To JD/PhD or Not to JD/PhD, That Is the Question

The Berobed Elites, Courtesy of Wikicommons

The Berobed Elites, Courtesy of Wikicommons

The last few comments on this Prawfs thread raise an inquiry as old as the legal blogosphere: does it maximize to get a PhD on top of a JD if you want to get a job in the legal academy, or can you achieve the same ends with a fellowship, or by publication alone? Five years ago, as law fellowships themselves exploded onto the scene,  the purely strategic choice weighed decisively against the PhD outside of a few specialized fields –e.g.,  law and history, law and philosophy, law and corporate finance — where the PhD was a huge value-added on the entry-level market.  But now consider today’s market, and put yourself in the position of an individual about to choose between applying for a two year fellowship or a PhD program, and your goal is to maximize the chance of getting a job at an American law school.  In my view, it’s an easy choice (with a few qualifications): go PhD or go home.   Here’s my reasoning:

(1) The empirical revolution: fellowships generally won’t teach methods.  You need training in methods because it’s no longer socially acceptable to write a one or two methodologically irregular pieces before you get your feet under you.  (A bad trend.)  Moreover, though Larry Ribstein thinks that ELS may be a bubble, I think he’s missing a critical supply-side fact: there’s more work involving legal data than there was previously  in part because it’s cheaper to do, and that economic  trend is accelerating.  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.

(2) VAP positions are the new fellowships: more people than ever are taking as their first teaching job a VAP following a fellowship.  The resulting time-to-tenure-track is starting to look much like the rest of academia, reducing the opportunity costs of a PhD.  Plus, in fellowships you often have to teach courses that are truly unrelated to your research interests.

(3) There are more PhDs in the legal academy every year.  They’ve all of the motivation in the world to demand the training as a credential for entry level hires, and as they age in their schools they will begin to flex their muscles.  Looking ahead to 2015, I’d say that the current cutoff of schools that softly demand a PhD for entry level hires (i.e., 1-10 or thereabouts) will trend toward all of the top tier.  It’s those mid-level schools which are going to be increasingly tied into central universities as budgets crunch, with resulting Provostian pressures.

(4) The job market for non-law academics continues to be worse than that for law professors, creating an ever-larger and more qualitifed pool of folks migrating our way.  Fellows simply can’t easily compete with people with dissertations.

(5) A contrary argument would rely on the Carnegie movement’s focus on increasing skills-education.  But, largely for economic reasons, I think that Carnegie is most likely to change the overall structure of law faculties, with far more use of adjunct instruction. That is, it won’t change who we hire, but it will reduce the number of entry level tenure-track slots we have.

These considerations intentionally ignore the important  question — is this a good thing, or a bad thing, for legal education.  I don’t have a thing to say about that big question which is both novel and interesting.  Maybe you do.  Also, I don’t think that the PhD rule applies (or will) to some kinds of conlaw, evidence, employment law, crim  (where it looks like big theory is holding strong), or tax teachers, and I’m sure there are other nooks I’ve missed.  I’m thinking here of advice for people who want to teach the traditional common law topics, any business or commercial  law subject, or environmental law, health law and international law. That’s a big part of the market, but it’s not all of it.

An entirely separate topic is whether junior scholars without PhDs should get them.  That, my friends, is a question that has been occupying me for some time. And I have no idea what the answer is.

p.s.:  I forgot to mention a key assumption. Someone with a PhD who doesn’t have a JD has almost no chance of landing a job in the legal academy.

p.p.s.:  Larry Ribstein responds to this post here, and makes some characteristically great points. I’ll reply when I can.  [Update: I’ve now replied.]

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8 Responses

  1. Marc DeGirolami says:

    Dave — interesting post, thanks. Was your link to Orin’s discussion of McDonald intended to support the idea that “big theory” still wins the day for constitutional law?

    I’m also curious why you think that criminal law is exempt from the Ph.D. trend — that is, why, say, philosophical sophistication in constructing “big theory” in criminal law would not be more and more desirable as time goes on, just as it has proved desirable in more traditionally philosophical legal disciplines (jurisprudence).

  2. Matt says:

    Like Marc I’d like to hear a bit more about why you think the areas you think are less likely to fit the “PhD rule” have that characteristic. In particular, I’d be interested to know if you mean this as a sociological observation (that is, you see a fair number of people being hired even by top schools working in these areas w/o PhDs and think much of the best work being published in these areas is done by people w/o PhDs) or if it’s more of a normative claim- for some reason or other these areas are less likely, to your mind, to benefit from or require the sort of training one gets in a PhD program. If it’s the later, I’d be very interested to hear why you think this. I’m not sure that I disagree- I don’t have a well-formed opinion on the specific subject- so I’d be very interested to hear your thoughts. (I should say that a fair amount of the work I find most interesting in several of these areas recently has been done by people w/ PhDs as well as law degrees, or by people w/ PhDs working closely with law professors. I’d gladly provide examples but won’t bother right now.)

  3. dave hoffman says:

    Marc, yes the citation was in the wrong place.

    All of this is anecdotal…but, my thought on crim is that there remains a very strong practice constituency for the class. It’s taught at most schools by people who’ve been prosecutors or defenders. Those people naturally seek replication (for mostly good reasons). That’s not true for tort or contracts teachers, since such practice groups don’t exist in equally defined ways. I have seen amazing cross-disciplinary work in criminal law recently, but as compared to other subjects, I think that the PhD norm for crim isn’t going to spread from the super-elite schools to the rest of the market.

    Evidence fits the same rule as crim — there’s a clear practice-centered route to the job. Tax, for obvious reasons, is a specialized field with its own set of credentials (practice + LLM from NYU). Employment I think is an odd duck — but I tied it for no good reason to my intuitions about con law. Honestly, I think that even in these subjects getting a phd versus a fellowship is a smart bet — but you might have to do something more, like practice in the relevant subfield for more than 12-18 months!

    As I hope my post was clear, I am not endorsing this trend. I’m just predicting where the hiring market is going and offering advice to people starting from scratch today.

  4. Joseph Slater says:

    As someone with a JD and PhD (history), I found this post interesting and mostly persuasive. I think the statement that folks like me have “all of the motivation in the world to demand the training as a credential for entry level hires,” is, however, an overstatement. In the ten years I’ve been at my school, including the two when I was chair of our appointments committee, I don’t recall me (or the other PhDs on the faculty) demanding or even significantly preferencing candidates with PhDs.

    But maybe my difference with Dave is one of degree, specifically the number of fields he thinks will be increasingly dominated by PhD types. I infer he thinks that most legal academic fields will be dominated by PhDs, with some fields as exceptions. I’m guessing it will be the other way around: some specifically interdisciplinary fields will increasing demand PhDs (legal history, law and econ, and some other specialized areas). But faculties won’t think people need PhDs to teach in the great bulk of law school courses or to research and write in most areas of law.

    I could be wrong, of course, and if I am it will be because law faculties see PhDs as safer bets as publishers. After all, the PhD will have already done a dissertation, a more substantial piece of writing and research than a law school grad will have done. And while the PhD may not have a lot of experience actually doing legal work, it’s not as if law schools have traditionally valued lots of work experience. But they should.

    Finally, I think you’re right to separate “elite” law schools from others, at least to the extent that I would guess that “others” would be less willing to stack their faculties with a bunch of PhDs. But we’ll see.

  5. Anon says:

    I wrote that post on prawfsblawg that started this. I am considering getting a PhD or a fellowship. I think you’re missing one thing in your analysis. That is, schools view the PhD as a value in and of itself. I posted this on in that thread:

    “Also, I think you are categorically wrong if you believe that the PhD itself doesn’t give you instant cache. Of course, a random PhD in history won’t mean anything. But if you keep publications constant, but you give candidate A a PhD and while candidate B does not have one, candidate A will be considered the better candidate. Even if candidate B has the equivalent to a dissertation finished he will be considered a lesser candidate. Many of the top schools, including Penn, Berkeley, Northwestern hire almost exclusively candidates with PhDs. And it’s not because that PhD doesn’t mean anything.”

    You state that a fellowship candidate cannot compete with a grad school candidate because they won’t have a dissertation. I think you’re wrong to think that the dissertation is the key. It’s the PhD and what that signals to schools.