A PhD in Law?

Yale Law School has announced that it will now offer a PhD in Law — apparently the first time a doctoral program in law has been offered in the United States. One can only ask “what for?”

Ostensibly, the purpose of a PhD is to advance human knowledge. You get that degree for figuring out something new, and proving it to the satisfaction of people who know what they’re talking about. At the end of the day, humankind gets a little smarter, and you get to call yourself a doctor of philosophy.

Looked at that way, there’s not a whole lot of room for PhD studies in the law. The law is a manmade thing, not something out there to be discovered, and an unholy number of people make it their business to know all of its various ins and outs. In other words, there’s not much “new” to the law to figure out. The exception is for research into how the law is applied, and philosophical attempts to identify the underlying policies that explain why the law is the way it is. This is what legal scholars already do. They don’t need a PhD to do it. Lowly JD candidates do it when they write notes for their law reviews. Scholars do it when they write books and law review articles. Bloggers do it when they’re not bitching about the job market or SEO. Even amateur cartoons have been known to take a stab at it. There’s just not a lot for a PhD to work with here, and it’s already being done elsewhere.

Of course, that’s looking at it the wrong way. In the real world — particularly outside the hard sciences and mathematics — the PhD is just a prerequisite for a career in academia. If you want to be a professor, you’d better get that doctorate. It’s not about advancing human knowledge; it’s about training to be a “scholar,” however your academic field defines it.

Looked at that way, Yale’s decision makes slightly more sense. The Law PhD would just be one more way of proving your bona fides as a scholar, another way to compete for a job as a tenured law professor. There are far more people who’d like to be a law professor than there are available positions, so the competition is insane. The usual “publish or perish” rules apply here as much, if not more so, than anywhere else in academia, so getting enough articles into some law review or other is one requirement (which explains the proliferation of law reviews that few bother to read — the demand is not for the finished product but for the publication service). But that’s just a starting point. To further weed out candidates, law schools require advanced academic degrees. The J.D. is an entry-level vocational degree, nothing more. They want people with an LL.M in the area of law they teach. More and more, they want people with a PhD in (as the Yale announcement says) “economics, history, philosophy, or political science.” These are what the law is about, after all (and what you should be studying in undergrad — not pre-law — if you want to be best prepared for law school). But a Law PhD is probably not being offered just as another way to prove one’s sholarly ability.

The real reason is probably just supply and demand — and not demand from tenure candidates. The demand is from law school administrators, who want more and more ways to weed out those candidates. Because there are more and more people trying to break into law school academia. There are tons of people with LL.Ms and PhDs from other disciplines. But who has a PhD in law? Nobody. If it existed, it would be a great way to tell which candidates have learned how to be academics, which ones are already “one of us.” Yale is providing schools with a way to be more demanding of professorial candidates, and thus make the school’s job easier (while giving them something more to brag about.) Just as readers aren’t who law reviews are for, the PhD candidates aren’t really who this program is for. They’re not the customer, they’re part of the product.

So let’s make the ivory tower a little higher.  Of course, that will only exclude more people who have actually practiced law. But that’s what adjuncts are for.

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4 Comments

  1. Avi Burstein, July 11, 2012:

    > The law is a manmade thing, not something out there to be discovered.

    Based on that logic, there wouldn’t be PhD’s in literature, art, and so many other fields.

  2. Robert L. Greenberg, July 11, 2012:

    >So let’s make the ivory tower a little higher. Of course, that will only exclude more
    > people who have actually practiced law. But that’s what adjuncts are for.

    Unfortunately this is just more evidence of how far law schools have strayed from their mission of preparing the next generation of lawyers.

  3. Nathan, July 11, 2012:

    @Avi But as I said in the next paragraph, that’s not the real reason for PhDs. Especially in the liberal arts, it’s more a certificate of scholarship — of studying what is known — than of adding to what is known.

    I should have also added that they’re increasingly a gatekeeping tool for jobs outside of academia, as well. Particularly in the STEM world.

  4. Nathan, July 11, 2012:

    @Robert You’re right, many law schools seem to be missing an opportunity here.

    I’m a little encouraged, actually, by some recent announcements of more clinical and practical courses at some law schools. I’m one of many who have been calling for such changes for years, and it’s nice to see a little movement in that direction. That said, it’s only a start. One of the problems is that clinical programs are notoriously expensive to run, and the fact that most students don’t bother to take them means that their tuition helps subsidize the experience for those who do. But if more students are going to be taking such programs, that could make tuitions rise even faster than they have been.

    But practical teaching is the one place where regional and local schools can compete against national schools. The T14 do a lot of things very well, but they can’t teach you how to file a motion for sanctions in Jefferson County Court. A local school, staffed with adjuncts who actually practice what they preach on a daily basis, can be a lot more useful to someone who just wants to know how to practice in their state. Unfortunately, there are those that try and fail to compete with Harvard and Georgetown as national schools, or at the other extreme merely teach a glorified bar review course.

    It seems to me that a local school that wanted to look more attractive to potential students would be touting the expertise of its adjuncts and the scope of its clinical programs, its success in producing lawyers who not merely pass the bar, but are prepared to practice. And make sure the local firms know it when hiring season comes around.

    But something tells me that some would rather tout how many of their professors have a PhD in Law from Yale, instead.

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