD training (whether with or sans the actual degree) makes it much more likely that a person has the requisite knowledge and background.
3. PhDs in particular fields are more likely to create scholarship that will be taken seriously by other scholars in those fields. A PhD or a significant amount of PhD-training is not "essential" in this regard, but in a high number of cases, those with PhDs/training are more likely to create such scholarship. It is not true that those without PhDs/training are incapable of creating such scholarship.
4. However, none of the above statements necessarily mean that those with PhDs are better able to do "competent cutting edge interdisciplinary" work. A key unresolved issue is what exactly "competent cutting edge interdisciplinary" work means.
5. Regarding the meaning of "competent cutting edge interdisciplinary" work, we need to specify the kind of contribution that is required. How profound must the work be to be "cutting edge"? What does it mean to advance a field? Must one come up with a new theory? If "cutting edge" is defined at too high a level, then most PhDs will be out of luck too!
6. Perhaps we can cut out the "cutting edge" requirement and focus on the "competent" requirement. Perhaps a more modest claim is that the work must make a modest contribution. But this leaves open the issue of whether the contribution must be to law or to BOTH fields.
7. If the contribution must be to BOTH fields, then it is true that PhDs might be more likely than JDs to contribute to their non-legal field, but it does not mean that they are more likely to contribute to the field of law. If a PhD is writing about something that only those with PhDs in that field can understand, then it might not be understood by legal scholars, and its contribution will register more in that other field. Under a definition of "competent interdisciplinary work" that involves contributions to BOTH fields, such work would not be considered good "interdisciplinary" work. It might be great work in that other field, but is it good interdisciplinary work?
8. In contrast, suppose we define "competent interdisciplinary work" as work that (a) draws from another discipline competently; and (b) makes a contribution to legal scholarship.
The reason that I proffer this definition is that we're talking about interdisciplinary *legal* scholarship, and so perhaps the metric should be whether it contributes to legal scholarship. A competent interdisciplinary work might, for example, take existing insights from one field and apply them to the law. Brian appears to say that excellent JDs can do this, and he seems to limit his claim about the necessity of PhDs to the ability to make contributions in the other field. But if interdisciplinary work is defined as I define it above, then Brian’s statement should be revised to no longer use the term “interdisciplinary” and say more directly that those with PhDs are more likely to make contributions to their non-legal fields than JDs. This is a very narrow claim, and it is relatively uncontroversial. I’d agree to this very narrow claim only in so far as it is not cast in absolutist terms (and Brian has clarified that he is not making a more absolutist claim; thus, although having a PhD or PhD training isn't "necessary" or "essential," it is extremely useful and important).
9. My problem is when Brian’s claim is expanded to speak of "interdisciplinary" work. My objection to his claim is that it purports to be much broader than the narrow claim I stated above. If one agrees with my definition of interdisciplinary work in point #8 above, I don’t think that Brian’s expanded broader claim stands up. This is because Brian's own statements indicate he believes that excellent JDs can competently apply insights from other fields to law. Our dispute, then, turns on the meaning of "competent interdisciplinary work."
This is why it is important to pin down more precisely some of the terms in this debate.
Posted by: Daniel Solove | Sep 12, 2005 1:36:40 PM
I have a master's degree and a JD, but lay no claim to great expertise about anything much. But here's my defense of generalists: in this ever-more specialized academic world, we need some people who don't have tunnel vision. I know a little about a lot, and don't fool myself that I know a lot about a lot. I'm at a top ten school and frequently listen to job talks, workshops, etc, at which it strikes me that the presenters know so much about so little that their work borders on the absurd - it's simply lost its moorings, and has become part of an internal conversation relevant to four other people on the planet. No doubt they're rigorous- but to what end? What's it all for?
My own work probably isn't too rigorous. But what I do try to do is... start conversations, I guess. I ofetn pull in material from other disciplines when and if it seems to me to enrich a discussion. "Only connect," said Forster, and I do believe that making connections between multiple disciplines (not just between two, or within one) is important if one wants to advance any discourse at all. I never think I have the last word on anything-- I recognize that my work often raises more questions than it answers-- but I think, I hope, that when I do a workshop almost everyone in the room hears something that makes them think, "huh, that's interesting, I never thought of that." I have had people come up to me and say "I think you're wrong about X and Y but you sid something really interesting that never occurred to me before, and I'm going to follow it up in my own work."
Maybe a modest achievement, but one that I think is useful. If we stop being able to talk to each other-- if our areas of specialization become so rarified that none of us have any common intellectual ground-- I think we lose more than we gain. So this is a plea for generalists. Sure, we'll sometimes get it wrong; sometimes we'll grab onto a half-baked idea from another discipline. But sometimes being smart and being able to make connections the specialists don't see is critical to moving the discourse for everyone, specialists included.
Posted by: Generalist | Sep 12, 2005 1:31:00 PM
I left myself a wiggle space when I said the trio was not exclusive! Paul is in.
Posted by: Kate Litvak | Sep 12, 2005 1:09:56 PM
Kate,
If the proof of the pudding is in the eating, I think you need to add Paul Mahoney to your list. He has at least 2 JFE's that I know of.
Posted by: Mark Weinstein | Sep 12, 2005 1:04:56 PM
Matt: I’ve made a positive statement, not a normative one. That’s what I think the world is, not what I wish it should have been. You can dismiss the increasing mathematization of law-econ and write poems about means of production instead. It’s a free country.
By the way, of the group you mentioned, some are clearly not “modern” (Mel Eisenberg), others aren’t even “corporate” (Warren), and most of the rest are becoming increasingly technical, working with hard numbers and such (Coates, Kraakman, Thompson, Sale, and I could add a dozen more). The trend is clearly for non-techies to get hard technical skills, not for techies to “soften.”
Posted by: Kate Litvak | Sep 12, 2005 12:53:46 PM
I'll make two more short points and then try to let the thread die. One, I'm not convinced we're all talking about the same thing when we talk about "interdisciplinary scholarship." Kate and Brian keep mentioning people who publish in the top journals of two fields. But that's not necessarily interdisciplinary work, as I define it, it's just work in two fields. I think someone could do good interdisciplinary work and never publish anything outside of law (or history, or philosophy) journal articles.
Two, I do think we're not disagreeing at all on the question of whether, all else being equal, it would be a good idea to get a Ph.D. before undertaking interdisciplinary work. Where we (sub silentio) part ways, I think, is what message we each would like to send to those who have missed their opportunity to get such training. I sense that some here would advise such persons: "Don't even try to write interdisciplinary stuff, because it is even more likely to suck than your regular stuff." I believe part of what motivates this is a sense that law professors "get away" with History Lite and other such problematic scholarship, because they are never properly held to account for it. Although I sympathize with this view, I emphatically believe that discouraging interdisciplinary scholarship is the wrong message (if it even is a message; like I said, no one's actually said this). I believe the correct message is "Try, but be aware of the many pitfalls, and do not confuse the praise of your colleagues with actual success in the matter."
Posted by: Bruce | Sep 12, 2005 12:44:22 PM
Well, let me do what lawyers are trained to do.
Brian Leiter made the perfectly banal point that someone without formal training in a field that requires 5-8 years of intense study will almost always write sophmoric pieces. Doesn't the burden of proof shift of Solove et al. to argue that he's wrong, since it is less controversial to say that 5-8 years of formal training are needed to do good work. After all, I haven't heard anyone say that PhD programs aren't valuable, or that they're too long. Thus, we have to accept that what PhDs learn takes years of of time and study.
Lawyers, if trained to do anything, are trained to recognize who bears the burden of proof; and then to marshal evidence necessary to meet that burden. Solove et al. bear the burden of proving that a PhD is unnecessary, since that is the more controversial proposition. I have not seen the burden of proof met. Indeed, I wonder if the burden of proof can be met, given that the commentators here are only able to cite to a few exceptional non-PhDs doing cutting edge work. If that's the best you got, then Leiter clearly wins this argument - if for no other rason than for problems of proof.
A related point: If any group of people are credential whores, it's law professors and lawyers. It's just amazing to me that such a credential-obsessed group is willing to toss aside this obsession when they lack a certain credential. Well, it's not amazing, but it is decidedly ironic.
Posted by: Mike | Sep 12, 2005 12:28:55 PM
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
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
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
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
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 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
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
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
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
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
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
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
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
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
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
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
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
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
I only hold a J.D., so I'm not qualified to comment.
Posted by: Strange Doctrines | Sep 11, 2005 11:57:46 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
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
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
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