The Ph.D. in Law

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.