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