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Thursday, January 17, 2008
Non-Elite Interdisiciplinary Scholars
Brian Tamanaha has started the conversation about whether non-elite schools should hire interdisciplinary scholars. Here's the summary:
First and foremost, as argued above, there is no evidence that it will make their students better lawyers. Second, it costs a lot of money to go interdisciplinary, and (because non-elite schools are tuition driven) this money will come out of the pockets of the students. Third, their education might suffer if their faculties emulate the elite law school trend toward hiring JD/PhDs with little or no practice experience (assuming a person with some experience in the practice of law has a bit more insight to impart to students about how to be good lawyers).
John Oberdiek and Dan Solove say what needs to be said in response to the claim that this kind of hiring is useless to teaching students at these schools.
But there are two more points to be made. First, Brian's argument proves too much. If he is right about interdisciplinary scholarship, you might run his argument to discourage hiring scholars more generally. That is, what do students care whether their teachers do research and writing? And good research can be expensive to support. Finally, hiring practitioners might be the best way to train our students for practice. The answer to this extension of Brian's argument is also an answer to help explain why he is wrong on his more modest claim about interdisciplinary scholarship in particular. In short, the value of students' JDs (whether at elite or non-elite schools) is often tied up with how the faculty at the school is perceived in the academy and the profession. When faculty are at the forefront of their fields -- thanks to their exciting research and writing (and sometimes their practical and clinical work, too) -- that value for the school translates into enhanced prestige for the students' JDs. So non-elite schools that give up trying to hire the best and most influential scholars they can are likely doing their students a grave disservice (whether students appreciate this fact or not). If the future of being respected as a scholar is tied up with having a PhD, non-elite schools ignore this trend at their peril. Teaching basic courses is not rocket science -- and PhDs are likely to have more teaching experience than pure JDs and practitioners anyway.
Posted by Ethan Leib on January 17, 2008 at 05:24 PM in Life of Law Schools | Permalink
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Comments
Fair point about the circularity -- if you're just talking about what choices an individual school makes, then there is a collective action problem, and the incentive will be to go with the broader trends.
As to your point about my "model" -- my point there has nothing to do with rankings. My point is that people who really want law schools to be more like PhD-style academia should volunteer to have law schools really become more like academia all around (including compensation, likelihood of tenure, and the willingness to take on just a few graduate students and provide them with stipends), rather than conveniently trying to have the best of both worlds.
Posted by: Stuart Buck | Jan 19, 2008 2:50:33 PM
anonprof05:
A careful read of the comments would show that we aren't very far apart at all. I think "non-elite" schools should do both (hire people that give students a real sense of practice and hire people that give students
"interdisciplinary" and scholarly perspectives as well) -- and that that would benefit students (in their educations and in the value of their JDs), as you seem to concede. So you may call the benefits of hiring scholars "overblown" -- but I was merely offering one more consideration into the mix that hadn't been discussed by Brian or his interlocutors.
A few further points: It is not the case that professors rejecting Brian's conclusions are universally "interdisciplinary" scholars and that they are just making claims to "let me do what I want to". This approach to undermining people's thoughts is really quite disrespectful and misses the point: we aren't talking about tenure decisions -- and most of us have already been hired. The discussion is about the future of hiring by non-elite schools. I suppose it is marginally true that I'd like to be surrounded by faculty doing interesting scholarship because I value it. I suppose I care abstractly about all the scholars who won't have jobs if non-elite schools became purely vocational schools. But I also learn a tremendous amount from colleagues whose practical experience can illuminate the study of the law. In any case, whatever my personal preferences, the argument I have offered is student-centered, since that is the dimension upon which Brian started the conversation. For what it is worth, although I have a PhD, for example, only some of my work really falls into this category. And when I support the hiring of PhDs, it is often because I think they have learned a disciplined way to do scholarship with sophisticated tools, not because I really care about the latest "law and" fad.
Finally, the focus only on rising in the rankings is a bit misleading. Non-elite schools that stop hiring scholars and move to a purely vocational model may see themselves fall in the rankings too. And that is a danger for students.
Stuart: There is nothing circular about the argument -- though that would be hoot. The question, as Brian posed it, is whether it is good for students at non-elite schools for their schools to hire interdisciplinary scholars. He said no -- and that it is too costly to be justified. I suggested that there is a cost for students when non-elite schools choose to buck the trend of caring about research. As you are thinking of the question -- in an ideal world where there isn't already a set of constraints created by the hierarchical profession, what would be best -- your answer may seem like a solution. But a university that adopted your model as a singular case may very well see its law school take a dive. That may be a cost worth bearing for the sake of ideological purity. But a cost it is -- and students at the school who supported it might not be getting their money's worth. And that was Brian's primary issue.
Posted by: Ethan Leib | Jan 19, 2008 11:52:23 AM
I want to pull out and emphasize a point others have made. Underlying the arguments put forward by Ethan and other commentators is a claim that goes like this: (1) students benefit from going to a higher-ranked school; (2) hiring more people who produce interdisciplinary scholarship like the kind I prefer, and giving them more time/support to produce said scholarship, will in the long run improve my school's ranking, so (3) students will benefit from my school hiring and supporting scholars who produce the kind of scholarship I like doing. This argument should raise eyebrows from the get-go, since it can be restated as "letting me do exactly what I want to do (ie, produce abstruse interdisciplinary scholarship) will be of great benefit to others (ie, my students and school)." This seems problematic in two ways. First, it implies that a school that invests a lot of resources in encouraging interdisciplinary scholarship will see its rankings and reputation quickly and dramatically improve. Is this really the case? With the exception of GMU, I can't think of a school where this has been the case. Marginal improvement, yes; improvement in the eyes of a narrow set of law professors, yes; but I don't see a change in the kind/volume of scholarship a school produces greatly changing a school's reputation in the broader legal world. So maybe producing a lot more interdisciplinary scholarship won't really help our students (much). Second, it seems to ignore the very real trade-offs such an approach has. Attracting a faculty that is heavily interdisciplinary (with a lot of JD/PhDs) means having a faculty with less practice experience, meaning less able to teach students some of the nuts-and-bolts knowledge a school should teach; pushing that faculty to produce more and more abstruse scholarship means that the faculty has less incentive to give time and attention to students both in and outside the classroom.
Look, none of this is meant to be anti-intellectual or anti-interdisciplinary scholarship (FWIW, that's the kind of scholarship I produce, and I value it). Schools need JD/PhDs as well as JDs with practice experience. Law professors should be active scholars as well as teachers. And even students at lower-tier schools deserve to be intellectually challenged and taught more than just black-letter law. But I do think that that claims like "interdisciplinary scholarship will really help our students" are overblown, and advocates are ignoring the costs of such an approach to our students.
Posted by: anonprof05 | Jan 19, 2008 9:50:42 AM
In short, the value of students' JDs (whether at elite or non-elite schools) is often tied up with how the faculty at the school is perceived in the academy and the profession. When faculty are at the forefront of their fields -- thanks to their exciting research and writing (and sometimes their practical and clinical work, too) -- that value for the school translates into enhanced prestige for the students' JDs. So non-elite schools that give up trying to hire the best and most influential scholars they can are likely doing their students a grave disservice (whether students appreciate this fact or not).
Apologies if anyone else has already pointed this out, but the above seems to be a circular argument. The whole question here is whether the "academy and the profession" should value certain characteristics (PhD-style research) or others (the ability to provide practical training). It's circular to say that they should focus on one or the other just because the rest of the academy values that thing.
Or this:
If the future of being respected as a scholar is tied up with having a PhD, non-elite schools ignore this trend at their peril.
The whole question here, I thought, is whether such a "trend" is justifiable.
I've said before that if legal academia really wants to be wholeheartedly in the PhD-model, then law professors should move over to a "Department of Legal Studies" within the main body of the university, and they should be paid like the rest of academia (i.e., with no compensation for the opportunity cost in giving up practice). Is that what folks really want?
Posted by: Stuart Buck | Jan 18, 2008 10:13:42 PM
I should probably make clear that I don't think hiring PhDs is a bad idea. And I'm all for anything that shows students options other than BigLaw.
I plan to open a solo practice, in a different state, after I graduate. So I really expect the bulk of my clients to not have the foggiest idea what rank Hastings is at - or even know that law schools are ranked. That puts me in a small and underserved group at Hastings, and probably don't represent my classmates' views.
Regardless, the number of vigorous responses this post has received suggests to me that the current format of the law school education is not making anyone happy...
Posted by: Bev | Jan 18, 2008 10:04:47 PM
"Citation rates for legal scholarship in opinions, for example, are plunging. Practitioners and judges alike increasingly see the legal academy as isolated and irrelevant."
That is something I've noticed and a hallmark of modern case law is the way it seems to have gotten away from citations to legal scholarship and restatements and just about anything but citations to case law.
"Let's use our lovable Hastings as an example. Irrespective of your goals, you are better off having gone to a "top 20" school than one that can barely stay in the "top 50". If we devoted all our hiring resources to finding people with "experience" and ignoring the need to be competitive on the scholarly front, your JD would be worth much less -- and we'd much more likely consistently find ourselves marginalized by rankings."
I almost went to Hastings, and I've always been sad to see it not rise in the rankings. That said, the ecology issues of law school instruction are important. Only schools in the fourth tier are free to experiment in any meaningful way with how they teach or the methods they use or the people they hire.
"much of legal practice does not focus on the courtroom"
Indeed, it is amazing how much does not (especially from my perspective, as that is my practice).
"When I was in a rather senior supervisory position in government practice, I hired, supervised, and fired attorneys from schools in all tiers. I frequently found students grossly unprepared for practice, regardless of the tier from which their degree issued"
It would be nice if law schools provided the type of internship/residency training and experience that medical schools or even nursing programs provide.
However, that kind of teaching requires constant writing and feedback from professors. Consider just what it would take to teach a class such as: http://adrr.com/law0/rf6/family.htm
Posted by: Stephen M (Ethesis) | Jan 18, 2008 7:46:04 PM
A couple of comments:
1. I do not agree that this issue turns on what "tier" a school occupies. As I suggested earlier, even the elite firms that fund the top tier law firms are becoming dissatisfied with the amount of training that recent graduates require, and smaller firms and government and public interest firms with lesser ability to absorb training costs are in an even worse position. For that reason, the approach taken by many top tier schools actually puts their graduates at a competitive disadvantage, at least when it comes to government and public interest practice. When I was in a rather senior supervisory position in government practice, I hired, supervised, and fired attorneys from schools in all tiers. I frequently found students grossly unprepared for practice, regardless of the tier from which their degree issued, although the problem tended to be worse among top tier graduates. Perhaps the faculty at top tier schools do not care about the impact of their hiring and curricular decisions on the government and public interest law firms that cannot afford the training costs that elite law schools expect them to absorb. If so, that is much to be regretted, at least in my view.
2. Ethan Lieb is correct to chastise me for focusing too much on what goes in a courtroom, when much of legal practice does not focus on the courtroom. Still, virtually all recent graduates are expected to write and counsel at least some clients, although they are usually taught by professors who spent far little time in practice than is necessary to know much about effective legal writing or client counseling in either litigation or transactional contexts.
3. Mark McKenna suggests that I must advocating a greater focus on doctrine. Not so. Doctrine does change, and knowledge of doctrine alone does not make one an effective lawyer. Indeed, I frequently tell students that knowledge of black letter law is far from the most important skill that a lawyer needs. Instead, what I am advocating (in both teaching and scholarship) is less emphasis on theoretical knowledge and pursuits, and more focus on the issues that actually arise in the practice of law. Just a small example: To read the vast majority of the scholarship from the legal academy (with some important exceptions), one would think that aggressive urban policing entirely delegitimizes the criminal law in the eyes of the inner-city minorities. Those who have actually been to these communities know otherwise -- the residents of inner-city high-crime communities are, by and large, the greatest advocates of aggressive policing that one can find, and those most likely to suffer if greater legal restraints are placed on the police are the residents of these communities. Much of my own scholarship has been dedicated to just this point.
Holmes taught us that the life of the law is not logic but experience. If he was right, those who have spent their adulthood cloistered in schools are ill prepared to teach students what they most need to know about the practice of law.
Larry Rosenthal
Chapman University School of Law
Posted by: Larry Rosenthal | Jan 18, 2008 6:23:47 PM
You know you are doing something wrong when people find you "disgusting" and a "joke" To be fair, I tend to care less when the claims come from anonymous commenters.
It is, of course, true that it is an empirical question whether JD/PhDs in particular will enhance a school's reputation. Still, schools that send signals that they are not interested in scholarship -- and exciting and groundbreaking scholarship -- will be suffering some important costs. Brian is right that we should be weighing costs and benefits in who we hire. But hire we must -- and I wanted to focus on a real, if underappreciated, cost. Sparky is living in some bizarro-world where all that matters is "internal" ranking. That is implausible and absurd. Number one students at Golden Gate compete for jobs against Hastings' top students. The relative weight of the JD is pretty generally a factor in the job market.
Finally, we do a lot to help our students get jobs and raise our rankings in other ways. But we must hire faculty; that is not an optional cost of running a law school. Hiring people with PhDs is rarely much more expensive -- and it can be cheaper because lawyers more advanced in their careers may demand higher salaries. And since we have to hire anyway, I'd recommend at least hiring some people that play the academic game. If you don't, students suffer, whether they understand why or not. This isn't "self-serving". I have a job and I want what is best for the institution -- its students and its faculty.
Joe: Brian and I actually have come to some agreement on the issue over email: Second tier schools (like Hastings) are differently situated on this issue from fourth tier schools. That may account for my disagreement with Larry, since we're coming to the issue from different places. Brian's more general point to weigh costs and benefits is not one with which I disagree. I disagree about the speculation on what those costs and benefits are for the non-elite schools in the second and third tier.
Anyway. Reasonable people can differ about these matters. Let's keep the rhetoric civil. I will delete anonymous outbursts.
Posted by: Ethan Leib | Jan 18, 2008 4:06:17 PM
You know you are doing something wrong when people find you "disgusting" and a "joke" To be fair, I tend to care less when the claims come from anonymous commenters.
It is, of course, true that it is an empirical question whether JD/PhDs in particular will enhance a school's reputation. Still, schools that send signals that they are not interested in scholarship -- and exciting and groundbreaking scholarship -- will be suffering some important costs. Brian is right that we should be weighing costs and benefits in who we hire. But hire we must -- and I wanted to focus on a real, if underappreciated, cost. Sparky is living in some bizarro-world where all that matters is "internal" ranking. That is implausible and absurd. Number one students at Golden Gate compete for jobs against Hastings' top students. The relative weight of the JD is pretty generally a factor in the job market.
Finally, we do a lot to help our students get jobs and raise our rankings in other ways. But we must hire faculty; that is not an optional cost of running a law school. Hiring people with PhDs is rarely much more expensive -- and it can be cheaper because lawyers more advanced in their careers may demand higher salaries. And since we have to hire anyway, I'd recommend at least hiring some people that play the academic game. If you don't, students suffer, whether they understand why or not. This isn't "self-serving". I have a job and I want what is best for the institution -- its students and its faculty.
Joe: Brian and I actually have come to some agreement on the issue over email: Second tier schools (like Hastings) are differently situated on this issue from fourth tier schools. That may account for my disagreement with Larry, since we're coming to the issue from different places. Brian's more general point to weigh costs and benefits is not one with which I disagree. I disagree about the speculation on what those costs and benefits are for the non-elite schools in the second and third tier.
Anyway. Reasonable people can differ about these matters. Let's keep the rhetoric civil. I will delete anonymous outbursts.
Posted by: Ethan Leib | Jan 18, 2008 4:03:16 PM
I want to add to the comments above against Ethan's posts. First, it is, as Ethan noted about a different claim (one he wanted to attack rather than support), an "empirical question" whether hiring PhDs will improve the ranking of schools, especially those not already ranked at the top. First, peer reputation is not the only component of rankings. Lower ranked schools could try, for example, taking the funds they now use to lure "hot" new faculty and instead build better facilities. Second, peer reputation is not based entirely off research (that would in fact be an overly generous, rationalized view of peer reputation). This second point is especially true outside a small number of elite schools. Frankly, only a small amount of research gets enough notice to possibly impact rankings, and most schools will lose anyone who actually produces that level of research. If the law school ranked 85 (I don't know what it is) really going to improve its ranking by hiring PhDs who do research on hot interdisciplinary topics? I doubt it.
There is also something disgustingly self-serving about Ethan's appeal to student employability (via rankings). There are so many other things law schools could do to try to enhance the marketability of their students, but they don't, because their faculty care more about scholarship than the lowly task of training students for a trade. Surely Hastings has more efficient ways to make its students more marketable than hiring PhDs who do research on "law and X."
Posted by: anon | Jan 18, 2008 2:49:11 PM
Ethan, I think you're missing Brian Tamanaha's main point, which is that faculty composition needs to be subjected to a cost-benefit analysis for the students footing the bill. Even assuming that the value of students' JDs is tied to the scholarly quality of the faculty (and I think you're overstating that point, because reputation tends to be fairly static and largely not influenced by changes in faculty quality, see Brian Leiter's rankings), the question is, is that value enough (at a non-elite school) to offset the additional costs required to maintain and build an interdisciplinary faculty? If you accept Brian's premise -- that this is monetarily expensive, which translates into increased tuition costs -- then the interdisciplinary scholarship phenomenon becomes hard to justify at low-ranked schools. (Of course, good-but-not-elite schools like Hastings probably fit differently into this calculus than decidedly nonelite schools like Chapman, but that's a red herring.)
Posted by: Joe | Jan 18, 2008 2:34:10 PM
Mark McKenna makes one the points I wanted to make about med school much more cleanly than I do. I second his version, as well as his first point.
Posted by: Matt | Jan 18, 2008 2:04:12 PM
I was going to keep quiet here, but the Ethan Lieb post got to me. So:
First, what on earth is the basis for the claim that "irrespective of your goals" it's better to go to a higher ranked law school? The assertion is true, but only for those already obsessed with rankings. Top-tier firms and judges care about internal rankings more than the school ranking in the sense that the very best students at any school will be recognized as comparable to students at any other institution. The vast majority of practicing lawyers don't work at large firms and school rankings aren't a meaningful part of their hiring criteria. To the extent lawyers (you know, the people who might hire the graduates) care about rankings, they care about internal school rankings and performance in specific areas (e.g., legal writing and contracts). So if the lawyers don't care, and the small number of judges and firms who hire from the top of any law school don't care, then who, exactly, would care? Why, the professoriat! Thus, rankings matter not because they matter to the students or their prospective employers, but because they matter to the professoriat. A more self-serving assertion would be difficult to find.
Second, the idea that the general public selects lawyers on the basis of the lawyer's law school ranking is so far afield as to be, literally, laughable. Was it meant as a joke?
Finally, the last point--about litigation--was disingenuous. The point was that clerking was not the same thing as practicing. It's wrong to imply that practice must be litigation (not to mention going off on a tangent in a rather feeble attempt at scoring a point). The litigation setting lends itself more easily to teaching (casebooks, anyone?) but any law teacher with experience is--or should be--clear that even for litigators the courtroom is the exception not the norm.
IMO anyone who imparts these kinds of notions about legal practice does a grave disservice to the students paying their salary.
Posted by: sparky | Jan 18, 2008 1:40:31 PM
Two points:
1. It's not clear to me what "actually teaching students how to practice law" entails. Larry's impicit assumption, I think, is that law school ought teach students what they should be doing, as a practical matter, when they get to law firms. And I have no doubt that law firms would like its entry level lawyers to know more about basic practical skills, because that is all junior lawyers will do at many large firms. But it seems to me entirely wrong to suggest that moving in that direction will, in the long run, make students better lawyers. For one thing, doctrine inevitably changes, and it changes for policy reasons. If you learn the doctrine and don't learn about a variety of policy perspectives that might influence the law, not only will you be unable to influence the direction of the law, but your value as a lawyer will fade quickly. So while I think that some amount of practical exposure during law school is useful, the movement to take law school more in that direction (which I gather Larry advocates) is incredibly short-sighted.
2. To me the medical school model does not suggest that law school should be more practical. Med students do 4 years of school and *then* do internships and residency. Undoubtedly doctors feel ill-equipped when they begin doing their "practical" rotations. They don't know how to perform surgery or where to insert needles. But it would be absurd if that's all medical school taught them - they would never know what surgery was required. The same is true of law school. We could spend a lot more time teaching students how to ask questions in a deposition. But how would they know what questions to ask? The questions all derive their importance from the substantive law.
Posted by: Mark McKenna | Jan 18, 2008 1:39:34 PM
agrees- once again I hope that your reading and reasoning skills in real life are somewhat better than you're showing here! My remarks about med school don't say what you seem to think they do. Larry said, "Med schools hire people who know how to treat patients" and I merely pointed out that that statement didn't contradict anything suggested here by anyone since they also hire quite a few people who don't even have MDs, so the analogy doesn't really hold (unless you take the absurd reading Larry did and think anyone was implying that law schools should _never_ hire anyone, for any position, if they have significant teaching experience.) Next, on med school versus law school, I don't think the internship/residency part of medical training shows what you think it does. Note that much of that is done _after_ one has an MD- this implies that in most all technical and complicated fields we should expect post-graduate training to be the norm, not the exception. It would be surprising if newly minted JDs could do top-quality work on their own. I doubt this was ever the case and so that it's the case now can't be put on the increased use of interdisciplinary study. I also clearly did not say that the amount of practice held by most JD/PhDs was the same as that by non-PhDs. I don't have that data so wouldn't say that. But Larry had strongly implied that JD/PhDs haven't "seen the inside of a court room" and so could not be fit to teach, a claim that's clearly false. Finally, I didn't say that clerking is equivalent to practicing. I don't really have a strong opinion on that- I suspect its better in some ways and worse in others- but merely to reply to Larry's remark that JD/PhD's "have not seen the inside of the court room". The other claim is one you've just imagined.
Posted by: Matt | Jan 18, 2008 1:20:23 PM
Bev:
Let's use our lovable Hastings as an example. Irrespective of your goals, you are better off having gone to a "top 20" school than one that can barely stay in the "top 50". If we devoted all our hiring resources to finding people with "experience" and ignoring the need to be competitive on the scholarly front, your JD would be worth much less -- and we'd much more likely consistently find ourselves marginalized by rankings. If Davis and USF hire more strategically, their graduates will take your jobs. You'd have many fewer clients to worry about. That is all I am saying. It might also be good to have good teachers with experience also -- who may or may not have PhDs (since all the hand-wringing here notwithstanding, it is guesswork who can teach better). But one cannot close one's eyes to the currency of the legal academy and expect to be taken seriously. Even Larry's suggestion that we ought to hire people with substantial exposure to the "inside of a courtroom" strikes me as very silly. First, most people who go one to teach have clerked. These clerks have seen the glorious inside (whatever they may have done there, they have certainly watched pitiful lawyers and observed serious errors). Second -- and perhaps more importantly -- one only has to practice for a few days to realize that most lawyers never see the inside of a courtroom in their practice. So Larry's fixation on the courtroom reveals a pathology most people in the curricular reform conversation have been onto for some time: our litigation oriented curriculum is not helpful for students and biases their understanding of practice opportunities. Not that people with PhDs will necessarily solve that problem; but they may be able to give law students exposure to different sorts of jobs they may be able to do.
Posted by: Ethan Leib | Jan 18, 2008 11:48:38 AM
Though I don’t entirely agree with Larry, Matt Lister is outright wrong on all counts.
1) re med schools: scientists who’ve never seen a patient only teach basic science courses. Not so in law schools. Legal philosophers, for example, rarely teach only “legal philosophy.” They normally also teach Crim, Civ Pro, or Evidence – classes of immense practical importance. This sort of stuff just doesn’t happen in med schools.
2) Re residencies in med school, but not law schools – that should mitigate toward more practical teaching in law schools, not less. Since US lawyers normally jump right into “real” work, they should be taught to do real lawyerly work at school. Med students have a luxury of years of supervised work.
3) Re “teaching experience” of a freshly-minted PhD (in a non-law field, and typically in a setting completely different from a law school class setting) versus serious practical experience of a trained attorney – Larry beat me on this. This is a false dichotomy. The right dichotomy would involve hiring an experienced practitioner instead of a freshly-minted PhD.
4) Re JD/PhD’s having as much practical experience as non-PhD’s: patently false. I’ve seen the appointments process from the other side of the fence (at a highly-ranked school), and there is no question that people with Ph.D’s have on average less practical experience. This is both because (a) it’s hard to have both an advanced degree and a serious experience, and (b) because normally, only the people with Ph.D.’s can get away with having no practical experience whatsoever. If you can’t show a large volume of academic work (dissertation), you better show something else (work experience).
5) Bonus point re clerkship as an equivalent to practice experience. It’s not. People who clerked (and practiced) know that. Clerkship is like being a research assistant. Especially clerkship on an appellate level (the preferred of aspiring law profs) – gives almost no insight into the world of legal practice.
Posted by: agree with Larry (mostly) | Jan 18, 2008 11:18:27 AM
Larry- I'm curious how you came to the conclusion that I don't think law schools should hire anyone with significant practice experience. I certainly didn't say that here or anywhere else, nor did anything I said imply it. (I certainly hope this isn't the sort of reasoning that having many more years of practice experience than I or Ethan have encourages! That would be a real shame.) In fact I strongly suspect that law schools would be best off if they have faculty with a wide variety of backgrounds, including some with significant practice experience, as well as some with a more scholarly or theoretical approach. My point was only that your prior claim that a JD/PhD has "never seen inside a courtroom" was very often wrong and unsupported.
Posted by: Matt | Jan 18, 2008 7:12:36 AM
As to Matt's comments:
1. I agree that a couple of years of experience at "a low level position in a firm" does not count for much. The fact that Matt cannot conceive of hiring anyone with more experience than that speaks volumes.
2. As for medical school, perhaps a "fair amount" of teaching is done by people who have never taken care of a patient for very basic courses, and in courses for those pursuing research only. But when it comes time to learn how to take care of patients, that is not true. A quick perusal of faculty bios at any leading medical school will show that the proportion of full time faculty with very substantial practice experience is far greater than in most law schools.
3. As for training after graduation, as I suggested earlier, even elite firms are becoming dissatisfied with the amount of training that they must undertake. But the real problem is not at elite firms, who can probably absorb most of these training costs (although they are increasingly unhappy about doing so). The attitude embodied in Matt's post, while quite common among law professors, has proven disastrous for the public interest bar. Government and public interest firms cannot absorb the training costs foisted on them by law schools, who entrust teaching and curricular decisions to people who know litte if anything about how to prepare students for the practice of law. Clinical courses are of some help, but because they necessarily deal with very simple and straightforward litigation, or else involve complex litigation in which very little will happen over the course of any one semester, they are far from an adequate solution to the problem. The interests of the populations dependent upon the quality of services rendered by government and public interest law firms are seriously compromised by those who take Matt's view on these issues.
Larry Rosenthal
Chapman University School of Law
Posted by: Larry Rosenthal | Jan 18, 2008 1:23:32 AM
A few quick thoughts on some of Larry's points:
1) Lots of med schools hire faculty w/o MDs- PhDs in Biology, chemistry, etc. A fair amount of teaching in med schools is done by people who have never taken care of a patient. In that sense a JD/PhD is _more_ qualified to teach at a law school than some people who teach in a med school are byo your account.
2) Note that people just out of med school also are not expected to just start working on their own, too- they do long internships and residencies. So, maybe it's not a surprise that people out of law school also often need time being trained how to do their job well. This need not be a failing of the school.
3)As mentioned by Ethan, most people w/ a PhD will have actual teaching experience. For some this will be of little use but for many others the opposite will be true. It's not obvious to me that some more time in a low-level position at a firm is a better preperation for teaching that would be actually teaching.
4) Many JD/PhDs either practice for some time or clerk. It's not terribly unusual for a JD/PhD to have as much legal experience, either via practice or clerking, as do many non-PhD new professors. Given that, and the PhD, the JD/PhD seems the stronger pick, at least if you think that scholarship is at all important. Certainly it's a mistake to assume that all or, perhaps, even most JD/PhDs don't have actual legal experience at all.
Posted by: Matt | Jan 18, 2008 12:28:08 AM
I'm inclined to agree with Larry here, in that it is important to teach us students how to actually practice law. Rankings are nice, certainly, but not all students have goals that at all embrace a need for a higher ranking. I expect my clients to be far more interested in whether I can fix their problem or prevent it from occuring in the first place.
That said, part of practicing law is thinking clearly and in a way not developed by learning to file motions. So I've tailored my classes to bring a bit of both as much as possible - talk to me in ten years and I might know if this worked or not...
Posted by: Bev | Jan 17, 2008 11:29:52 PM
Professor Lieb's "speculation would be that those who actually have a teaching degree might be more useful in the classroom than those with only the JD in the first years of teaching anyway." Of course, law schools are not hiring people with "teaching degrees." Those who receive PhDs in most fields learn almost nothing useful about teaching. My own view -- based on considerably more experience in practice than Professor Lieb or most of those teaching law these days -- is that those who have never seen a courtroom rarely are able to provide much useful information about what works in a courtroom. After all, law school is preprofessional education -- trade school. Medical schools hire people who know how to treat patients -- shouldn't we presume that law schools, if they wished to serve their students' needs rather than their faculties' interest in enhancing "peer reputation," would hire people who know something about how to practice law?
Professor Lieb is unfortunately correct that all law schools have reason to concern themselves with rankings, which, at present, are heavily based on peer reputation. But assuming that the future will be like the past is usually an error, and there is some reason to believe that the legal academy is not now at an equalibrium. As salaries and other costs escalate, even elite law firms are becoming less willing to subsidize law schools that produce graduates who are not remotely ready to practice law. Basic economics tell us that the people who fund legal education will demand teaching and scholarship that is responsive to their needs. For that reason, the pendulum may well swing against PhDs and other legal "scholars" who have never seen a courtroom, as well as the scholarship they tend to produce. In fact, the interest of major donors in the Carnegie Report, and some of the curriculum changes that have already been announced at some of the leading law schools, suggest that the pendulum is already beginnning to swing.
Larry Rosenthal
Chapman University School of Law
Posted by: Larry Rosenthal | Jan 17, 2008 9:13:00 PM
I agree with Ethan's point that for rankings reasons, such a move might be disastrous for lower-ranked schools. That argument, however, only highlights how sorely in need we are of meaningful rankings.
Posted by: Jason | Jan 17, 2008 8:32:01 PM
Oh, I've noticed and responded:
http://prawfsblawg.blogs.com/prawfsblawg/2006/03/the_roberts_cou.html.
In any case, the bench and the bar -- whatever they think of recent articles in law reviews and whatever they cite -- are rankings-sensitive. And rankings are not only established by the bench and bar. As for whether JD/PhDs are any worse at "teaching [students] how to practice law," that's an empirical question. You don't need a PhD to realize that evidence on this point would be useful before you draw a conclusion. My speculation would be that those who actually have a teaching degree might be more useful in the classroom than those with only the JD in the first years of teaching anyway. But I'm willing to hear the evidence on this score.
Finally, like Brian, your argument nods in the direction of abandoning scholarship altogether. If the bench and bar don't care about scholarship, by your logic, then neither should non-elite schools. But non-elite schools will not help themselves achieve greater prestige by abandoning the currencies of our profession. It may be that some schools are so deeply in the fourth tier that their best strategy would be to isolate themselves from the academy to cozy up to the bench and the bar. In the marginal case (or for the very regional school), that might be a plausible orientation. But for schools that want to give themselves a shot at being all they can be, it is a pretty bad gamble in my humble opinion.
There may be an argument to try to do both: hire good scholars (with whatever degrees) and maintain a good relationship with the bench and the bar also. Some non-elite schools (Brooklyn comes to mind) do this extremely well. But the argument to abandon PhDs and scholarship altogether strikes me a one that can work only for very few non-elite schools.
Posted by: Ethan Leib | Jan 17, 2008 6:30:22 PM
Perhaps Professor Lieb has not noticed that the bench and bar is increasingly less impressed with what "influential scholars" have to say. Citation rates for legal scholarship in opinions, for example, are plunging. Practitioners and judges alike increasingly see the legal academy as isolated and irrelevant. Perhaps law students' career prospects are more likely to be enhanced if they are taught by scholars who have some currency in the bench and bar or, alternatively, by scholars who are also capable to teaching them how to practice law.
Larry Rosenthal
Chapman University School of Law
Posted by: Larry Rosenthal | Jan 17, 2008 5:46:23 PM
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