Friday, July 13, 2012
Posted by Jeff Lipshaw
The Yale Law School's announcement that it will award a Ph.D. in Law has agitated electrons around the blogosphere, provoking approval, disdain, speculation, and derision. My view is closest to Dan Filler's "meh."
The following, as rationale for the program, strikes me as a view of the legal academy that assumes Yale and its equivalents are at the center and everything revolves around them:
“It’s becoming increasingly hard to transition directly from law practice to teaching,” [Dean Bob Post] said. He explained that to secure entry-level appointments at law schools, candidates are now expected to present a relatively mature scholarly profile; they need a defined research agenda and a substantial portfolio of writing.
It's probably fair to expect that Yale won't be the only school offering a Ph.D. in law, but my guess is that it's not going to change the landscape or the contours of the "Failing Law Schools" debate (of which Brian Tamanaha's book is the most thorough catalog) too much.
This is hardly a scientific study, but I just scrolled down part of the first column of the Stanford Law School faculty directory, and the law degrees (J.D. and otherwise) read something like: Berkeley, Yale, Yale, Harvard, Yale, Stanford, Northwestern, Chicago, Yale, Harvard, Yale, Yale, Northwestern, Harvard, Stanford, Berkeley. Somehow I don't see the Yale Ph.D. in Law causing a seismic shift at Stanford or its peers.
Nor do I see a big trend toward Yale Ph.D.s in Law doing a lot of teaching of civ pro at fourth tier schools.
Nor do I see enough volume, given the time commitment, to having a significant impact on the supply of entry-level law professors at mid-range schools. There are 800-1,000 FAR entries a year, and 100-150 new hires a year. How many of those 100-150 are going to be taken by candidates who wouldn't otherwise be in the pool? Indeed, my guess is that, if anything, the program[s] will cannibalize other Ph.D. programs, and perhaps a few of the existing VAP programs or other paths to the legal professoriat. (That's a supply-side analysis. On the demand side, were I the dean of a non-elite school, I'd be wary of having a faculty dominated by Ph.D.s in Law in terms of intellectual diversity and for its effect on my relationships with other constituencies, like the alumni base.)
The real question, it seems to me, is whether this portends the Great Schism, the differentiated legal education system - "research-oriented law schools [co-existing] alongside law schools that focus on training good lawyers at a reasonable cost" - that Brian Tamanaha advocates. (Failing Law Schools, pp. 172-76.)
Again, call me a skeptic. Apart from issues of pure contraction (i.e., schools get smaller, by hook, crook, implosion, or design), the vast majority of non-elite but solid schools won't have the luxury either of being the Department of Legal Studies populated by Yale Ph.D.s or bare bones practitioner training centers.
As I have argued in the past, those middle-range schools are going to have to find a way to accommodate the scholarly career path of the faculty with the desire of the overwhelming majority of students and alums for practical professional training. Which means that faculty members (as I believe most do now) will have to be committed to both scholarly thinking and first-rate teaching, even if they do not always overlap. And academic leadership will have to be committed to articulating to non-academic constituencies both the nature of a legal academic career and why it can live in harmony (even if not complete overlap) with the obligations of a professional school instructor.