Boalt Hall, Education / Schools, Glenn Reynolds, John Yoo, Law Professors, Law School Deans, Law Schools

Calling Dr. Law: Yale Will Offer a Ph.D. in Law for Would-Be Legal Academics

I contacted several law professors who graduated from Yale Law School themselves, posing a few possible questions (but inviting their free-form responses to the news of the program):

  • Is this program a positive development?
  • Will other law schools follow suit by launching their own Ph.D. in Law programs?
  • What does it reflect about the evolution of the legal academy?
  • How would your law school look upon a Ph.D. in Law from Yale when hiring entry-level candidates?

Professor Glenn Reynolds of the University of Tennessee College of Law — the blogger behind Instapundit, and a 1985 graduate of Yale Law — sounded some critical notes:

(1) Yale tried something like this with its DCL (Doctor of Civil Laws) program when I was there, but that petered out after a few years when law schools didn’t seem especially interested. It’s not obvious to me that the market is better now than it was a couple of decades ago.

(2) This would seem to exacerbate the divide between legal practice and legal academia. Better to make people spend a few years at a law firm before teaching than extra time at Yale.

(3) An argument in favor of this program would be that it produces better teachers, since most new law professors have little or no prior experience in front of a classroom. (In my case, it was 3 class sessions as a TA for Geoffrey Hazard.)

But Yale Law’s faculty isn’t particularly known for its teaching, as opposed to research. Will they be hiring faculty based on teaching excellence as opposed to scholarship in support of this program? That would surprise me.

(4) I don’t see my own faculty being particularly anxious to hire PhD’s in law as opposed to JD’s with sterling resumes (probably including some genuine practice experience).

(5) That said, if any place can pull this off, it’s Yale.

Professor John Yoo of Boalt Hall, a 1992 YLS grad, also questioned the need for such a program:

Getting a Ph.D in law would be like making law school seven years — the only people who would prefer that, I suppose, deserve to serve out a full life sentence as professors.

But while some are arguing that three years of law school is already too long, why not instead guide students interested in teaching to spend their third year on intensive research and writing, perhaps followed up by a postgraduate year as a fellow — which is where things seem to be moving anyway.

But if someone is determined to get a Ph.D, I don’t see why he or she would not get a Ph.D in another discipline, such as economics, history, or political science. Or even literary theory. As legal scholarship becomes ever more interdisciplinary, there would be a much greater return on the time and resources invested than spending 3 or 4 more years hanging about law school.

Professor Yoo’s points support what I’ve noticed in my own observation of hiring trends in the legal academy. Nowadays, a typical résumé for an aspiring law professor going through the hiring fair aka “meat market” of the Association of American Law Schools (AALS) might feature a J.D. degree plus one or more of the following: a judicial clerkship or two, experience in the practice of law, a Ph.D. in a discipline other than law, or a postgraduate fellowship aimed at training legal academics (which are becoming increasingly common; check out Professor Paul Caron’s lengthy list of them). Would a Ph.D. in Law, even from a school as august as Yale, trump such a résumé?

Professor Lior Strahilevitz — former deputy dean of the University of Chicago Law School, and my classmate at YLS (class of 1999) — echoed some of these concerns. Here is what he had to say about the program:

It might work, and the systematic introduction to the canon of legal thought is a great idea, albeit one that is replicated in various elite schools’ JD programs. Maybe the Yale Law faculty grew tired of wrestling with dissertation committees for JD / PhDs where the legal academics and social science academics were giving the PhD students diametrically opposed advice? That’s a common frustration.

The danger with a program like this is that the graduates will wind up being “tweeners.” Elite schools might continue to prefer their current mix of (A) JD/PhDs in Social Sciences and the Humanities and (B) JDs who wrote a couple of good papers during Law School and then obtained meaningful practice experience. Less elite schools — who are going to be increasingly constrained by budgetary considerations anyway — will probably be hiring JDs from group B + (C) practitioners with a great deal of practice experience. I think the PhD program will work best for lawyers with at least several years’ of post-clerkship practice experience and a JD from somewhere other than Yale, but it remains to be seen whether the Yale PhD will dominate the best teaching fellowships (which pay much more, are a year shorter because they lack Yale’s year of coursework, and offer better spousal employment prospects than New Haven does.)

A final tenured law professor and Yale Law graduate whom I contacted offered these thoughts:

I’m surprised to hear that YLS is doing this, frankly, for two reasons. First, a Ph.D. has traditionally been understood to signify advanced study and scholarship in a substantive area, and this sounds like a degree in the advanced study of how to become a law professor rather than in a subject such as economics, philosophy, history, etc.

Second, why does Yale of all schools think that it needs to do this? If 10 percent of law professors in the U.S. graduated from YLS, and a large number of those professors also hold Ph.D.s in non-law subjects, what does Yale think it’s adding to the profession by injecting a new stream of quasi-joint-degree candidates into the academic marketplace? Fellowships, postdocs, and VAP positions already exist to give future legal academics the time and the environment in which to produce scholarship, and this has been especially true for candidates who are coming from practice rather than graduate school.

Also, what would a dissertation for the Ph.D. in law look like — a study of the Socratic method? a comparative analysis of the impact of CLS versus law and economics on the first-year curriculum? If the goal of Yale’s program is to make law teaching more accessible to potential scholars from a variety of backgrounds, that’s admirable, but there just doesn’t seem to be a match between that goal and a Ph.D. program, especially for a school with a track record like Yale’s.

Also, I could be wrong about this, but I thought Boalt already offered a Ph.D. in jurisprudence or something like that.

That does appear to be the case (although Boalt’s Ph.D. program does not require a juris doctor degree).

UPDATE (5:00 PM): Professor Brian Leiter, not known for mincing words, opines that the Yale Ph.D. program is “[t]he worst idea in the history of legal education.” (Gavel bang: commenter.)

But let’s look on the bright side. First, it’s Yale, the nation’s premier institution for producing legal academics. The faculty members and administrators behind the program surely considered all of the relevant factors — including the current state of the academic job market, and hiring trends within it — before deciding to start awarding Ph.D. degrees.

Second, as noted above, the program has outside funding; it’s not an attempt by Yale to scoop up tuition dollars. Candidates for Ph.D. degrees at YLS, rather than going into debt for their educations, will enjoy free tuition (and even receive stipends to cover living expenses, as well as health insurance). It’s hard to imagine any Yale Ph.D.s saying that they are worse off for having been through the program — something that sadly can’t be said for many holders of regular law degrees.

Good luck to Yale Law School as it launches its new Ph.D. in Law program, and good luck to the first set of applicants and degree candidates. The job market for lawyers isn’t so hot right now, but the job market for law professors remains robust. It will be interesting to see how this experiment unfolds and how the holders of Ph.D. degrees from YLS fare in legal academia.

(The complete YLS press release, as well as links to other news stories, can be accessed on the next page.)

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