How to Design a PhD in Law

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

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

1)      The other-discipline PhD.

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

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

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

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

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

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

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

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

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

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