Balkinization  

Saturday, September 10, 2005

Do You Need a PhD to Do Competent and Cutting Edge Legal Interdisciplinary Work?

Daniel Solove

Brian Leiter writes:

[T]hings have now gotten to the point that almost no one, not even someone with an excellent JD, can do competent, cutting edge work in interdisciplinary areas like law and economics, or law and philosophy, or law and psychology. In those cases, the PhD training is essential.
I strongly disagree. While PhD training can be immensely useful -- I often wish I had such training -- I think Leiter overstates the case that it is "essential" to do competent cutting edge interdisciplinary work. Leiter’s statement appears to rest on the assumption that one needs a PhD in order to understand and write in certain fields, such as economics, philosophy, or psychology. With all due respect, I believe that it is possible to understand and write about philosophy and other disciplines without a PhD.

1. Leiter’s statement appears to assume a strong distinction between interdisciplinary legal scholarship and legal scholarship more generally. I wonder whether such a distinction is valid. I believe that law is inherently interdisciplinary. What exactly is non-interdisciplinary legal scholarship? Law has internalized philosophy, economics, and other fields. Is there such as thing as “pure” law? Given that the study of law is inextricably immersed in other disciplines, I doubt one can be an “excellent JD” without having had some background in other disciplines.

2. The idea that a person without a PhD can do competent cutting edge work in law and philosophy, law and economics, etc. strikes me as facially false. Having a PhD is not a sufficient condition for writing good “interdisciplinary” legal scholarship – people with PhDs can write crap with the best of them. Having a PhD is not a necessary condition either. The issue isn’t whether a person has PhD training, but whether somebody is sufficiently immersed in the literature to engage in the debate. The most important criteria for good legal scholarship is whether the scholar has a good background in the relevant texts of the discipline and is an excellent thinker, not what credential that person may hold. Under Leiter’s view, can Judge Richard Posner and Judge Guido Calabresi make “competent” and “cutting edge” contributions to law and economics today?

Cross-posted at PrawfsBlawg; check there, in addition to here, for comments.

Comments:

Here's reply from Brian Leiter over at the PrawfsBlawg cross-post:

BRIAN LEITER: "I didn't say having a PhD is sufficient for doing good interdisciplinary work these days, I said it is necessary. The credential is a proxy for the training and competence necessary; it is possible for someone to have it without the formal training, but extremely rare. Posner and Calabresi no longer make cutting-edge contributions to law and economics--my lawyer/economist friends put this in terms of the change from first-generation to second-generation law and economics. My view about the importance of formal training is based on the empirical evidence: e.g., the large number of JDs purporting to write about philosophical topics whose work is incompetent and sophomoric.

This, by the way, is not to deny that there are JDs who draw usefully on economic and philosophical insights in their scholarship; the claim concerns what is needed to actually advance the interdisciplinary sub-specialties. I stand by the claim, based on the evidence before us in the law journals, that those who do the latter now have appropriate graduate training in the cognate discipline."

Posted by: BL | Sep 10, 2005 7:47:28 PM
 

My impression from talking with lawyers with PhD in economics is much like that of Leiter's- the Posner's economic work isn't very sophisticated and would not pass muster with people who know more about the field. ("Posner learned economics from reading text books. He should have read more." was how it was put most bluntly.) In philosophy, where I have more personal experience, I find the case to be much the same. I'm sure that there are some law professors w/o PhD's in philosophy who can do top work- it would be a surprise if there were none- but they are very few, and much of the "philosophical" work writen by law profs w/o philosophical training would get you laughed out of most philosophy grad seminars.
 

I should add that this isn't just the case with law- for example, in philosophy of science it's become quite difficult to make interesting and important contributions without a pretty significant background in the relevant science. A PhD isn't (yet, perhaps) necessary, but some significant training, beyond just philosophical training, usually is.
 

"Badges? We don' need no stinking badges." A. Bedoya, character actor

Isn't it possible to be an "intellectual federale" sans Ph.D., depending on the subject matter in question? Whatever happened to the self-made man? I can testify that I know of at least a few righteous dudes who seem pretty adept at hunkering down with the books all by their lonesomes, and when they (we) eventually come up for air, sometimes a new field (albeit interdisciplinarian) is born.

My dad's Ph.D. is in Mathematics, and I don't e.g. presume to be able to read his stuff without the benefit of formal instruction -- but I believe that others could, in effect donning the mantle of "modern day Ramanujan" as it were (admittedly rare as hell). But in other fields, the "softies" (like shrinkology), even a layman like me (J.D. only) can get to a fairly high level of understanding with a little imagination and some half-assed statistics. Then, God forbid they should make a contribution by solving a problem or posing a new one.

I love my J.D., it's from Pierce Law which more or less specializes in Patents and other IP Law ... I think of my J.D. the way I thought about playing "Rover" position on the softball team ... muy generalé. My J.D. is useful as an entree into all sorts of scholarly research. I do plan to pick up a Ph.D. or two in a program starting next year (2006), via point of a gun if necessary (KIDDING!) and I'm sort of tending toward two interdisciplinary fields, "Social Engineering" and Neuroethics.

And so, just for fun, the reaminder of this comment is an e-mail I recently sent to a female colleague about this Ph.D. stuff, I'll excise anything personal but leave the gist intact:

My way around the coursework is that, especially with Soc-Engineering, no "real" coursework exists for me to take. I'm essentially fire-branding a whole new field.
"Courses? We don't need no stinkin' courses." All of my shit was done "in the field" as we say (double entente), so although I may have to sleep through a few more "standard model" -type classes due to some old fogy on the Committee, I'm more or less hoping for some of that "credits for life experiences" stuff a lot of universities offer. (BTW, I used to say "double entendre")

Overall, I guess it's a similar sitch to when I was selected to be the token non-Silicon Valley guy on the original team to put together the first ever "Certified Web Architect" curriculum program for US Web Corp and Microsoft (they were in some kind of partnership about it). A bunch of us SMEs worked on it, and the work included a lot of conference calls since I was in St. Louis and they were in San José. At some point I mused: after we finish the curriculum, and finish designing all the exams, aren't we more or less the very first "Certified Web Architects" ourselves?" I mean, I couldn't see the point of taking the exams if we already knew all the answers by dint of having created the damn things in the first place. One of the San José guys, the only other lawyer on the team (hybrid I.T. / lawyer guy, like me), Jeff Somebody, said "I see your point, but we can't just declare ourselves Certified web Architects." "Sure we can", I said. "How?" he asked. "By fiat", I responded. He said he liked that idea, and it caused him to chuckle. Pretty much everybody else on the call seemed to relish the prospect as well.

So, again. If Napoleon can crown himself Emperor, I believe that if I play my cards right it may be possible to "declare myself a Ph.D. in a whole new field" after some sort of review committee bellies up to the bar for me. Even with established programs, this can be a real subjective thing, awarding a doctorate. Dr. Jameson once discussed my friend Jim Farmer's upcoming FPO with me back in 1992, I attended when it happened and was very glad I did. (I wasn't able to attend my friend Albert's FPO for Physics at Harvard, but he described it in some detail to me subsequently, and I wrote about it in one of my Propeller Head books which are half-published online, later tonight I'll see if I can dig up the precise URL for you). Regarding Jim's FPO, in Aerospace Engineering (Computational Fluid Dynamics), the gist of what Dr. J said just beforehand to me was: "Well, you advertise the fact that you're defending your dissertation. You put up flyers around campus, send out e-mails, make phone calls, etc. I'll be there because I'm Jim's dissertation adviser, and I basically know what he's been working on for these past seven years. But in some cases, it's damned hard to get any other people to serve on a fellow's defense committee, because it's hard just finding any people anywhere who'll know what the hell he's talking about ... [pause] ... let alone come up with some intelligent questions to ask him."

So, if that can be a major hurdle even in an established program, finding folks who can understand what you're saying, imagine what's like in a whole new field.

(Actually, I just did a quick scan of my propeller-head.com site for you, and couldn't locate that story about Albert ... it must be in the second half of one of the chapters, and only the first half of each chapter has been made available online. So I'll have to dig it out of the Microsoft Word files and pass it along. The gist of it is that one of the profs kicked off Albert's FPO (Harvard Physics) with a ridiculously easy question for him ("Just to see if I was partying here instead of studying", said Albie), then the second prof asked him a moderately difficult one which he rapidly worked out in his head and answered correctly. Then, he said, the third prof went for the moon, asking him a question that by their own admission nobody in the entire world seemed to know the answer to yet ... causing Albert to fill up a blackboard or three with dense and cryptic equations. I wish I had been there instead of futzing around at law school.)
-----
P.S Dug matt's comment ... my B.A. was in Philosophy, my special emphasis was Phil of Science.
 

In response to Brian Leiter's comment to my post (see the first comment above), I assume that at best Brian can make a claim about philosophy but not other fields. Since he lacks a PhD in other disciplines, I take it that he cannot make much of a claim beyond philosophy -- unless he claims that one doesn't need a PhD to properly evaluate whether scholarship makes a cutting edge contribution to a particular field. And if he were to make this claim, then it would strike me as odd how one could be a good evaluator of whether something makes a cutting edge contribution but lack the knowledge to make such a contribution oneself. So at best, Brian is attempting to make an empirical claim about philosophy, but that claim rests on faulty logic. He writes in reply to my post: "My view about the importance of formal training is based on the empirical evidence: e.g., the large number of JDs purporting to write about philosophical topics whose work is incompetent and sophomoric." But this doesn't logically support his claim that "not even someone with an excellent JD, can do competent, cutting edge work in interdisciplinary areas." That many JDs don't write about philosophy well doesn't indicate that JDs cannot do so – or even that it is “very rare.” Moreover, that many law profs with JDs don’t write about philosophy well doesn’t indicate that those with PhDs are writing anything worthwhile.

I'm also unclear on what Brian means by "advanc[ing] the interdisciplinary sub-specialties." What does it mean to "advance" a particular field? Brian distinguishes between drawing from other fields and advancing them. But since the law is infused with so many aspects of other disciplines, why can't an intelligent and thoughtful analysis of the law advance other fields? Leiter's claim is based on an assumption of what doing "philosophy" or "history" or "economics" constitutes. But who exactly determines what doing these things constitutes? For example, there are disputes among philosophers about what constitutes "philosophy." Brian's "empirical evidence" about the “importance of formal training” is far from empirical. It is based on his normative conception of what the study of law constitutes and of what the study of philosophy constitutes. It involves a conception of the relationship between law and philosophy. Law could be understood, for example, as a branch of philosophy. Or it could be understood as something entirely separate upon which philosophy operates. Anyway, my goal is not to get into a debate over what philosophy is; my goal is to point out that Brian is basing his claim upon a particular normative conception of different fields and their relationships to each other, a conception that is highly contested.
 

BRIAN LEITER WRITES IN REPLY: "Re: Daniel's lengthy reply: One can justify a claim either by appeal to what one knows and has evidence for or by appeal to the judgments of qualified experts; obviously my view about work in law and philosophy is of the former kind, my view about work in, for example, law and economics, of the latter kind. It will be easier to show that the second kind of justification is faulty by adducing qualified experts who dispute it, though, to the best of my knowledge, we have heard from none here.

What Daniel calls the "faulty logic" of my generalization based on a sample is not faulty logic at all, unless one thinks all inductive inferences are unjustified, which, to be sure, some (e.g., Popper) have thought. I would hope we don't have to solve the problem of induction to observe that with a rare exception purportedly philosophical writing by JDs in the law reviews over, say, the last decade has been of an extremely poor quality, and that this might be rather good evidence that if you want someone doing very good work in law and philosophy, you had better look for more than the JD by way of formal training. We can, of course, supplement the empirical observation with an explanation for the observed phenomenon (e.g., why it is someone with a JD would make the kinds of mistakes that we observe) that would support the thought that if you're hiring a jurisprudent you had better hire a JD/PhD in philosophy if you want someone competent.

I would assume we would look to philosophers and economists, for example, to figure out what philosophy and economics involve. Those understandings are transitory, of course, and may evolve radically over time, but that is neither here nor there: I am only making a claim about the here and now. There are also no disputes among philosophers in the here-and-now about what philosophy is that have any bearing on the point I am making (Daniel cites none, of course, referring only in the abstract to the possibility of such "contested" claims about philosophy). I have no idea what it means to say "law could be understood...as a branch of philosophy," unless the point is that one can stipulate anything to mean anything, which, of course, is true, but then I'm not sure how it is relevant. Since the debate here is fundamentally an evaluative one, it is, of course, true that it has a normative component; that is quite compatible with it having an empirical component too, e.g., the interdisciplinary work actually done, the empirical data which is then to be subjected to evaluation. (The other kind of evidence I'm going on, by the way, comes from years of doing appointments, and looking at the work of candidates with JDs who purported to be doing work of a jurisprudential nature.)"

Posted by: BL | Sep 11, 2005 9:19:51 AM at PrawfsBlawg
 

Should we first resolve whether or not in the current educational environment law school is basically a trade school, that perhaps could be shortened to two years? Should the interdisciplinary work best be done before or after law school? Then consider the adage "Jack of all trades, master of none." Personally I have had enough problems dealing with my "jealous mistress" over the years.
 

I suspect I am closer to Leiter than Solove on this one, with the following observations and modifications.

1. We should be more suspicious of interdiciplinary legal work published in law reviews than in peer reviewed journals. Peer review journals also have their problems, but if a law professor consistently publishes, say in good quality literary journals, seems to be, a rank amateur in that area, that the person is probably doing professional quality work.

2. Lots of subjects exist on the borders between disciplines. I've done a lot of amateur, semi-pro at best, history and philosophy, because that borders on subject matters where I do have some credentials. And I have seen some very weak law by PhDs who would benefit by a law degree.

3. But I think the vast majority of people with a JD and a PhD in another subject think that the PhD training prepares one better for interdisciplinary scholarship than the JD. My graduate students regularly have professional historians and sometimes law professors on their PhD committees. Rarely true for law review types.
 

Hippocrates said it best: "The art is long, life is short". It is difficult enough to master one profession, let alone two. Is there a point where one can say "I am as good a lawyer, doctor, biologist, geneticist, etc. as any human being can possibly be and it is time to achieve perfection in another profession"? I do not think so. Achievement is the result of dedication. The lawyer continues to try to be the best lawyer he can be and the biologist maps the human genome and the two together persuade the judge and jury. If we are talking about "cutting-edge work". If we are talking about being "credentialed" so that we can participate in discussions in other fields then a Ph.D. will add to our credibility but the cutting edge work will still be done by the single-minded, dedicated specialists in that field, whether they are lawyers, or AIDS researchers or astrophysicists, etc..
 

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