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Friday, August 16, 2019

Interview with Gordon Silverstein about Yale Law School's Ph.D. in Law Program

For those of you who have been following my interview series, you know that it generally focuses on VAP and fellowship directors.  This interview, like my earlier interview about Berkeley’s JSP program, focuses on a related, but slightly different, trend in law faculty hiring—the increase in the number of entry-level hires with Ph.D.’s. I interviewed Gordon Silverstein, the Assistant Dean for Graduate Programs at Yale Law School, about Yale’s Ph.D. in Law Program.   An edited transcript of my conversation with Gordon is below, and I have invited him to respond to any questions in the comments.  Thanks, Gordon, for participating in this series!

You can read more about the structure of these interviews and other caveats related to them here

Q. Can you start by giving me a brief overview of Yale's Ph.D. in Law program?

A. I think it emerged from a few concerns – One was that with a growing number of students interested in law teaching were doing PhDs and other degree programs in addition to their JD, too often student would become great economists, or political scientists and sort of flip the script – instead of being legal scholars who used economics or political science, they became economists who used legal material. This may seem a subtle point, but it’s not: Consider normativity. You won’t get far in legal scholarship without serious normative concerns. But an economics PhD committee will strip the normativity out of your work. Some students can move back and forth, writing very differently for the different fields, but others end up stuck in the middle and satisfying neither.

The PhD in law also was meant to engage a conversation about the issue of disciplinarity itself. Is law a discipline like Economics or Chemistry with clear and agreed upon methods? Or more of a field like political science, bound together by the subject under study, the question rather than a uniform method. What does it mean to study the law and how should we go about doing that?

And it was designed to bring greater rigor to the process of training people to become professional students of the law. There would be specific course work, exams, writing requirements and the supervision of a three-member faculty committee among others.

Q. Is the idea that basically everybody who goes through the Ph.D. in Law program will then go on the legal academic job market?

A. Yes. The program is aimed directly at academic law. We expect some students may well end up in public policy arenas, or pursuing other related interests, but the objective is to prepare students for a life of legal scholarship.

Q. And what is your role with the program?

A. I am responsible for the program administratively. There is a faculty committee that oversees the program and a faculty member who serves as the Director of Graduate Studies – a role mandated by the Graduate School of Arts and Sciences which is the unit at Yale that is exclusively authorized to grant the degree of Doctor of Philosophy. Our students receive their degree from the Graduate School and for purposes of this program we function much as would any other PhD-granting department. Being a part of the Graduate School is a big plus for our students, who can take courses anywhere on the campus in any program, division or school, and they are welcome to teach in Yale College and across the campus. While this is not an explicitly interdisciplinary program such as the Berkeley JSP, we welcome students looking to the other departments and schools to supplement their studies in the law school.

Q. Okay. What I'd love to do is essentially move through the Ph.D. program chronologically, starting with the application process, then moving to the Ph.D. coursework and dissertation themselves, and then the job market. Can you tell me when the Ph.D. program starts to accept applications?

A. Applications open on August 15, and the deadline to submit an application is December 15. Though we don’t formally offer a rolling admission, we can provide an earlier decision for those facing hard deadlines with other programs.

Q. And what materials do applicants need to submit?

A. Candidates are asked to submit a personal statement about their motivations and qualifications, plans and interests. They are asked to submit a research proposal for their dissertation – which can take the form of a traditional monograph, or three related law review style articles. We ask for a writing sample – which might be a published article, an article in preparation, or perhaps an article they wrote in law school. In addition we ask for a CV, undergraduate and law school transcripts and letters of recommendation.

Q. And do you conduct interviews of applicants?

A. Not as a routine matter. There have been instances where the faculty admissions committee wanted to get more information and has conducted some interviews, but it's not a regular part of the process.

Q. Okay. How many applications do you typically receive in a given year?

A. It has varied from about 30 to about 90.

Q. And how many people do you admit and then enroll?

A. We have a limit of no more than five students in each cohort, and some years we have accepted fewer than five. We have had the good fortune to have enrolled every student we have admitted, giving us a perfect “yield” to date – but the numbers are small so I don’t want to over emphasize that point!

Q. I'll admit, I don't know a lot about the financial side of Ph.D.'s, so I'm going to ask an open-ended question which is, how does that work? Is there financial aid? What are the stipends?

A. This is a fully funded program – students pay no tuition and are provided with a living stipend, and full health coverage. The living stipend – set by the Graduate School – currently is about $32,000 a year (which I have to say goes a good deal further in New Haven then it might in some cities to the north or west. Students should complete the PhD without any additional debt. We also provide them with research funding from the Law School, and access to a number of very generous research support programs across the campus.

Q. And is that stipend for teaching?

A. No. They do have a requirement of two teaching experiences, but these are quite explicitly meant to help them learn pedagogy and classroom technique. They can fulfil this requirement in a number of ways – but their stipend, which they can receive for three and sometimes four years, is not connected to the teaching.

Q. Okay. So let's go back to the application process. Who actually decides on the applications? Is that a committee?

A. Yes. I do an initial read and sorting of applications, and send along the most promising files to the faculty committee. Yale is still a remarkably hands-on faculty governed institution and the final admissions decisions rest with the faculty committee.

Q. And what is the committee and you looking for in this process?

A. It's a highly qualitative kind of an evaluation. We're looking for people who both have an original and creative cast of mind, as well as the quality of mind that we believe will thrive in an academic environment and allow them to make real contributions to important academic and public debates. We are looking for evidence of their capacity to write, to engage in serious analysis and make real contributions. We look to the writing sample and research statement to provide evidence for of these qualities, and the letters of recommendation to help us see the qualities of mind that we are after.

Q. So let's talk about that research statement a little bit. What are you looking for there to try to judge the quality of somebody's thinking and their promise as a scholar?

A. One could turn the question around and say when you finish a book or an important article, "Well, that was a really good piece." There are a lot of things that might go into that final evaluation. Was the question they tackled important? Did they understand the foundations under the work they were doing? Was it surprising in some way? Or, not at all surprising, but definitive, and compelling treatment of long and difficult problems? Was it convincing? Was it compelling? We don’t expect them to have the answers at this point, but we do hope we have enough to get a sense of their insight, their creativity, their cast of mind. It isn’t easy. You are making a guess about where someone can and likely will reach in 10, 20, 30 years. But do you see the spark? Is there evidence to justify taking a risk?

I think any of us who've been in a classroom, you know, have been struck time to time by a student question or comment. They help us to see something fresh and different than we have seen so often. We know a fresh perspective. We can spot (or we like to think we can spot) potential and raw talent. We wold love to see those students in our program and help them bring out and refine these raw qualities. Each case is quite independent of the others. And because it is a small program we have the luxury to take the time and really read deeply into their materials and the letters of recommendation.

Q. For the candidates to come to that level of knowledge that they can be asking these types of good questions and be familiar with the literature, where are they finding the time to do that? Where do they acquire that knowledge?

A. That varies a great deal as well. Some candidates come to us directly from a J.D.. Some from clerkships and/or private practice. Some from government or public policy. Where they found the time to do the writing they present is sometimes a mystery. For some the writing sample might be a law school paper, or perhaps an article written just after law school.
Some might have skimped a bit on their billable hours. Others just burned the midnight oil. And some are coming from VAPs or other fellowships where they were able to write.

But again, as I said it's not so much that we're looking for a finished piece by any means. It's just that we're really trying to get a sense of, how are they approaching this? Do they have a sense of the kinds of things they need to know, even if they don't know them yet? And as far as the literature mastery, no, I mean, there's no expectation of that.
That’s part of what they are coming to do in our program.

Q. How much does practice experience matter in the application process?

A. We have had some very successful PhD students who came to us from practice, but I’m not sure that practice has played a particularly central role for our candidates, though I suspect some have drawn on their experience to improve their questions and deepen their appreciation for the complexity of a number of important issues.

Q. Do you have any preference for applicants in particular curricular areas? And let me say I ask this question because obviously when it comes to the entry level job market there's more demand in certain curricular areas than others. Is that something you're taking into account?

A. No, not really. Yale has long subscribed to the objective of finding “the best horse in the field.” In part because we are making guesses about the market 3 or 4 years out. What was hot last year may be in the doldrums five years later. We do emphasize that our students should be comfortable and competent in teaching the basic courses, but in the end we can them to truly excel in their research and writing and that is hard to do if you are working on a paper in a field far from your own interest and commitment.

Q. Do you make any special efforts to recruit and admit candidates from diverse backgrounds?

A. We have been extremely fortunate and have discovered that the PhD program has been a real asset for students from diverse backgrounds. The traditional route to law teaching very much favored those with deep personal and family experience in elite education. For first-generation law students, the profession of legal academe may be unknown. By the time they realize the importance of personal recommendations, the utility of working with faculty on their research, and have gained a vague understanding of the process, they are well into their second or third year of law school. The PhD in law actually was particularly well placed for these students. Having discovered their interest late in law school, they could learn the professional ropes in a program that would give them structure, form and support. Our program gives them a chance to engage with their peers on a level playing field. And our program has attracted and very successfully placed a number of first generation law students, as well as other under-represented groups. It was not an explicit goal for the program originally, but it has been a very pleasant discovery.

Q. So how would you advise somebody who may not have gone to Yale Law School, or one of the equivalent schools, who didn't have an elite clerkship? How would you advise them to try to stand out in the application process?

A. It's the writing. Write, read, and try to get published. And it doesn’t have to be a giant law review article. Show us what you’ve got – maybe it’s a book review. Maybe it’s a law school paper. The advice is the same as we all give to all aspiring law professors – write, write, and write some more. Then take some of that writing back to your law school professors. Ask them to read – even if it’s just an abstract. Engage them. Get them excited about the work. And if you don’t have that sort of relationship with a faculty person at your own law school, you can even try to blindly engage faculty elsewhere. Read what they write. engage them on their own ground with questions, comments. Once you have their attention, ask if you could send an abstract. If that goes well – they will ask for the paper, or you can offer it. And you might just be off to the races.

Q. The successful candidates, how much writing do they typically have when they apply? Do they have a published article? Do they have more than one published article?

A. That varies a lot. Some have published articles – either as JDs or in the years since. Some have unpublished articles. And some present a set of shorter pieces. I think as a general rule the more writing the better.

Q. How many Ph.D. students in law are in residence in a given year?

A. Also variable. Course work is mostly in the first year in the program, and we have had students taking leave to take up a clerkship – making the PhD program flexible to adapt to the long lead time many students have with clerkships. And our cohorts are small. But I’d estimate that we have between 5 and 12 on campus.

Q. And how many at a given time are in the Ph.D. program total?

A. I would say about 10 to 12.

Q. Can you tell me what the Ph.D. program involves? In other words, you said there was one year of coursework. What courses do they take during that year?

A. The only course that's mandatory for all of the PhDs is a two-semester course on “Foundations of Legal Scholarship.” Beyond that, they are welcome to identify courses in the law school, or in any school or program at Yale University that will provide important foundations for their work. The number of courses and the specific choices are left to student to work out with their three-member faculty advisory committee. The ‘Foundations’ course is often led by two faculty members to provide two perspectives on some of the major works in legal scholarship. The first semester is focused on intensive reading across the literature of what you'd expect any credible legal academic should have grappled with, the materials that help define the enterprise of legal scholarship. The second semester is effectively a writing workshop where the students work with each other and the faculty instructors to build and workshop their first paper.

Q. Are they taking any other classes? You said only the foundation class is required, but are they taking other classes in the law schools or elsewhere?

A. Yes, and this will vary a great deal as I noted. For some they will look to the social sciences for methods training, others to History or Political Science, Philosophy or Sociology, the School of Management, Forestry and Environment, perhaps the School of Public health or even (though it hasn’t been done yet) the Yale Drama School. These choices are developed in conjunction with their committee. Each student has a three-faculty-member committee, a chair and two other members of the committee, and so they'll sit down with them and talk about what would be logical courses. And mostly, it has been courses in the Law School. So there is an expectation that they will take a total of four courses – some may take more, some may take less, as they work out with their committee. (It is important to note that all PhD in Law students must have a JD before matriculating to our program, so in effect they already have three years of law courses under their belts..

Q. How many years do they typically take to complete the Ph.D. program?

A. To date nearly all our students have completed the program in three years – though we are open to consider (and have granted) a fourth year in appropriate cases – to support research travel time, archival work, or specialized methods training. So it is set up as a three-year program with some flexibility. But that’s a misleading since, as I noted, all of our students have a JD in hand before starting the PhD – and we consider that part of the fundamental training that they must have in this profession. So you could see our program as something between three and six or seven years, though the time in the PhD program itself is three and sometimes four years.

Q. So the first year is primarily focused on coursework and getting their writing in that seminar off the ground.

A. Right, and we're kind of following the modern social science approach, which is to say that they can choose (in consultation with the their advisors) to complete a traditional monograph, a book-length piece, or three related law review-style articles. And I think all of them so far have chosen the three article approach, which probably makes sense given the market for law faculty and what hiring and then promotion committees will expect in the early years in their career.

Q. Is writing those articles the primary focus of the last two years of the Ph.D. program?

A. Yes. Writing, workshopping, in many cases presenting work at conferences and invited talks. They do have a teaching requirement to help them prepare for their future career, but this can be fulfilled in a number of ways – as a T.A. in law courses or in courses in Yale College or the other professional schools. We also have an arrangement with the Quinnipiac Law School that allows some of our students to go up and teach an independent course at Quinnipiac. They also have access to Yale’s programs and support for teaching which is offered to faculty and students involved in course teaching. This can range from informal workshops to a far more formal certificate program in which a few of our students have participated.

Q. Just focusing on that teaching side, can they teach an independent course at Yale Law School?

A. No. The faculty, I think to its credit, tries very hard to make sure that the vast bulk of the curriculum is taught by tenure-track faculty. Our students can co-teach a course with a faculty member and there are some informal courses they can lead, but if they want to teach a fully independent course they would either do that through Yale’s residential colleges which offer about 28 students a year the chance to develop and teach an independent course or pursue the opportunities we have arranged with Quinnipiac, where they also are video-taped and mentored by experienced faculty.

Q. And what do most, what's the norm? It sounds like there's lots of different options. What do most of the Ph.D. students do?

A. You know, I think it spreads right across the range a few have taught independent courses at Quinnipiac, others have taught in history and other cognate fields in the College and some have TA’d or co-taught at YLS.

Q. Okay, that's helpful. One of the conversations that we’ve been having right now on prawfsblawg is how much time Ph.D. students have to devote to their scholarship. I’m wondering if you were to try to break it out percentage-wise, of those last two years, how much of their time are they spending on writing and how much do they spend on teaching or other things?

A. I would say 60-75% on their scholarship.

Q. That's a lot. That's great.

A. This is one of the real differences between our program and some of the long-established Fellowships like Climenko and Bigelow which divide their Fellow’s time between teaching legal writing and working on their scholarship. I think it is great that there are a number of pathways to the legal academy, and the legal writing fellowships are superb opportunities that are perfect for many candidates. We think the PhD is just an alternative model.

So the idea is to put the maximum effort on their own scholarship, with direct support for them to develop as teachers as well as academic professionals. And the two – teaching and scholarship – often support each other. My own case is a good illustration – I had the opportunity to teach my own course as an undergraduate seminar during my PhD program. That course grew into my dissertation, which became my first published book. And I went on to teach that course off and on for about 20 years. So teaching can have a direct pipeline into the scholarship. But that aside, it is overwhelmingly scholarship, that's the focus of their time.

Q. And what does that mean in terms of where the students are actually located those last two years? I imagine they have to be in New Haven for the first year but do they tend to stay in New Haven for the last two years or do they spend some of it elsewhere?

A. Most of our students have been in New Haven for the full three years, but we have a couple of commuters and a couple who took up tenure-track positions in their second or third year, and are continuing their PhD writing from those campuses. While it would be wonderful to have everyone here for three years, this is a slightly older population than the typical PhD (because they already have three years of post-graduate education in their JD, and many have had clerkships and/or been in practice for a year or two. So some have spousal employment considerations and other reasons why they need to commute. Tele-conferencing has really helped make this work, and we have fully equipped seminar rooms that can bring all of our students together for workshops or presentations.

Q. Okay. Let's talk then about the workshop culture for the Ph.D. students since most of them are around to take advantage of it. Do the Ph.D. in law students get together professionally? Do they have their own workshop series, their own student organizations, something like that?

A. Well student organizations, I mean again it's just too small, to warrant separate organizations. But they are welcome to join – and have actively participated in – programs in the Law School and indeed, one of our PhD candidates actually launched a very successful new student organization that involved a number of JD candidates as well as JSD, LLM and PhD students. The second semester of the foundations seminar is effectively a workshop of their own work, and that's with other Ph.D. students and sometimes with some of our JSD students who join in, as well as students from related fields who might join from time to time. Our students – since they are students of the Graduate School of Arts and Sciences – also participate in graduate student organizations and participate in the intellectual life of related fields.

Q. Can they go to the Yale faculty workshop?

A. Yes. In fact we strongly encourage them to attend the Faculty workshop in their first semester and beyond. In addition they are urged to participate in other long-standing workshop programs at the Law School, such as the Legal Theory Workshop, Law and Economics, and Legal History. We encourage them to participate in these, as well as workshops in the ISP (Information Society Project) and other centers. It is a delicate balance – these workshops and the myriad of events at Yale Law School and in the University are wonderful, but can easily eat up enormous amount of time, so they have to balance these opportunities with their primary task of research and writing. But the workshops are an important opportunity for professionalization in the world of legal academe.

Q. You mentioned that each student has their own committee. How is that committee formed and what assistance does it provide over the three years?

A. Right. This was actually one of the dilemmas for those who built the original program: There is a logic in students seeking out their own committee – but this would be far more difficult for applicants who did not do their JD at Yale. We wanted to open the program both to Yale JDs and to others. And so what we came up with, which I think has worked very well, is that when the Committee has agreed to admit a student, the Committee approaches faculty members and builds an initial committee for each admitted student. Unless we can secure an enthusiastic committee for each student, we won’t admit them. Once they're here, they're welcome to change that committee as their project develops and they get to know the Yale faculty. But we actually put together the initial committee.

The committee is there to advise them on their coursework, it's there to provide feedback on their writing, it's there to advise them professionally in terms of preparing for the job market. As with any committee, the chair is going to carry the bulk of that but the other two are there to provide some alternate perspective as well. In addition the Committee administers the student’s oral exam – this is a traditional PhD with exams and other required benchmarks. And one role the committee plays is to put together a reading list with the student which becomes the basis for their oral exam in the fall of their second year.

Q. Are they then talking with their committee over summer between the first and second year about their reading list or are they just on their own there?

A. They build a list in conjunction with a committee and so that will vary. Some committees will say to the student, "you put together the initial list and we'll edit it," or they'll work collaboratively on building a list. it varies from faculty member to faculty member. And then it's a traditional Ph.D. oral exam. It's a 90-minute exam with the three committee members and the student. You know, and in an ideal world those just become terrific intellectual conversations and it's really an opportunity to sort of begin to knit together these different pieces that you've been preparing in the first year. And you know, it's certainly not an exam where we expect people to fail and it's certainly not designed to do that all, it's designed to actually give them an opportunity to begin to put things together and synthesize what they've been studying.

Q. We’ve been talking a lot about the scholarly side. Coming back to the teaching side for just a moment, is there any training or mentoring related to teaching specifically in the Ph.D. program?

A. There is. We observe them in the classroom, we tape them and review the tapes. And there is an extensive new center at Yale to help anyone in the classroom from TAs to Senior Faculty. They offer workshops and even a certificate program in teaching. This is not required but some of our PhDs have taken the certificate course and were very enthusiastic about it.

Q. Let’s step back and compare the Ph.D. in Law program with some of the other options that applicants might be considering. I imagine somebody applying to the Ph.D. in Law program is probably trying to decide between this program and perhaps a disciplinary Ph.D. program, Berkeley’s JSP program or a law school fellowship. What would you say to candidates who are weighing Yale's program against these other options?

A. That's a really good question. I think that these are all valid and effective pathways to law teaching, and different candidates will benefit more or less from different programs. But it is important to recognize that they are very different. I think the legal writing fellowships offer the most distinct contrast. These programs provide great support and access to academy, but those do come with an obligation to spend 50 percent of your time teaching legal writing. This is an incredibly important thing for law students to learn, but the odds are it is the one course these fellows will never teach again. So there is a sharp learning curve with a limited long-term benefit. That still leaves a lot of time and support for writing and research but it is a significantly different allocation of time. The PhD has a teaching requirement, but for most of our students, they can make use of that prep in the future.

There is an upside tradeoff which is that right now the leading fellowships do provide higher compensation than the Graduate level stipend we provide. But then again, half the Fellow’s time really is more like a job (a wonderful job, but a job) and that’s not the case with the PhD

Turning to the other PhD programs, particularly JSP at Berkeley. JSP is really unique. It's the quintessential (and successful) instance of interdisciplinarity and is, I think, the best at what it does. The faculty are comprised of sociologists and historians, philosophers and political science professors. It grows from and between these disciplinary traditionsl The PhD in Law at Yale is not designed to be an interdisciplinary program – though we welcome interdisciplinary work. It is otherwise structures quite similarly to our program – exams, committees, dissertations. I think the great difference there as I said is that (and I would say this about disciplinary Ph.D.s also) is that you're an economist who uses law as your subject matter. You are a historian who is informed by law or studying the history of law rather than a legal scholar who uses history or economics or statistics.That sounds subtle, but I think it's actually a little bit more profound. I think that a lot of what JSP does and a lot of what cogante disciplinary Ph.D.s do, is of course to train you in the method and standards of that particular discipline. So, as in the economics example, they will spend six years beating you in the head to stop any normativity from leaking out. Then you'll finish that. You'll get your great job in law and then you'll come over and people will say, "Well, what's your normative bite on this?"

Some people can do that. Some people can move between those two worlds. They can function in the hard social science world and then flip over and function in the more normative legal world. But, it's hard to do that. It's really hard to do that. And I do worry that people can flounder when they try to do that. You know, I think that as between a disciplinary Ph.D. and ours, what's been lacking all these years and what our program I think begins to address, is that starts with a very self-conscious question. What is it that we are doing as legal academics? Are we really training people to be practicing attorneys while we do a little theorizing on the side, or are we genuinely an academic discipline in our own right? I think that answer is clear. We are and have been academics for at least 60 or 70 years. But, unlike every other discipline, we haven't done any of that kind of self-inspection or retrospection on who we are and what we do and why we do it.

So, these great methodological debates that go on in other disciplines really don't happen in law. Many will look to other disciplines to set their standards, and still others write wihout a great deal of attention to method. And there are those who come from practice for whom these grand debates hold little interest.

I cannot imagine ever that law will be like the other disciplines, where everybody would have to have a Ph.D. in Law in order to be on the faculty. Law Schools will also be a mix of professional and academic and that is how it should be. So I can’t imagine that it would make sense for every faculty member to have a PhD in Law. But I can imagine a time when every law school would want to have one, or two or three faculty members who have a PhD in Law – to ask these questions and spark a real conversation about law. I think that would be a very, very valuable thing.

Q. Let’s switch over to the job market and the mentoring that the Ph.D. in law students receive as they head into the job market. Basically, everyone who goes through the program, is anticipating going onto the law teaching market. Is that right?

A. Yes

Q. And what type of mentoring generally do they receive?

A. Well, I think they're getting a lot. They're kind of getting a double bonus from Yale. Yale is already so small that they can’t help but have frequent contact with their Committee, but also with a wide range of faculty who may not be directly in their field, but offer real insight and useful challenges. It sometimes took me six months to get an appointment with one of my own PhD Committee members but here you're going to run into these people every day. I mean we're the size of a small high school. So, I think that that's a big factor. Beyond that though, we have a pretty extensive and well-developed program to help students, JDs, JSDs and Ph.D.s alike, who are interested in academic jobs and moving into the academy. It includes an extensive law teaching seminar series, including speakers from recent graduates and faculty. We offer mock interviews, mock job talks and expose them to the art of workshopping.

When they are ready to go on the market, we have a faculty committee that will help them from AALS strategy , to job talks to contract negotiations. We will help them polish abstracts and critique cv’s. The Ph.D.s are sharing in what is available to any Yale graduate. But beyond that, they're also getting, I think, the much bigger bang for their buck, because they work closely with a faculty team, not only on their exams, but on their papers.

What we all know is, it's not enough to have a letter of recommendation. It's got to say something. And to say something, it's got to be a faculty member who really knows your work and can actually comment on it. That's a useful recommendation to other committees. And I think this is one of the hardest things for students to understand, is that having a two line letter recommendation from Bill Clinton is not nearly as useful as a four page letter from an assistant professor who knows your work upside down. And can really help the committee to understand what it is that you do and what your contribution is. So, the fact that they've got this committee built in that they've been working with them, these are people that really can comment on the quality of their minds, the quality of their arguments, the quality of their writing and all the rest of that.

Q. So, thinking about that and how it's actually played out over the last couple of years, how long has the Ph.D. in Law program been in existence?

A. The first cohort got here in 2013 and graduated in 2016.

Q. Of the students who have graduated, do you know what percentage has landed in tenure track law jobs?

A. 96% of the PhD in Law students who went on the market have gotten tenure-track law jobs. One person didn't go on the market, and one person went on the market, but then decided to get some real world experience. I except that person to return to the market and to place well.

Q. Is there a list of the graduates online somewhere that I might be able to link to?

A. We have profiles of all the current candidates. [Here’s the link.]

Q. Does the program support candidates who may have to go on the teaching market more than once?

A. You know, the year this program was conceived and approved by the faculty, that was the high point of academic hiring. By the unofficial count first maintained by Larry Solum and now by Sarah Lawsky, there were 166 tenure track jobs in the market that year. The year that that first cohort graduated (2016), I think that was the year that we had 69 new jobs in the market.

So we are in a totally new world in law teaching. In 2009, 2010, if you didn't get a job, then there must be something wrong with you. In 2016 if you DID get a job, there must be something wrong with you.

Q. So, does that mean that students can stay on for, let's say, a fourth year if they need to, to go on the market a second time?

A. We are open to the possibility of fourth year. But, so far we haven’t needed that because people didn’t place, instead we’ve offered it for student’s whose research and writing proved more complicated, or perhaps there was a personal health issue or family issue. Would we consider a fourth year for someone who didn’t land a job their first time out? We certainly would consider it but, as I said, we have been fortunate in not having to face that decision.

Q. That’s a nice problem to not have faced.

A. Agreed. As I said, we’ve placed 96% so far … but this is a very small program. And it is a program that helps them produce the coins of the realm – original compelling research and writing, Our student fo on the market with two or three well placed articles and a third one well underway, which would be their job talk paper, possibly even already accepted.

They can really hit the ground running. They come out with extensive experience presenting to faculty and to peers. Some of them have coauthored with faculty. I think it's been refreshing that, we have both Yale JDs, but also people from other schools, which brings some fresh insight into the building. I think that's very useful.

I think it's really more a question of people making choices about what it is they want to spend their time doing. I think that there are people that will be very successful law professors that don't necessarily have that kind of deep, deep intellectual, passionate curiosity. And that's fine. But, as I said before, I think that you want both. You want people in a law school that are doing and training people for practice, for public policy, for every possible career out there, including legal academics.

Q. That’s actually a perfect transition into some of the broader questions.

A. Sure.

Q. I'd love to get your thought on about the rise of Ph.D. programs and VAPs and fellowships. What do you think are the benefits of the rise of these programs as an entry point into legal academia and what do you think of the cost?

A. I would put Ph.D.s and advanced degrees in a separate category from the VAPs and fellowships. I think the real leg up of the PhD and other advanced degrees is just the time and resources to write. Some of the fellowships do that as well. I think it can be enormously helpful intellectually, but it can also have the unintended consequence of leaving you in no-man’s-land between a cognate discipline and the field of law. But I think students who pursue a PhD now for purely instrumental reasons will be disappointed. The credential alone is no longer so unusual, and it is a long hard road to get a PhD and that’s an investment you have to want deeply in your soul and not just as a surface, instrumental factor.

On the demand side, I think in the go-go years before the great crash of 2008, there was a growing interest in interdisciplinarity, and a desire to build law schools on an ever-more academic and theoretical foundation. Schools were growing and a PhD was a luxury they were eager to obtain. But with the slashing of new jobs, the emphasis is really on what you have and can produce. If I PhD helps you produce, that’s great – but it’s not clear to me that a hiring committee much cares whether your productivity was due to the time and support you had as a PhD, or just your hyper efficiency in your down time. What matters is what you’ve produced which is also thought to be evidence of what you are likely to produce in the future.

Back to the supply side, I think more and more students who have the deep academic instincts began have a real hunger to read, to study to answer (and pose) hard questions. More and more people headed for an academic career were hungry for what a PhD had to offer. So it's unclear to me whether committees are saying we want somebody with a Ph.D. or it's just more people who are interested in academic law get themselves a Ph.D.. and they constitute a growing segment of the pool.

Q. Do you think there are costs to this approach? It’s obviously stretching out the timeline to try to become an entry level law professor.

A. Right. Here I would put in another pitch for our program. How much the PhD stretches out the timeline, I think, turns on how closely related the PhD is (and the writing in the dissertation) to law and to what a Law Faculty is looking to hire. If you wrote about some deeply interesting topic in Economics or Physics for that matter, can you immediately translate that into legal publications? If you can, the time line isn’t stretched at all. If it is a long hard connection to establish between your two halves, then you have the stretching you mention perhaps. If you're a legal historian, then going off and writing a legal history book as a Ph.D. program, is perfectly keeping you on track in a sense. And if you are doing a Ph.D. in Near Eastern languages and your academic work is in contract law, I'm not sure that there's an instrumental connection there. Though of course there may well be an intellectual connection.

So, I think if students are getting the message that gee, my odds are better if I have a Ph.D., so I'm now going to go off and invest five years in a Ph.D., I think that would be a very, very bad outcome. That's just not the reason to go and do a Ph.D. That's a reason to do a one year program. It's not any reason to do a five or six year program.

So, if students are misinterpreting that, I think that would be a real cost. As far as the institutions are concerned, I think you always have to be a little bit careful that there's always a little bit of a risk that what you really have is somebody who really wanted to be a philosophy professor, but there were more jobs in law, so they went off and became a law professor. That can work out, but it can also lead to frustration and a lot of other less attractive outcomes. And you can’t really sustain a five- or six-year PhD program on purely instrument motives. If you don’t love the material or have some burning need to be there, it’s going to be a pretty rough time

Q. Do you think that these Ph.D. programs have a responsibility to try to open up law faculty positions to people from diverse or nontraditional backgrounds?

A. I think all of our programs have that responsibility – from JD admissions to clerkships, from JSD and PhD programs and fellowships alike. Although our program wasn’t explicitly designed with that in mind it has worked out remarkably well on that score. Here is a new pathway to law teaching which well serves those who have planned this career their whole life, and those who never even imagined it as a possibility in the 1L or 2L year. It levels the field and makes the process turn on the quality of argument and idea and not simply hitting the marks of the traditional route – top grades in 1L, law review, RA for famous professor, clerkship, write your “tenure” piece and disappear for 50 years which tied so much to knowing how and who and went to push the right buttons.

The PhD in Law can help those students of course, but it can also help the student who needs some structure – they have a three person faculty committee, they are invited to participate in workshops, they take additional courses, they write, they teach all in an incredibly supportive environment. It makes sense that we have attracted some outstanding First Generation and traditionally underrepresented minorities as well as top-notch more traditional students.

Q. I don't know if you've heard this criticism, but there's a lot of fear out there among hiring committees that it can be hard when you have candidates who are working so closely with mentors, either in Ph.D. programs or fellowship programs, to tell how much of the work and ideas come from the candidates themselves and how much come from their committee or other mentors.

A. This is true in all fields. And one thing we definitely advise all the students, JDs and Ph.D.s alike is, that they've got to be very careful, particularly about co-authoring with a big-name faculty member, because, of course the assumption tends to be, "Well, the famous professor did the big idea and and you did the footnotes."

Q. Right.

A. So, there's a couple of things that you can do with that. I mean, what we recommend is, for one thing if you do co-author, make sure the big name professor writes an explicit letter that specifically states what was your contribution and what was hers. “Sections two and three are mine and sections one and three are the students.”
That's one way to deal with it. But, we have made it very clear to people that they've got to have something in their file that is not coauthored. I mean this is becoming a bigger problem particularly in the more empirical areas of law where co-authorship and multiple authors are common. As you said, you've got to have something where the committee can feel this really is the voice of the candidate and not their advisor.

Q. How about stuff that isn't coauthored? In other words, I'm just trying to write a dissertation and I sit down and talk with my advisor and the advisor over several meetings says, "Whoa, Whoa, your direction isn’t the right one? How about this other direction?" Then it’s hard for hiring committees to know how good the candidate is.

A. That is a perennial problem, but far from limited to a PhD … it would be as true for a JD co-authoring with (or serving as an RA to, or writing a paper under the supervision of a big-name professor. The only way to truly end any debate is to write a piece that confronts, challenges or disproves the Big Professor’s central thesis. But then again, many of us study with someone precisely because we are excited by the research path they have blazed. In that case you might write on a clearly distinct application of the famous thesis in a new place or new way. In short, you need to demonstrate your own independent capacity even if you are building along the same lines, or using the same theory in your foundation. And again. you might encourage the big name to write a clear letter as part of your file which is explicit about how or why teh student is not just the big name’s ‘mini-me’

In the end, having at least one paper that is unequivocally distinct and original would be the best way to confront this problem. Ultimately, the student who merely tills the field that was plowed by another is going to show very poorly. This might have generated a good paper that was well published, but when it comes time for Q&A at the job talk, they are very vulnerable. I was teaching at the University of Minnesota years ago and a student of a big, big name faculty member at Stanford came and gave a talk and the talk was fine. It was very impressive. Then the questions came and this person just couldn't answer anything that was even 3 degrees off the particulars of the paper. It was just obvious that, you know, they have no original idea, they are merely a workhorse for the big name. (Needless to say this candidate did not get the job).

Q. Last question for you.

A. Sure.

Q. Given that life is zero sum in so many ways, time spent in a Ph.D. program is obviously time not spent in practice. What do you think about that trade off given that we're in the business of educating lawyers?

A. Well, you know, I think as with many things, it's not just those two things, right? So I think that law schools are still in the business, of training practicing lawyers, but also training public policy people and nonprofit people and consultants and business people and so much more. Toss a rubber ball in the U.S> Senate and you can’t avoid hitting a few JDs A PhD is a big commitment, and opening that door may close some others. Law has the advantage that it is thought to be great preparation for a huge number of careers. In this sense all of our students, JD and PhD alike, have so many options at ever point in their careers, that almost none of the PhDs in cognate fields have. So choices are choices. Do we need PhDs training the next generation of lawyers? Again – we don’t need them to be trained exclusively by PhDs, but I do think every law school would benefit from having a few on their faculty. As to tradeoffs, this just gives me a chance to repeat – if you are doing a PhD for purely instrumental reasons, I'm not sure that's the best idea.

If you have a passion for the kinds of questions. If you want to dig into those kinds of things, whether it's in a traditional discipline or in law itself, then by all means. Because, you will build a storehouse of questions and ideas and insights that you'll draw on for the rest of your career. And that's a pretty valuable thing. Also, I mean at this point, in a buyer's market, having published pieces of work that can demonstrate that you can and will be productive and a real contributor, is a huge asset on the market. And so, you know, if the way you can get those papers written, is because you're doing a fellowship, great. And if the way you can get those papers written, is by being in a Ph.D. program, that's great.

Writing is the coin of the realm in doctrinal teaching positions. As far as the practice goes, you know, I think again, it's going to really vary law school by law school. I see no reason why advanced degrees and practice need to be unrelated. The ideas, theories and arguments made in academic work can and does translate to inventive (and effective) theories of a case … or open doors to new contracts, new models of remedy and relief.

But the key is to find the means best suited to you that will allow you to think, and write and engage in original research. That writing will get you the job. It will get you the promotion. And, if this career is right for you, it will give you the satisfaction and the opportunity to make a difference.

Q. Yeah, I agree. I don't think the credential itself matters as much. Right? I think what matters is the quality of the papers when you come on the market.

A. Yep.

Q. Anything else you want to add either for the benefit of hiring committees or potential applicants about the Ph.D. in Law program?

A. Well, I think, as I said, two things. One is, I think that legal academia could profit from a richer debate about what it means to study the law. And I think that that's been lacking. And I think that the Ph.D. program is one route to trying to do that. There's a depth and a richness of work that needs to be seasoned and I think a Ph.D. program provides that seasoning and that time and that support. So, I think that's another big plus about it. I think that you want people that can engage deeply and across a wide range and so, thinking not just about their own sub specialty, but also thinking about how it relates into a bigger story of writing and thinking about and researching law and law's impact on society.

Q. Yeah. Thank you so much, Gordon. I really appreciate your time today.

A. Happy to do it.

Posted by Jessica Erickson on August 16, 2019 at 01:04 PM in Getting a Job on the Law Teaching Market, VAPS & Fellowships | Permalink


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Posted by: Fatima | Mar 30, 2020 8:20:43 PM

I have to agree with the comments below, it doent like a rigorous PhD program.

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Posted by: barish | Jan 28, 2020 2:14:34 AM

Anon said: "Wow. How does that compare to other top fellowships and JSP/PhD programs, I wonder?"

It probably is around the same rate of employment for Yale JDs.

Posted by: Tony Smith | Aug 21, 2019 4:44:58 PM

I'll try to reply to comments here ... and happy to discuss individually with anyone interested in doing so.

1 - replying to 8:15:04 am ... As I noted in the interview, I cannot ever imagine a time when there would be only PhDs or PhDs in law on a law faculty. Law Schools still are predominantly professional schools and there will always be a demand for experienced practitioners. That being said, the prawfsblawg numbers put together by Prof Sarah Lawsky are pretty pretty clear that there fewer and fewer are being hired in doctrinal teaching who do not have an advanced degree of some kind. I am open minded about the causation here -- and do not think it is because hiring committees are insisting on this credential, but rather because of the time factor, and the degree to which those interested in becoming law teachers have deep curiosity that pushes them toward advanced degrees.

To 11:11:33 AM ... concerned that a three year program without a mandatory methods course can't be doing very much. The program is an effort to get us collectively thinking about just what WOULD be or SHOULD be a part of any mandatory methods course. At this point, Law is far from any sort of consensus about that. But there is a legal method, and our students must have a JD in hand to start our program, so they will have six years of legal training, not three, though only three in this program. We also make available the full range of methods for them to build the appropriate tool kit for their research - and they have the run of the full university as well as the law school for that purpose.

to 11:44:26 AM ... I think there is an important distinction between a discipline and a field. I agree, law is not a discipline. But (like Political Science) it is a field in which a range of methods are in play ... for Political Science that means some are historians, some are psychologists, some are sociologists, some are economists, some are philosophers. If we use an overly strict definition of "discipline" - a uniform core methodology, then I'm afraid that's the end of all of the social sciences except - perhaps - Economics.

YOu make a good point about peer review and student journals but (1) that is the way this particular field operates whether we like it or not and (2) the only way to build rigor in a field is ... to build rigor in a field. And we hope that in some small way this program can contribute to that development.

to 6:22:53 PM ... it is a buyer's market ... Lawsky (and before here Larry Solum) reported a modern peak of 160+ jobs 10 years ago ... we are now at a new normal of about 75 ... the buyer's are demanding more and more of new hires, more publications, more training and experience. Good or bad, it's reality and we are trying to help candidates prepare for that market. As to the finances, our PhD is a degree of the Graduate School of Arts and Sciences and the stipend is the one they set. Yes, it is less than a number of fellowships. But it is an option. This is not a job (as many fellowships are in part). These students are working toward a degree and are full time students who pay no tuition and receive a full living stipend.

to 7:10:45 AM ... well said. We hope our program will *not* be unique ... I think there is real room for a conversation about what our methods should be and how our discipline can define itself. There is room for more rigor and more introspection about our enterprise. And there is and always will be room for those with great practice skills and understanding.

- GS

Posted by: Gordon Silverstein | Aug 20, 2019 2:48:14 PM

"Lawyers don’t need a methods course unless they are using methods from other disciplines; they need some practice experience to have a realistic sense of what their students will be doing." I strongly disagree. Lawyers don't, but legal academics might. There is clear methodology in good legal scholarship, even if it is not interdisciplinary scholarship. Most people in JD programs, even top programs, do not learn about methodologies of legal scholarship. Students and weaker scholars often write papers into the ether, with little regard for how it fits into the arcs and traditions and longstanding debates within legal scholarship. Student editors tend to focus on "novelty" but have a hard time picking up on how an article fits into schools of thought in the legal academic discipline. I am personally unfamiliar with the Yale PhD program, but as I understand it, it aims to train legal scholars in those arcs and foundations so they can engage in research that advances the discipline of legal scholarship, as well as developing a clear understanding of their own methodology in doing so. In other disciplines, this is also what PhD training does. Most legal academic fellowships do not do this. They sometimes give fellows a bit of time to write, sometimes socialize them into workshop culture, but they do not intentionally educate fellows about the substantive content or methods of legal scholarship. Practice experience is irrelevant to that. I do not know enough about the Yale PhD program to strongly support it, but I can envision a law PhD program that sets better methodological standards throughout the legal academy. Sure, some scholarship is aimed primarily at practitioner audiences, and practice is relevant to that type of work. But that work has not been the most influential within the legal academic discipline.

Posted by: AnonRealPhD2 | Aug 18, 2019 7:10:45 AM

Original Anon here re grooming. I have to disagree with other posters about the value of such a program. I think there is real value—learning across disciplines, areas of law, and teaching. But I don’t think legal academics need to be more like philosophy or Econ phds. Lawyers don’t need a methods course unless they are using methods from other disciplines; they need some practice experience to have a realistic sense of what their students will be doing. And Yale JDs do not need additional grooming. Yale has a history of hiring (and admitting to the PhD) mostly from its own ranks. And it has a reputation for being the place to go if you want to be a professor. It’s not clear what the PhD does for these people, other than bias the market in their favor even more.

Posted by: Anon | Aug 17, 2019 8:46:17 PM

Especially if you went to yls as many of these have this is just an attempt to spend a few more years grooming for the market. I fail to see which skill what one gets out of this. Also given the pay is half a fellow you get a narrow range of person applying - either someone young, with rich spouse or family or someone without kids- or all three.

Posted by: Anotherrealphd | Aug 17, 2019 6:22:53 PM

Agree. This is just a fellowship/JSD under a different label. The reason we take PhDs somewhat seriously is that those people had serious training in a narrow discipline. Often they've published in peer-reviewed journals rather than only in student-edited law reviews where the people making publication decisions are hopelessly uninformed about what is good research and what isn't.

What would be desirable is if there existed area-based fellowships like in medicine. These would have a Constitutional Legal Scholar aspirant work with a few top people for a year or two. Same for race, gender, etc.

Overall, this just seems like another attempt by law profs to look more like "real" disciplines with PhDs and peer-reviewed scholarship.

Posted by: AnonRealPhd | Aug 17, 2019 11:44:26 AM

Three years for a PhD without a mandatory methods courses makes me question what the added value is of this program is as opposed to a traditional doctoral program. I have to agree with anon below, it looks more like a grooming program than a rigorous PhD program.

Posted by: anon | Aug 17, 2019 11:11:33 AM

Now here’s a program that really is pure grooming. How can candidates with from practice compete with being groomed extensively for 3 years? Sounds like a great program, but many won’t be able to participate for a variety of reasons

Posted by: Anon | Aug 17, 2019 8:15:04 AM

"96% of the PhD in Law students who went on the market have gotten tenure-track law jobs."

Wow. How does that compare to other top fellowships and JSP/PhD programs, I wonder?

Posted by: Anon | Aug 16, 2019 2:51:57 PM

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