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Monday, July 09, 2007

PH Deification

So everyone knows (for some data now a couple of years out of date, see Lawrence Solum's blog, please let me know of more recent data)  that a growing portion of law school teaching positions, especially at top fifty or so law schools, are going to people with those three special letters following their name.  Will the PhD soon become a virtual requirement for law teaching, and is that a good thing?  As a purveyor of PhD's to potential law professors, through the JSP program, my own interests may be in that trend, but I do not expect the PhD to become a practical requirement, nor do I think it would be a good thing for such a norm to evolve.

Law school faculties are more diverse then ever before in terms of the pathways teachers take to their vocation (or one hopes thats what it is).  It used to be driven by a series of highly formal performance indicators like class rank, editorship of the law review, choice clerkship, etc.  This assured that those who were eligible for teaching careers were among the most intellectually agile members of their generally bright classes.  But it did not select for scholarly ability, or for teaching with a strong connection to the world of law in action.  It also meant that an arbitrary grade or two in the first year could virtually doom an academic career. 

I think a quantitative study of a time series of hiring data across a bunch of law schools would show declining predictive value to all of those variables (does anyone know if there is a such a study, I haven't seen one).  All in all thats a good thing.  People with those credentials can be competitive for law teaching jobs, especially if they can find time to do some interesting research, but they have to compete with others who threw themselves into a sustained research project, or an engagement with the practice of their passions.

Having a PhD requirement (defacto or dejure) would nullify much of this positive development toward a more open and competitive environment for selecting law professors.  Law schools who used to just interview Supreme Court and DC Circuit clerks, now routinely go to the AALS and interview a far wider assortment of candidates (although that pool has its problems as well, especially in racial diversity, but thats for a different post).

The academic departments of universities and colleges were also once more open in their selection of professors (although it was a much smaller pool).  Before the 1960s, most such departments did not require a PhD in their discipline for professor positions.  Some candidates had earned such degrees, but they had to compete with high school teachers, military officers, ministers, lawyers, and others from the more or less learned professions.  Of course the emergence of the PhD requirement went along with the extension of tenure, raises in salary levels, and the hardening of  scientific or scholarly methodology, among other good things.  But even today,  departments of sociology and political science, for example, might be even better if newly minted PhD's in those disciplines had to compete with union executives, community organizers, or campaign managers for their jobs.

Having said all that, it will not surprise you to know that I believe getting a PhD in a social science, humanities, or interdisciplinary program, with a sustained focus on law, legal institutions, or discourse, is an excellent way to prepare for a career in law teaching.   In my next post I'll try to explain why (hint: its the  only reliable way to access a culture of mentoring and individualized supervision ).

Posted by Jonathan Simon on July 9, 2007 at 01:44 PM in Life of Law Schools | Permalink


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Actually medical schools might provide a good model for law. As I understand it, they spend two years studying the basic science of the human body, mostly biology and chemistry. The second two years they get intensive clinical training with experienced clinicians in various fields. Finally, they typically do several years of advanced clinical and sometimes research training with researchers and clinicians.

The law school model might involve a year or two of basic study of law and society, - mostly doctrinal courses interspersed with economics, sociology, political science, and humanities analysis. The new year or two might be a series of rotations through in house clinics and externships. Finally, we might, as they do in Canada, require students to "article" for a year with a judge, law firm, or public advocacy organization. Of course those of you objecting to the steep tuition might not like a 4 to 5 year model.

Posted by: Jonathan Simon | Jul 10, 2007 7:49:20 PM

Someone above raises the point of medical schools. I wonder if any medical school professors would show their faces in public if it turned out that, in hiring a professor to teach future surgeons, they had actually been biased against hiring someone who had actually performed surgery successfully on many occasions.

Posted by: Stuart Buck | Jul 10, 2007 7:34:59 PM

When the long-time practitioner is trying to persuade law professors that she is appropriate professor material, it's the presumption that the ability to have a sophisticated and reflexive view and the ancillary tools has atrophied that is one of the major hurdles to overcome.

Just to play devil's advocate a bit more: The presumption here (and elsewhere) seems to be that a law professor's chief duty is the production of scholarship; and that a (mere) practitioner therefore has to overcome a steep and perhaps unsurmountable hurdle, i.e., to show that he or she is capable of "scholarship" as opposed to (mere) practice.

Why shouldn't the presumption be precisely reversed? As Mr. Rosenthal rightly points out, the overwhelming majority of law students are paying large tuitions (and taking out daunting student loans) to learn how to practice law. Why shouldn't the presumption be that someone who has tried 20 jury trials to verdict (or put together corporate deals, or advised tax clients, etc.) is more likely to be well-suited to the job of a law professor than someone who has merely studied law on an academic level, one-step (or more) removed from anything that law students will ever do for themselves?

Indeed, the analogy to other disciplines may be more revealing than is suspected. In any discipline, someone who has actually practiced the subject is presumptively better-suited to teach about it. Thus, in economics, someone who has actually analyzed a dataset and run regression equations -- who has practiced economics -- probably knows more about the practical and theoretical issues that arise than someone who has merely written about regressions. But in fields like law or medicine, someone who has been a lawyer or a doctor probably knows more about what students ought to know than someone who has analyzed those subjects on a merely theoretical level. In other words, practicing economics can mean doing PhD-type research; but practicing law means practicing law.

Of course, as Mr. Bagenstos points out, this is not to say that PhDs are completely useless in law schools. Many PhDs will have very useful observations, and can enlighten students in many ways. But that merely shows that they could overcome the presumption that I'm talking about.

Posted by: Stuart Buck | Jul 10, 2007 12:12:39 PM

Shouldn't a Ph.D be a liability, not an asset? If you are running a *law* school and want to teach *law* and want your faculty to understand *law*, why hire someone who is really interested in economics or gender studies or whatnot? I still can't understand why law schools seem to hold the law in such low regard.

Posted by: andy | Jul 10, 2007 11:55:18 AM

I wonder if we can reach agreement on the factual predicates. Hasn't the pathway to professor slots at law school narrowed considerably? Over half of those slots are now come from just five or six law schools, right? Isn't that what Larry Solum's stats show? If so, is the original post claiming that it formerly was even narrower than that?

Posted by: John Steele | Jul 10, 2007 11:01:49 AM

To the extent that a candidate's degrees (JD, PhD, or JD/PhD and their prestige value) are often functionally deployed at the appts. committee level as something of a crude proxy for the candidate's "potential for quality scholarship," why not place an even greater premium (and, to be sure, the market reflects this) on the quality and number of actual publications in hand for candidates? My sense is that actual production of quality scholarship is a stronger proxy for the "potential for quality scholarship" than a candidate's various degrees. If our bottom line is scholarship then it follows that scholarship should matter. If, instead, we're more about credential pedigree than I guess I can understand a pre-occupation with degrees.

Posted by: Michael Heise | Jul 10, 2007 8:56:25 AM

As for whether police officers or corporate compliance officers might compete to teach at law schools, even without a JD, its an interesting proposal. The question would be whether they have the capacity for a sophisticated and reflexive view of their own practice worlds, and the tools to unpack that view.

Having just recently written about what it would take to make the jump from the practice to the academy, I think this observation cuts to the heart of it. There's probably a continuum between pure theory and pure practice arts, and the Ph.D. is no doubt a good signal that one has passing familiarity with the former. Whether that leaves the teacher unprepared to deal with the other end of the spectrum is an interesting question. But I think that the difference between, say, a CLE class and a law school class is the introduction of some meta-consideration to the practice matters under consideration, at least to some degree. When the long-time practitioner is trying to persuade law professors that she is appropriate professor material, it's the presumption that the ability to have a sophisticated and reflexive view and the ancillary tools has atrophied that is one of the major hurdles to overcome.

Posted by: Jeff Lipshaw | Jul 10, 2007 5:27:50 AM

I'd just like to add a few random comments on the contribution, real or perceived, that having a Ph.D. brings to the legal academy. As a J.D./Ph.D. who (very) recently went through the AALS process successfully, I think the important distinction is not really J.D.s vs. J.D.s/Ph.D.s; instead, it's a finer distinction--what type of Ph.D. does a candidate have? Let's assume that the Ph.D. is very relevant to a candidate's research and is not a degree in underwater basket weaving. I think that Ph.D.s in, say, political science and economics are often received very differently than a Ph.D. in my field, which is cultural studies/communications. I believe that this is because the connection between law/economics or law/political science is much clearer (and much more integrated into the legal academy) than the law/cultural studies connection. This is as it should be; the more unusual the connection, the more explanation of a degree's relevancy is in order. This is certainly not to say that the cultural studies Ph.D. is or should be poo-pooed, but simply that its connection to the legal academy is not in all instances crystal-clear. The interdisciplinary revolution we are currently in the midst of is certainly helping to make previously "creative" combinations more standard--but law schools of course will differ in how they plan to integrate interdisciplinarity into their curriculum, and what types of interdisciplinarity they favor.

Personally, I think that a requirement or even a preference for Ph.D.s is largely misguided unless the reason for desiring a Ph.D. stems from some integral characteristic a candidate would likely only acquire (or would most often acquire) through years of graduate study, which would seem either to be a knowledge-based or empirical qualification such as expertise in certain research methodologies. Ideally, a Ph.D. should add something unique to a candidate's qualifications--either in research, or preferably in research and teaching--to be valuable on the job-market.

Also--I know in some instances this is preaching to the choir, but J.D. posted earlier that a statement that law professors should have Ph.D.s would require two doctoral degrees. A J.D. is not the same type of degree as a traditional Ph.D. (one requiring a dissertation) in the sense that the J.D. is a time-served degree and the Ph.D. is not.

Posted by: Jody | Jul 10, 2007 12:43:00 AM

Does Professor Yates really believe that those who obtain a PhD learn as much about the skills necessary to practice law than they would have learned had they, say, actually practiced law? I hope not.

Professor Bagenstos, in contrast, is onto something. Having a JD is certainly no gurantee of an ability to prepare students to practice law. Knowledge of doctrine is a necessary but far from sufficient condition for success in practice, and JDs who teach only doctrine aren't accomplishing much. But surely all those people paying the big tuition are eventually going to demand teaches who can transmit a marketable skill, and law schools are not going to be able to provide it with a bunch of tenured PhD's who know nothing about how to practice law because they were too busy getting their PhDs.

Professor Bagenstos is also surely correct that interdisciplinary work is of great value to many aspects of law, and that PhD's can be of real assistance in this work. That said, current hiring data suggests that the pendulum has swung way to far. How many schools look to hire law professors who have the kind of practical judgment that Professor Bagenstos rightly commends? Yet, shouldn't people with those skills comprise the bulk of a law school faculty? Isn't that what students who intend to practice should want in a law school faculty?

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Jul 9, 2007 9:55:56 PM

Disclaimer: I'm just a li'l ol' JD, who thinks of connection to practice as an important part of my academic identity. But some of the comments on this thread suggest an unjustified degree of complacency about the teaching of law by JD's. If I may be provocative, my experience with a lot of traditional doctrinal teachers is that they have a distinctly un-lawyerly view of legal doctrine -- where much of law practice (even appellate practice) is judgment, many JD profs treat law as a set of rules, and haven't developed or imparted lawyerly judgment aout their areas of teaching. Actually, some research done collaboratively by a JD colleague and a Ph.D. colleague of mine (with another JD and another Ph.D. coauthor) indirectly demonstrated the point. They showed that a computer, using a quite parsimonious model, could predict the outcomes of Supreme Court cases better than could professors in the field who were surveyed. But one group of human beings did better than the computer: lawyers who practice before the Court (admittedly too small a group to permit statistically significant results).

On the flip side, Ph.D.'s can have an awful lot to add to the learning experience of our students. When I was a practicing lawyer, I worked on a number of cases that involved complex statistical proof. A law-and-statistics class, taught by a Ph.D. quant person, would have been enormously helpful. Try practicing antitrust law without really understanding economics. Lots of sociologists/psychologists/economists have studied jury behavior and developed insights that would be particularly useful for students to learn if they are preparing for a trial practice. I could go on almost forever. People with JDs can learn and teach these things -- I certainly try to bring various kinds of interdisciplinary ideas into my teaching in ways that will be helpful to future practitioners -- but it's often going to make more sense to have people with Ph.D.'s teach them. Medical schools and business schools have hired people with Ph.D.'s in other, related fields forever, and there's no reason why law schools shouldn't.

And that's wholly aside from the scholarly mission of law schools, which I think properly includes the interdisciplinary study of law, legal rules, and legal institutions. But that's a different argument.

Posted by: Sam Bagenstos | Jul 9, 2007 9:22:10 PM

I'm not sure if I will go as far as Chris goes in advocating a per se exclusion of non PhDs from pol sci or related social science discipline candidate consideration. I can think of a good number of non PhD law profs whom I would like to have as fellow faculty. However, perhaps Chris wisely sees a slippery slope - the PhD typically assures a certain level of social science training and the ability to publish in the relevant pol sci journals. I think that I'd probably have to see some evidence of such ability (i.e. pol sci journal publications) before taking a non PhD candidate seriously.

On the trend toward hiring PhDs and JD/PhDs; I'm not sure that this trend is necessarily at odds with providing good training for future lawyers. I recall one of the mantras of my law school profs being that they teach people how to think like a lawyer (i.e. analytically, critically, etc.) rather than stressing rote memorization of rules or cases. This is certainly consistent with the skills developed in social science. Moreover, PhDs (and JD/PhDs) typically have gained a good bit of teaching experience during grad school and have had received some mentoring and/or taken classes on effective teaching as well.

Posted by: Jeff Yates | Jul 9, 2007 7:57:38 PM

I suppose the trend of hiring PhD's is likely to continue until the State AGs come after the law schools for consumer fraud. After all, the vast majority of law students pay a small fortune in tuition so that they will acquire a marketable skill; and law schools lead them to believe that they will acquire such a skill if only they write those big tuition checks. Yet, it is now the rage at those same law schools to hire those who have little or no acquaintance with the practice of law and no meaningful ability to transmit marketable skills. One day, however, even without encouragement from the consumer fraud laws, I suspect that the market will move against this approach to hiring that ignores the needs of those whose tuition money finances the cushy lifestyle of the JD/PhDs.

Larry Rosenthal
Chapman University School of Law

Posted by: Lawrence Rosenthal | Jul 9, 2007 6:24:33 PM

"...whether those folks should be excluded from consideration simply because they lack a PhD."

Actually, that was pretty much exactly my point: they *should* be excluded, in the same way that we would probably prefer to exclude non-physicists from physics departments, and non-German-speakers from German departments. To the extent that we arts & sciences types usually justify our existence by teaching undergraduates our respective fields, a terminal degree in that field strikes me as a perfectly reasonable necessary condition for employment (not to mention a great informational shortcut for hiring committees and the like). As a practical matter, it also acts to limit cronyism, nepotism, and other such practices. (I'm not claiming such things don't currently exist, only that the potential for their abuse in the absence of any sort of professional credential requirement is much greater).

All of this is not to say that "practitioners" (that slightly-tinged term PhDs so often use to refer to non-PhDs) aren't both extremely valuable and perfectly appropriate as faculty in medical, law, business, public administration, and other professional programs, where the focus is on teaching specific skills related to a particular profession. But I get the sense that Jonathan would like to think that law schools are somehow something more than pricey trade schools...

Posted by: C. Zorn | Jul 9, 2007 5:39:17 PM

I can see why someone with a Ph.D might be preferable to, say, a union organizer with a B.A. But I think nonlegal academia goes too far in the direction of credentialism. When I was slightly less established in legal academia, I discovered that I couldn't get a job at even the least prestigious college without a Ph.D., despite my J.D., years of teaching experience, etc.

Posted by: Mike Lewyn | Jul 9, 2007 5:01:56 PM

I do think law schools are different from both social science and humanities departments on the one hand, and from business schools or public policy schools on the other (more on that later). But the point that none of my kind interlocutors seem to have picked up on is not whether it would be good to stock our social science or humanities departments with non-PhD's, but whether those folks should be excluded from consideration simply because they lack a PhD. Robert Park, the founder of modern American Sociology, had I think, a masters degree in philosophy, would he make the interview list at Chicago or Berkeley? Many of the leading English philosophers of the 20th century had little more than bachelors degree (the PhD was viewed there for a long time as unhelpful Germanic import), are they out? What would be the cost of considering candidates without that magic degree if their collected works and experience were impressive to a committee? In the meantime the cost of a union card mentality about PhD's is evident enough to anyone who reads the often repetitive, sterile, and self satisfied articles in our journals.

As for whether police officers or corporate compliance officers might compete to teach at law schools, even without a JD, its an interesting proposal. The question would be whether they have the capacity for a sophisticated and reflexive view of their own practice worlds, and the tools to unpack that view.

Posted by: Jonathan Simon | Jul 9, 2007 4:12:45 PM

C. Zorn rightfully criticizes the statement that "union executives, community organizers, or campaign managers" might qualify to teach in political science or sociology programs. But that does not seem analogous to the question of whether J.D.'s should be teaching law. Even though it's a shorter and less research-focused degree, a J.D. is still an advanced degree in the subject; and so long as law schools don't completely abdicate their mission to prepare students to practice law, most law professors should be lawyers. A statement that law professors should have a Ph.D. is a statement that they should have *two* doctoral degrees.

Don't many/most medical schools have lots of professors with an M.D. but no Ph.D.?

Posted by: J.D. | Jul 9, 2007 4:03:14 PM

I saw someone (can't remember who) make this comment somewhere, and I'll put it forth as a provocative thought: If law professors really want to move into a world of purer academic qualifications and skills, then they should lobby the University to create a "Department of Legal Studies," where they could (1) think and write all sorts of interesting, abstract, and/or rarefied thoughts about legal theory or empirical effects of legal developments or whatnot; (2) teach any students who happen to be interested in such subjects; (3) be paid more on the scale of the rest of academia; and (4) leave the real law students -- i.e., the 98% of students who want to learn how to practice law -- to be taught by law professors who know a lot about law practice (whether or not they can write a dissertation).

How's about that?

Posted by: Stuart Buck | Jul 9, 2007 3:55:37 PM

Another take on Chris Z's point - would this mean that law schools should require JDs to compete on the faculty market with (non JD): police officers, paralegals and insurance adjusters? The rationale is similar - members of each of these professions would provide some valuable and unique insights to the study of law. What's good for the goose...

Posted by: Jeff Yates | Jul 9, 2007 3:50:12 PM

I'm afraid I have to agree with Dr. Zorn's point. The idea that non-PhD folks should be considered for regular academic posts is so very far outside realm of what is considered reasonable that it would take a LOT of explanation to get the proposal taken seriously (and not rudely mocked) by American higher education. Of course, the fact that mainstream professionals would consider an idea unserious doesn't necessarily end the conversation, but it does signify that the conversation is going to be a very long one, at a minimum.

BTW: the type of folks JS lists do sometimes get adjunct positions, and are often included in speciality centers at even prestigious schools - where would DC international relations and public policy programs be without former govt officials? But that's not the norm for regular faculty positions.

Now, that's not the same as saying that PhDs should become an expectation for law faculty. There are pros and cons, and I look forward to JS's take on this.

Still, the only realistic argument is that law schools should be different from some other academic programs (some, but not all -- business schools and many other professional schools often have an openness to non-PhD former practitioners for some positions). However, the argument that other academic programs should relax their PhD requirements is not going to work at all. (Try that out at the faculty dining hall one day and enjoy the food fight.)

FWIW: Like JS himself, I too am guilty of the PhD/JD, and think there's a lot to be said for it.

Posted by: R. Steiner | Jul 9, 2007 3:10:38 PM

"...even today, departments of sociology and political science, for example, might be even better if newly minted PhD's in those disciplines had to compete with union executives, community organizers, or campaign managers for their jobs."

You *are* kidding, right?

(I'm guessing you wouldn't advocate tossing pharmacists and bartenders into the competition pool for chemistry profs...).

Posted by: C. Zorn | Jul 9, 2007 2:15:54 PM

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