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Tuesday, July 05, 2011

The Ph.D. in Law

Jason Mazzone

Ever since I began teaching, I have believed that law professors in the United States should hold a Ph.D. in law. That belief is even stronger today. One reason law professors should hold a Ph.D. in law is that doctoral training in law would improve the quality of legal scholarship. For example, much of the scholarship that is produced nowadays in my own field, Constitutional Law, is not especially good. There are likely a variety of reasons for this, including the inability of many authors to distinguish between writing an academic article and authoring a legal brief. Doctoral training, with a substantial dose of training in scholarly methods, would head off this and other problems.

In other countries, a Ph.D. in law is essential to teaching in a law faculty. This summer, I have spent time with Ph.D. candidates in constitutional law in Italian universities. I came away very impressed by the quality of the work they are doing; they left amazed that American law professors do not need a Ph.D. in law. There are many problems with Italian universities but this is one feature that deserves admiration.

Of course, in the United States, the study of law is already a graduate degree. This fact likely explains why the Ph.D. in law has not taken hold. In a post last year I proposed bifurcating legal education so that there would be a J.D. track for lawyers and a Ph.D. track for legal academics. Failing adoption of that model, Ph.D. training seems to me especially important for graduates of U.S. law schools. Law schools teach mostly advocacy. Not surprisingly, writings produced by students (notes and papers) in the course of their training are therefore more like briefs than academic articles (though there are of course exceptions). Graduates of law schools who go to clerk or work for a firm for a couple of years before becoming professors do not typically pick up the skills needed to conduct research and produce academic scholarship. A Ph.D. in law would usefully reprogram the prospective academic law professor.

Many new law professors hold a Ph.D. in some field other than law (philosophy, history, and economics are the most common). Such training is useful but it is no substitute for doctoral training in the actual field in which one labors. Through fellowships, advice from mentors, self-education, and other mechanisms, professors do pick up new skills in the course of their careers. But this is a roundabout and uncertain way of training a legal academic.

In his letter to alumni last month, Robert Post, the Dean of Yale Law School, announced that Yale will begin offering the degree of Ph.D. in Law, with the first candidates admitted in the fall of 2013. I will have more to say about this development when additional details emerge about how the program is structured. But this is an exciting change, one that I hope other schools will replicate.

It's almost enough to make me want to be a student again.

Comments:

Could you elaborate on how a Ph.d would mitigate the problem of results-oriented scholarship?
 

This comment has been removed by the author.
 

Rather than have a bifurcated curriculum, having the PhD be an extended version of law school might make more sense. Most PhD programs do have classes for the first couple years anyway, so adding on three years of research and dissertation to get both a JD and PhD in law isn't a huge stretch.

As it stands now, the fact that law professors are JDs means that they can argue cases and take leaves to work in government, making it more attractive than having to choose one or the other, especially how hard it is to get into legal academia. What else could you do with a PhD in law and no JD? Few would go that route. Also, given we generally do not have undergraduate law degrees, bifurcating the curriculum would require many academically inclined people to choose a path before really having a chance to see what law is about.
 

Query:

Would these new legal scholars be the appropriate faculty for more than perhaps one or two classes in the vocational track schools?

Perhaps this would be a practical way to transfer subsidies for scholarship from law students to general endowments and grants.
 

A PhD in public policy seems perhaps like a good approximation?
 

The primary purpose of a law professor is to teach students how to be lawyers. A separate track of education for Ph.D. professors would result in higher barriers to entry for teaching, and lower quality teaching (Ph.D. professors will be less likely to have the experience in the art of being a lawyer). Law schools are already justly criticized for not providing much practical education, Jason Mazzone wants to made legal education even less useful.
 

Does Post say how Yale's new PhD in law will differ from their existing SJD program? Is this just a re-branding w/ perhaps less emphasis on training foreign lawyers?

Another question: part of getting a PhD in history, economics, psych, etc. is learning how to apply the tools of a discipline to various topics. Law certainly has tools that it applies, but they are largely the ones you suggest make for bad scholarship. What special disciplinary tools do you see being taught in a law PhD program? And, why would you think that would be better than an approach that involves both training in law and in another discipline, one that teaches distinct tools that may be fruitfully applied to law? (Only a tiny few law professors have a PhD and no legal training at all, after all. Even those w/o a PhD often have some legal training.)
 

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"The primary purpose of a law professor is to teach students how to be lawyers."

Yes, but there's an additional component, too. Getting students to think about not just the "black letter law," but the purposes for the law, the structure of the law, and the basis of the law. Lawyers aren't particularly good at doing this--perhaps in part because they operate within the existing framework of the law and the specific matters of their individual cases.
 

N/A,

Actually, many lawyers who practice in the world of litigation are quite good at explaining the policies behind law, whether statutory or common law. I'll be glad to put myself in a law school classroom and explain insurance law, tort law, contracts, employment law or other topics in which I have practiced, and to help students learn both the meaning and practice of these areas of law--and how they intersect...

As for the substance of the article, there is a natural tension as to whether law schools are technical schools or philosophy schools. If the former, then the more practicing lawyers and judges as professors, the better. If the latter, then the PhD idea makes more sense. As we don't live in an either/or world most of the time, perhaps we need to consider whether three years in a law school is a PhD after all and avoid the overcredentialing of an already expensive process...:-)
 

Hi Jason, very interesting topic. Can you tell us a bit more about Yale's new Ph.D. program in law? Didn't they already have one? :) Seriously, how long on average will it take? What would a dissertation in law look like? Who would serve on the committee? Any Non-Ph.Ds?

Just a thought. It strikes me that, say, graduate training (and not necessarily a Ph.D.) in, say, political science, history, economics, or philosophy would prepare someone who wants to do academic legal research and writing. In fact, those fields intersect nicely with "law". What would a Ph.D. in "Law" add?

I think that you're right that more training in academic research 9and simply more time to read and know all of the relevant literature) is a big step in the right direction of having law professors produce better scholarship. I'm not sure that a Ph.D. in law is the answer.
 

P.S.- Anyone know what percentage of law professors already have Ph.D.s? I know that the numers have been growing recently but they still have to be low.
 

Mitchell,

I agree with what you said here: "As for the substance of the article, there is a natural tension as to whether law schools are technical schools or philosophy schools. If the former, then the more practicing lawyers and judges as professors, the better. If the latter, then the PhD idea makes more sense."

This makes a lot of sense to me, but then your next bit didn't follow to me: "As we don't live in an either/or world most of the time, perhaps we need to consider whether three years in a law school is a PhD after all and avoid the overcredentialing of an already expensive process...:-)"

The problem is that Jason is right about great amounts of terrible scholarship out there. As a hopeful future legal scholar myself, I can say that after law school, even as I tried to write academically as much as possible, I still need training in how to do so. The law school environment is simply not suited for, as is. It's too class centered and intellectual curiosity is actually culturally frowned upon, strangely enough. (Ever heard someone called a gunner for asking questions in a PhD program?) So, in other words, there might well be value in training for scholarship beyond the JD, even given the natural tensions in legal academia.
 

Andrew, why not do a Ph.D. afterwards and elsewhere? As in a field related to law.
 

Two reasons I can think of:

1) If you want to be a legal academic, why have to study another field?

2) Time. There would be a lot of overlap in learning the basic structure of the law as you do in law school, and the foundations of what you'd need as a PhD. Law school is a slightly longer version of the two years of classes that most PhDs have to take to get a foundation in their field, (ok, maybe one year's worth, but then most PhDs come in with undergraduate training in their areas). Therefore, only another three or so years should be needed, rather than a six year PhD elsewhere.
 

(1) Because law intersects w/ so many other fields; it's not autonomous. If you look at the best scholarship in, say, constitutional law and theory, many of those law professors have graduate training in other fields.

(2) I know, I've done both (J.D. and Ph.D.), and believe me, most people these days don't make it through a Ph.D. program in the humanities and social sciences in only six years (assuming that they make it through at all). If you were to write a dissertation in another field related to law, then you could try to turn it into a book manuscript or carve it up into self-standing law review articles and make yourself more competitive on the academic legal job market.

Recently, Larry Solum wrote a piece recently on becoming a law professor. Please feel free to e-mail me at rdenotte@calpoly.edu if you'd like me to send it to you as an attachment.

-Ron
 

(1) That's true, but you might have the cause wrong. It might be the other field that is influencing it, or it might just be the academic training. That's sort of the point of this whole discussion - the academic training itself is important to good scholarship. Of course, the multidisciplinary approach is not a bad thing, but maybe it shouldn't be the only way to get the training.

(2) More power to you. I toyed with the idea of applying to PhD programs, but honestly, I just would not make it through another 6+ years of school right now. (I have already switched careers, but I think the sentiment would exist in someone that went straight through as well.)
 

There's a difference between intellectualism and street smarts but there's also an intellectualism that engages experience, and the skill of reading situations on the fly. The humanist academy has insulated itself over the last decades, in the name of objectivity, reason, and science (often as pseudo-science) in what seems like a continuation of the "Two Cultures" debate. The model of intellectualism not founded rightly or wrongly in natural science sis founded on the model of philosophy and academics as philosophers. This ties indirectly to the European model of inquisitorial justice and not the Anglo-American model of adversarialism, which is chaotic by comparison, but more founded in the vulgar practice of democratic debate. I think I'm reading a defense of that here now.

It's always amused me that Brian Leiter held the "Joseph D. Jamail Centennial Chair in Law", at UT Austin. Here's a clip of Joe Jamail in action.
 

I want to continue a bit because the subject has begun to come up in academia. Professional philosophers are beginning consider something they call Embodied Cognition. It's a problem that they're fundamentally opposed to the practices they're trying to understand. It would be a mistake for law professors to insulate themselves in this way.

The following is something I posted on a philosophy page where embodied cognition is a popular subject. The link to SSRN is courtesy of a commenter here.

"Embodied knowledge also includes the interpretation of embodied knowledge: the skills both of the craftsman and the critic. Expertise by way of embodiment is called connoisseurship. The contemporary model of naturalist epistemology dismisses it out of hand, as philosophy has always opposed rhetoric, while indulging it as we all must.

Trial lawyers are connoisseurs, as legal performers and critics. Lawrence Solan, "Lawyers as Insincere (But Truthful) Actors" SSRN. Solan underestimates the role of insincerity in daily life and of the common requirement to recognize it, partly I think because as a liberal, he wants to see himself as sincere. But we live our lives following performances as texts and subtexts. The ability to read subtext is one aspect of the ability to read embodiment. The only way to escape liberalism is to acknowledge embodiment not as worthwhile subject but as method and to trust no one, note even yourself."

Lawyering is an art, and in our system it's vulgar. Academia is caught up now in a cooperative, collaborative model of study, of "research", that then sends out opinions written in the form of judicial decisions. Moral Hazard seems to apply to everyone but economists, and "liberal" politicians foist illiberal policies on the electorate with no change to the self-designated labels. Sandy Levinson has already gone over the Yalies in the White House legal staff.

"Could you elaborate on how a Ph.d would mitigate the problem of results-oriented scholarship?"
Again, mls, your arguments here have been more founded in rhetoric than anyone's.

"Like Professor Tushnet, I don’t claim that the mere fact that no one has raised the argument before means it is meritless. But it is pretty evident that any merit it may have is, shall we say, coincidental."

That's not criticism of an argument it's criticism of an attitude. I don't care that you did it, it's a lawyers' trick and tricks are legit: you fight with what you have. But if your moralism is rendered false by your technique, it's the moralism that's the problem.
 

Instead of having a curriculum forked, a Ph.D. is an expanded version of the law school might make more sense. Most doctoral programs are the classes for the first two years anyway, the addition of three years of research and doctorate, both a doctorate and a PhD in law is a vast expanse.

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Would these brand-new legitimate scholars function as proper college for longer than possibly a couple of lessons inside vocational monitor educational institutions?


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Fascinating thoughts right here. I appreciate you taking the time to share them with all of us.
In no way believed that it was this simple all things considered.
 

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Without meaning to insult scholarship for its own sake, why not have a program that trains lawyers and other J.D. holders to be better TEACHERS?
 

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