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Tuesday, October 11, 2005

Should a JD be a Prerequisite for Law Teaching?

I've been getting unexpected comments on my Drezner post.  My point was simply that if one had a JD and a PhD (as I do), one might choose law teaching because tenure standards are -- all things being equal -- less severe in the law schools.  Drezner's tenure denial made this point salient because his record of publication, mutatis mutandis, would basically entitle him to tenure in most law schools.

But I made my point in a vague enough way that social scientists -- presumably without JDs -- have suggested that they are ready to take appontments in the law schools . . . if only the law schools would hire them.

These comments raise an interesting and quite difficult question:  Should a JD be a prerequisite to law teaching?  We often ruminate on the value of PhDs for law professors, but we rarely pause to think about the value of the JD in law teaching. 

We all know that there are some examples--very fine scholars and law teachers--who have bypassed the JD and been given law school appointments.  And perhaps in the rare case, it is appropriate to allow a scholar to bypass the JD.  But, tentatively, I really do think the JD should be a prerequisite to teach JD students: we are training lawyers to perform a particular function in society and it seems to make sense to me to make sure that those who teach our future lawyers have been acculturated into the profession.  I can see counter-arguments (and I invite you to express your outrage at this monopolistic and oligopolistic perspective in the comments); but my instinct is that a very sound purpose is served by presumptively excluding from the profession those who never bothered to get JDs.

Posted by Ethan Leib on October 11, 2005 at 07:58 PM in Life of Law Schools | Permalink


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JT and others,

Enough with the moral sanctimony about the uselessness of law school transcripts and the benefits of pre-law prof publications. Everyone understands that previous scholarship is the best way to predict future scholarship. No one -- at least no one on this site -- disagrees that scholarship is the most important qualification. However, there are other qualifications that can serve as signals for who will be a good law prof and there are a number of arguments for the importance of law school in law teaching. I'm going to just a list a few.

1. Doing well at research in related fields is not the same thing as producing legal scholarship, especially as the field diverges from the law. An international relations phd may have interesting things to say about international law, but also may not. Even if they are great at international relations.

2. Doing well on law school exams does tell us something about the ability to deal with legal questions quickly, a skill that is more than a little important in terms of teaching.

3. Law school quality plays an important function in terms of connections. People who do well in law school (and do so at elite law schools) generally (though not always) have good connections at law firms, clerkships etc. This is important to students. Professors who can help students in career oriented ways (especially a young prof who is interested enough to take the time to help) probably help a law school more than a phd/jd quant who cannot.

4. The dirty little secret is that doing well in law school isn't that hard, especially for someone of an academic bent. If you have a phd going in and do not outperform 23-year-old future M&A lawyers on torts exams, there might be a problem with you. While doing well at law school might not signal success as a law prof, not doing well might signal something -- a lack of quickness, a lack of ability to be concise, a lack of ability to play and understand the thought games that are part of, for better or worse, law school education.

And that's only the begining of the list. So, yes, we all agree with you that publications are important and phds are great (the more the merrier, I say). But let's not act as if law schools are entirely crazy by recognizing that law school and law school performance also have value as proxies for figuring out who will be a useful and good law school prof.

And please, please, don't use all caps. It couldn't be any more annoying.

Posted by: BuddingProf | Oct 12, 2005 12:38:16 PM

Isn't it just silliness that someone with a strong JD transcript but a weak PhD (or no PhD) often fares better on the teaching market than a JD transcript with average grades but with a stellar PhD? It seems as if law schools are often not hiring (at least at the entry level) for good scholars, good teachers, and, most importantly, good researchers and contibutors to the scholarship. Instead, the most important criteria seem to be how well one did as an undergrad (because this is what helps one get into a top law school) and how well one did on 3.5-hour law school exams. Indeed, isn't it silly that the ones who are often considered the more attractive candidates to be hired as professors -- the next generation of LEGAL SCHOLARS, they tell us -- are NOT the ones who are writing the most interesting and creative pieces and doing the most innovative work (as evidenced in a publication record and/or a stellar dissertation), but are the ones who impressed a couple professors in a 250-word application essay for Yale, could apply contract law quickly and succinctly on a time-pressuerd exam in short paragraphs that were easy for a bored professor to read, and who could secure a clerkship with a judge who seems most prestigious. Thankfully, the standards APPEAR to be slowly changing, but if law teaching wants to be taken more seriously by other disciplines, one change would be for hiring committees to think more seriously about what makes a good professor. Often, it's not just a good pithy-essay-writer and exam-taker. In 95% of the cases, someone with a strong PhD record and OK JD grades should, if the PhD is in a cognate field to his/her future law-related work, trump a stellar JD record but a mediocre PhD dissertation, because he/she is likely much more capable of being a path-changing, discipline-redfining scholar. After all, we should want as professors good SCHOLARS, not simply diligent law students.

Posted by: JT | Oct 12, 2005 2:20:07 AM

One point to second the "law school IS a trade school" argument: at every school except Yale, less than the top 5% (and, at most schools, way, way less) of the students are eligible for going into academia. The splendiforously vast majority of us actually do go into practice, and probably would prefer to be taught by people that actually have some real world experience (in addition to their brilliance).

I get frustrated sometimes by one of my professors -- who is a great professor -- who often throws up his hands and admits "hey, you know, I can repeat what the casebook says here, or I can speculate, but I really only practiced for a year or two, so I don't want to lead you astray here." I do appreciate his honesty, and I actually do really like this professor. But sometimes I would rather have someone who knows a little more real-world info. I can't imagine what I would think if I were taking a class like this from a guy who doesn't even have a JD. (

I do recognize the validity of the above-mentioned point that the non-JD professors usually are few in number and only teach super-theoretical upper-division courses. All I'm saying is, let's keep it that way.

Posted by: Jeff V. | Oct 12, 2005 1:57:31 AM

Thanks for the information- I'd not known that, but it fits with my idea that many professors w/o JDs at law schools have, despite that, some significant legal training. It also doesn't surprise me, given how good Scheppelle is. (Also, it seems Carol Gilligan has retired from NYU, so she's no longer an "active" example. I do still wonder what she taught there, though.)

Posted by: Matt | Oct 11, 2005 11:12:53 PM

My last post of the night, I promise. (I make no promises about tomorrow.) Both of your points are well taken, but I can still say - ok, I admit, from very personal experience - that it's all about pedigree; and I dont just mean hiring top 20 schools. Even with outstanding PhD publishing creds and law review pubs, it doesnt matter. I'm not outing myself over this, but your exceptions have been proven blatently wrong in my study of N=1. I'm guessing that there are more people experiencing this out out there as well.

Posted by: Cosmo | Oct 11, 2005 10:18:30 PM

My last post of the night, I promise. (I make no promises about tomorrow.) The points are well taken, but I can still say - ok, I'll admit, from very personal experience- that it's all about pedigree; and I dont just mean hiring at top 20 schools. Even with outstanding PhD publishing creds and multiple (good) law review pubs, it doesnt matter. I'm not outing myself over this, but your exceptions have been proven blatently wrong in my study of N=1. I'm guessing that there are more people experiencing this out out there as well. Cosmo still says that it's all about the good old ivy league club (actually, top 1--15 club).

Posted by: Cosmo | Oct 11, 2005 10:16:56 PM

NB, Kim Scheppele does not have a JD, but she "went to law school." She just did not finish the degree, though I believe she spent most or all of three years before shifting into a PhD program.

Posted by: lawprof | Oct 11, 2005 10:12:56 PM

I'll agree that law schools should value scholarship over pedegree, but want to insist again that it's not irrational for law school to demand specifically legal scholarship from potential faculty. The draw of teaching in a law school are obvious- higher pay (often significantly higher), sometimes lower teaching loads, often much easier tenure, often more research money and the like. Who wouldn't like those things? But, if one's scholarship isn't going to be, at least in some fairly straight-forward sense, _legal_ scholarship it's unclear why a law school ought to hire such a person. The converse is also true. To take another example from Penn- Amy Wax is both an excellent teacher and legal scholar. She also has, in addition to her JD, and MD. But, it would be very very unlikely that a med school would hire her, even as a joint appointment, since at least in the last several years nearly all (and perhaps all) of her scholarship has been devoted to legal issues that are at mostly only very modestly related to the interests of a medical school.

Posted by: Matt | Oct 11, 2005 9:59:24 PM

Well, okay, maybe I'm actually wrong about this, at least in part. First point: law schools do (unjustifiably) tend to value pedigree over publication, though this is changing a bit as more schools require pre-hiring publication. And my comment that Drezner would walk into a top school is based in part on his pedigree. Second point: I've seen the law teaching market from both sides in the past few years, and it seems like JD/PhDs have been doing very well. You suggest that my perspective may be wrong, or at least incomplete. I wonder what it is about some JD/PhDs that has caused difficulty on the market. Maybe Matt's comment addresses part of it, if the candidates haven't written on legal stuff. Also, part of it might be relatively weak JD credentials paired with good PhD credentials, which I could see being a problem on the law teaching market (as silly and unjustified as it may be). Of course, the reverse -- strong JD, weak PhD -- doesn't seem to be a problem at all on the law teaching market.

And no hard feelings whatsoever.

Posted by: Ben Barros | Oct 11, 2005 9:45:13 PM

To Ben's comment:

Nuts? First, let me clarify what I said: I did not say that Drezner with a JD couldn't get a job in a top law school. My claim was that a PhD/JD with Drezner's publishing record could not get a job at a top law school (or many law schools for that matter). Drezner has top 5 school degrees - many PhD/JD's do not, but *do have equal or better publishing records* - and they aren't hired by law schools. Let's just be careful about our claims. If what we're saying is that pedigree matters then let's say it - it's apparently not about publishing or scholarship.

With that rant over, there's a soft spot in my heart for the points made here about the value of a law degree. Early in my soc sci career I was criticized on a conference panel (nothing personal, just wrong place and time) for being part of the problem of quantitative analysis of courts and law. The person was a well known non-JD con-law scholar who stated that members of the panel doing quant work "couldnt even read the cases." Ironically, two of us were JD grad students - each of us had passed our state bar and litigated cases.

Anyway, no hard feelings I hope. I do stand by my concern over law schools' failure to value publication and scholarship relative to pedigree.

Posted by: Cosmo | Oct 11, 2005 9:04:29 PM

Okay, in light of Matt's post I'll change my opinion to "you give Drezner a JD and some actual law-related academic interest, he'd walk into a top law school with ease." Someone has to teach these lawyers how to be lawyers.

Posted by: Ben Barros | Oct 11, 2005 8:43:21 PM

Um, law schools are trade (or at least professional) schools, however much legal academics don't like to admit it. We might have grander ideas about where our scholarship is going, but our job is to train lawyers. But "law schools are reluctant to hire JD/PhDs who have records similar to Drezner's record"? That's nuts. If you give Drezner a JD and he'd walk into a top law school with ease. Joint JD/PhDs are very hot on the teaching market, and very few have the non-law academic credentials that Drezner does.

Posted by: Ben Barros | Oct 11, 2005 8:38:01 PM

At most of the top law schools there are one or two faculty memebers w/o a JD. Sometimes these professors have done a one-year law degree/certificate of some sort (such as Jules Colemen at Yale, who did a one-year MLS at yale. I believe Arthur Ripstien at Toronto did the same and that Jeffery Murphy at Arizona State did something similar at UCLA) but sometimes they have no formal legal training at all. My impression is that such professors usually teach teach mostly highly theoretical classes. Kim Scheppele, when she was at Penn, for example, mostly taught comparative constitutional law from a sociological perspective and things like that (She had no law degree but a PhD in sociology from Chicago). I have no idea what Carol Gilligan teaches at NYU, but I really doubt it's torts or contracts. My point is just that when people w/o formal legal training are hired at law schools they tend to teach quite specialized and usually highly theoretical classes. Since there is a low demand for these there's also a low demand for such teachers. This seems unsurprising to me, and I don't mean it to be an objection to Ethan's point- just an addition. To Cosmo's point my impression is that law schools are often quite reluctant to hire anyone, even JD/PhDs, who do not show significant evidence of specifically legal (even if interdisciplinary) scholarship. So, when a JD/PhD does work mostly or completely in her PhD field w/o much evidence in specifically legal scholarship it will be hard (though not, of course, impossible) for her to be hired by a law school, at least if she is not already a star of some sort (Gilligan and perhaps Martha Nussbaum come to mind here.)

Posted by: Matt | Oct 11, 2005 8:30:32 PM

No, you misunderstood my post (quite reasonably, since I didnt clarify). I'm saying that law schools are reluctant to hire JD/PhDs who have records similar to Drezner's record. Again, law prawfs - put your money where your mouth is - if you cant even do this, then why would we expect you could hire well published scholars w/ just PhDs? The Pooka's post is on point - until you recognize good interdisciplinary publishing, legal academia resembles a trade school.

Posted by: Cosmo | Oct 11, 2005 8:14:35 PM

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