PhD/JDs: Fads or Future?

Llewellyn Knew All About Lamposts

Llewellyn Knew All About Lamposts

My post on the value of having a PhD in the academic hiring market of 2015 has gotten a surprising amount of attention. I thought I’d respond to some of that feedback here.

By email and by blog, I’ve gotten pushback from those who continue to contest that we’re in an empirical “bubble.”  I take that to mean a fad – a passing interest –rather than an empirical claim that we are valuing work or candidates at more than their intrinsic worth. (How could we get any handle on either side of that equation!) My point about the economics of supply-side data is that it’s a trend that is only going to get stronger in the future. Larry Ribstein certainly is correct to observe that this creates a “looking-under-the-lampost” problem. But of course, legal academics have been in a century-long crouch under a lamppost of their very own. As Llewellyn said:

“I am a prey, as is every may who tries to work with law, to the apperceptive mass . . . [T]he appellate courts make access to their work convenient. They issue reports, printed, bound, to be had all gathered for me in libraries. The convenient source of information lures.” (Bramble Bush)

Looking at newly cheap data about legal institutions encourages people to run fast regressions without thinking. But reading opinions, which are free, has encouraged thousands of legal articles about a dataset which is biased & shaped by selection. (Irrational behavior in response to a “radical price“? Nah.)  Truly sophisticated empirical work doesn’t discount the role of opinions in shaping legal norms, but it does conclude that opinions are skewed and rhetorically hot versions of what judges do, and thus unrepresentative of how practically-grounded lawyers make judgments about how to litigate their cases. Making that insight concrete is but one of the many projects undertaken by the New Legal Realists. Others – law and psychology, law and criminology, cultural cognition, etc. – together convince me that the future of the empirical revolution is pretty bright. And having a PhD/JD is an increasingly important entry credential in the field.

That said, I agree with Larry completely about some of the dangers of getting a PhD, i.e., overspecialization, small-thinking, and looking like “lines” rather than “snowballs. I agree as well that economic pressures will increase the value of law-and-business training, and decrease the value of jurisprudence, though I think the latter courses (outside of elite institutions) are really small parts of the hiring market. The question, for me, is to try to imagine what the typical ideal candidate would look like in 5-6 years, in fields that produce the majority of new hires. Generally, that’s someone who will teach one of the first year courses and who can add a large survey second year course to the pile (contracts & corporations; civ pro & advanced civ pro or evidence; torts & a federal statutory course; con law & fed courts). I look at the first of those pairs and I see immense opportunities for empirical and cross-disciplinary work, and thus lots of returns to getting more methods training.

Others have emailed that I shouldn’t have taken a pot-shot against political scientists writing about law.  I wrote “If law professors don’t write about courts, contracts, crimes, or property using statistics, then political scientists will do so, badly, and will eat our market in shaping legal policy.”  To my poly-sci friends, I admit I was unnecessarily snarky.  However, I do think that lots of work in political science and courts, particularly early work, simply brushed past the influence of legal institutions, ignored procedure, and pooh-poohed the force of selection. And isn’t it time to focus more on trial courts? How many times can you write a paper about ideological voting on a political court and draw conclusions about a system that is dominated by cases that are controlled by precedent?

Orin Kerr offers the following characteristically pragmatic comment: “the track record of PhD-versus-non-PhD hires over the next decade will play a significant role in determining the long-term picture of how much the academy values the credential”. I think this is true, but I don’t know how people will measure it except for anecdotally. As Kate Litvak points out here, measuring the extra influence of having a PhD runs into insurmountable endogeneity problems.

“Suppose we find that people with PhDs write more and better. This could be because PhD training adds value. Or it could be because smarter, more energetic, more ambitious people choose to get PhDs — and they are also the ones who write more and better, for reasons that have nothing to do with their PhD training. Or the opposite could be true…”

While there are ways of thinking about quality that don’t rely on numbers (thank goodness) I don’t know whether such judgments will be sufficiently coherent and strong to press against the practical and economic considerations that I discussed in my post. Simply put, a JD/PhD candidate will usually be better trained, more polished, and will have more publications than an equivalently situated Fellow. Since Fellowships are more likely (in 2015) to lead to VAPs than to tenure track offers, if you are choosing one path or another, I think the better strategy is the PhD.

Finally, a few people wrote in and recommended an SJD, particularly from HLS, as a distinct option that has (in recent years) had a really good track record. I don’t know enough about that program to judge, and I welcome comments on it.

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4 Responses

  1. Matt Bodie says:

    Dave, you seem to be saying that Ph.D. = empirical expertise. Roberta Romano has counseled against an econ Ph.D. because she thought it was empirical enough. As she wrote in “After the Revolution in Corporate Law”:

    “[T]he building blocks of the revolution in corporate law originate most prominently in modern finance, which (as hopefully is clear) is a specialized field of economics. As a consequence, there is a highly imperfect match between the body of knowledge imparted in an economics Ph.D. program and that which is critical for analyzing corporate law issues, and particularly for the direction in which the field has been moving, using quantitative methods.”

    I’m curious — which Ph.D. do you think is most appropriate for the new empiricism? Economics? Finance? Statistics? Political Science? Social Psychology? Sociology? If any of these could be appropriate, isn’t the basic statistical methodology, paired with a grounding in law, enough to do the work of the new empiricism?

  2. A.J. Sutter says:

    Maybe Matt could be more explicit about the meaning of “appropriate” — appropriate for getting hired, or appropriate for shedding useful light on the problems at issue?

  3. Dave,

    I understand one of your areas of expertise is ELS, but a few points (I am a JD/PhD):

    First, I know you are cognizant of this, but it’s critical to avoid making the common error of equating empiricism with quantitative analysis. IMO, this is neither what early modern natural philosophers understood in their attempts to reclaim the term “empirick” nor does it cover the incredible variety of methods used to investigate facts about the state of the world. Obviously, doctoral training for quantitative analysis may or may not be important (though such methods are not my AOS, I tend to share your views that it is), but the various skills and methods one can learn in doctoral programs to do empirical studies is assuredly not reducible to numbers.

    Second, and probably more important, what of the many, many different kinds of doctoral degrees and training that really have little to do with empirical studies? Reading your posts on this subject, it sounds as if the case you are making is that Ph.Ds will grow in importance to the legal academy concomitant with the increasing need for empirical analyses. I don’t really disagree with this, but submit that there might be something important about the sustained study and practice of knowledge modalities and methods that are not focused on empirical investigations in the narrow sense of the term.

    This is my ox, most certainly, since my Ph.D is in the humanities, but my sense is that whatever the importance of the latter in enhancing legal teaching & scholarship, having legal scholars trained in, e.g., history, ethics, literature is no less significant than having legal scholars trained in economics, political science, etc.

    There are methods to the humanities disciplines, and there is no good reason, IMO, for thinking that the kind of training and rigor one (ideally) learns in the pursuit of a Ph.D in those fields is any less significant or important than that needed for fields intended to promote empirical (quantitative?) data.

    I still prefer Rick Hills’s post on a closely related subject.

    JMO.

  4. A.J. Sutter says:

    Daniel, you make an excellent point. Not only the humanities but also the social sciences rely on qualitative methods of research. For example, without qualitative research it’s not possible to support the causal explanations that ELS folks seem to love to toss around. Qualitative research can even help you to generate hypotheses you can examine statistically, but that you might not have been able to imagine on your own. People say, and do, the darndest things.

    Further to Matt’s comment, there is some discussion of Romano’s POV here that may bear on your question. The cynicism of my earlier comment in this thread wasn’t directed at you, but at the hiring committees that might share Romano’s view of the profession.