Balkinization   |
Balkinization
Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Do You Need a PhD to Do Competent and Cutting Edge Legal Interdisciplinary Work?
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Saturday, September 10, 2005
Do You Need a PhD to Do Competent and Cutting Edge Legal Interdisciplinary Work?
Daniel Solove
Brian Leiter writes:
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..
I have an Ll.B. from the University of Texas at Austin Law School (1966), which I could have converted to a JD years ago, but did not. A large part of my work is in the area of familylaw. Almost every one of my family law clients implicitly demands of me some form of psychological approach to dealing with their non-legal problems of grief, anger, resentment, need for revenge, etc. Over the years, I have to say, I've become quite good at providing psychological counseling as well as legal counseling and legal services. Although I frequently joke about going back to school to get a degree in psychology, I never have. The only really good reason to get an advanced degree is that I could add some more letters following my name, do legally what I am doing now anyway, and maybe raise my fees.
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Books by Balkinization Bloggers ![]() Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) ![]() Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). ![]() Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) ![]() Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) ![]() Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) ![]() Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). ![]() Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) ![]() Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) ![]() Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) ![]() Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) ![]() Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) ![]() Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) ![]() Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) ![]() Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) ![]() Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) ![]() Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) ![]() Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) ![]() Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) ![]() Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) ![]() Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution ![]() Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) ![]() Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) ![]() John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) ![]() Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) ![]() Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) ![]() Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) ![]() Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) ![]() Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) ![]() Jack M. Balkin, Living Originalism (Harvard University Press, 2011) ![]() Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) ![]() Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) ![]() Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) ![]() Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) ![]() Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) ![]() Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic ![]() Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) ![]() Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) ![]() Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) ![]() Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) ![]() David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) ![]() Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) ![]() Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) ![]() Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |