Balkinization  

Monday, September 10, 2012

A PhD in Law? Yes. A PhD in Law.

Gordon Silverstein

As many of you may have heard, Yale Law School has announced a new PhD in Law program – applications are now being accepted for admission to begin study toward the PhD in September of 2013. Jack kindly offered me a chance to guest blog about this new program – which I am intimately involved with as the recently hired Assistant Dean for Graduate Programs at Yale Law School.

It is true that while the vast bulk of successful legal academics completed their formal education with the JD degree, a growing number of law professors now have PhDs in cognate fields like Economics or Political Science, or from explicitly interdisciplinary programs. A PhD in Law will not, cannot and should not supplant these other avenues. But a PhD in Law will add something distinct and quite important.

It seems there are two important themes to consider – what is different about Yale’s PhD in Law, and why that matters.

Unlike PhD programs designed for students who wish to learn about law from the disciplinary perspectives of a cognate field, Yale’s PhD in Law degree is for students who have already earned a JD at an American law school and who wish to pursue advanced studies in law from the perspective of law, contributing to, and building upon the traditions of legal research. While many would contest the idea of law as a discipline, surely after more than 100 years of important and successful scholarly – theoretical and applied – accomplishments, law ought to be able to make a claim as an important and independent field of study. A PhD in Law, one that seeks to cross the classic lines dividing public from private, domestic from international, transactional from normative and so many more, is something well worth pursuing and developing. Yale’s PhD in law will offer young scholars as well as future practitioners and policy makers an opportunity to contribute to the development of law as an academic field, and it will provide an alternate path into law teaching alongside existing routes such as fellowships, advanced degrees in cognate fields, and transitioning directly from practice or clerkships.

There are, of course, a number law schools that house and support various PhD programs. These tend to break into three groups – (1) interdisciplinary programs (such as the august program in Jurisprudence and Social Policy at Berkeley);  (2) joint-degree programs that offer a JD in conjunction with a PhD in a cognate field such as Political Science or History at a wide range of law schools; and (3) more specialized, focused cross-disciplinary programs such as Vanderbilt’s  PhD in Law and Economics. And these, of course, are all in addition to the venerable and deeply valued LLM and JSD programs at Yale and elsewhere.

(1) Interdisciplinary programs are asking (and answering) questions about law, legal institutions, and social and political behavior, but they deploy the disciplinary norms, methods, and canonical literature of other fields and disciplines to do so. (Berkeley’s JSP program – which helped found and build the Law & Society movement – explicitly and effectively deploys the methods and theoretical approaches of the traditional social science disciplines). Many students in these interdisciplinary programs will earn a JD alongside their PhD – but not always.

(2) Focused cross-disciplinary PhD programs – such as a PhD in Law and Economics – also are asking and answering important questions about law, but rather than developing an interdisciplinary tradition, these programs maintain a deep and specific focus: Law as studied through the lens of economic theory and methods, for example.

(3) The classic dual-degree programs, where students complete the JD in the law school, and, separately, a PhD in a cognate field. The PhD in these cases is very much the intellectual product of the cognate field, and the student's dissertation often is supervised by an advisor whose training and disciplinary focus is exclusively in the cognate field rather than in law.

Which brings us to Yale’s PhD in Law. This is meant to be a PhD in the field of law – the study of law from the perspective of law. That’s new (at least in the United States). Law schools in the United States have long worn many hats – they are the source of professional training in the practice of law as well as the source of both basic and applied research in everything from jurisprudence and philosophy to transactional law, from international and comparative law to alternative dispute resolution, from intellectual property and legal history to public policy and election law and much more. But with more than 100 years of experience in the study of law, it is more than a little surprising that there has not been greater formal effort to study law as more than the sum of its parts. There are important questions that legal research, legal scholarship and legal thought can help to solve in ways cognate fields cannot: Not only will the PhD in Law help us to think about what is distinct to legal scholarship, as well as what is profitably borrowed, and also what legal scholarship, what the study of law from the perspective of law might contribute to these cognate fields.  

As would a PhD student in Economics, a PhD student in Law needs to start with a broad understanding of the full field before embarking on a dissertation that will dig deeply into one the student's area of expertise and concentration within the broader field. To provide a common foundation on which to build this program,  all students applying for admission to the Yale PhD in Law program must have a JD from an American law school as a prerequisite for admission. This will provide a common baseline, and ensure that PhDs in law are well trained in legal reasoning and well prepared to help train the next generation of legal practitioners. Admitted students will continue to broaden and deepen their studies: All PhD students will be required to enroll in a two-semester proseminar much like the proseminars PhD students in History or Sociology would be required to take. This two-semester sequence of courses – led by a team of Yale Law School faculty – will expose the PhD students to different perspectives on the canon of legal scholarship and ask them to engage deeply with these traditions through their own supervised research and writing.  

PhD students also will be required to take additional courses of their choosing to enable them to  gain expertise in materials relevant to their own research plan. These courses will be drawn from a set of graduate seminars offered within the law school as well as graduate seminars offered in cognate fields for those whose dissertation work would benefit from such courses. Students will then be required to take general, comprehensive exams as well as narrower oral exams in their field of expertise.Finally, students will research and write a dissertation – which can take the form either of three articles appropriate for publication in a major law review or a book-length manuscript. 

Throughout this process, PhD students will be guided and supervised by a three person faculty committee that they will assemble to suit their project and interests. In addition, PhD students will be given training and practice in the art of law teaching, as well as extensive opportunities to participate in faculty and student workshops, and in seminars designed to enhance their professional as well as academic development. On a more nuts-and-bolts level, students will be provided with a tuition waiver, health insurance and year-round stipends for the three years we anticipate they will spend in residence at Yale as well as access to all of the University’s resources: As members of the Graduate School of Arts & Sciences, as well as the Law School, PhD students also will be welcome to take courses across the university and participate in student organizations, academic centers and a wealth of other opportunities on and off-campus.

There are important questions to answer and challenges to meet in the understanding of law that a PhD program is ideally suited to address. In no way does it supplant or replace Yale’s outstanding JD, LLM, MSL and JSD programs – but instead it is an innovative and exciting addition to them, and I am delighted to be able to participate in its development.

I would, of course, be more than happy to try to answer any questions – and would frankly welcome thoughts, comments and suggestions as we launch this new initiative. You can find further information about the program here, and applications, which are administered by Yale’s Graduate School of Arts & Sciences, can be found here.

Please feel free to contact me at: gordon.silverstein@yale.edu



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