Who Could Be Hired Today?

The trend in hiring law professors with graduate training in other disciplines as well as law degrees is not new; it’s been underway at least since I was a student (1988-1991). Some of the best classes I took were with individuals who had such backgrounds. But the emphasis has become even more intense in recent years. It is no longer considered obligatory to put in a few years doing actual legal work, before signing up for the AALS faculty recruitment conference.

There are various reasons for this phenomenon, including the ever rising demand that even entry-level faculty have publications already in hand; the institutional interest in rising in the rankings, on the supposition that scholars with more credentials improve overall reputation; the constant interest in being more academic in orientation and avoiding the stigma of being perceived of as a merely “trade school;” and of course the tendency of faculty to replicate themselves, so that colleagues with doctorates prefer candidates with the same. It does not seem, however, that there is any particular correlation of multi-disciplinary training with conventional political preferences: there are economics and history and literature Ph.Ds whose theories and models are conservative, as there are whose work is liberal.

While it is better that those of us whose research cross over into other fields (as mine does) are trained formally, rather than dilettantes (as I am), I have a concern that we will see this new breed of law professor not as one of many valuable types an institution should recruit and nurture but rather as the best and the only type that matters — to the exclusion of those with substantial practice experience, those who would teach in clinical programs, and those who produce the sort of doctrinal analysis that was perfectly respectable a generation ago and valuable to judges and lawyers today still. It does a disservice to our students, among others, if we become so enamored with our own speculations and engrossed in impressing one another with our citations to Wittgenstein (and, yes, I know enough about Wittgenstein to distinguish between the earlier and the later) that we forget we earn our keep by training individuals who by and large become advocates and counselors for causes and clients. Some of us should do work that is of greater interest to sociologists, but some of us also should do work that is of greater interest to the bench and the bar; others of us will try our best to do a little of each. These are all worthwhile contributions.

It is a common observation among us that “I couldn’t be hired today,” certainly those of us who have no better than a naked J.D. Curiously, we treat this development as if it were a force of market dynamics. However, it is very much within our collective control. Faculty governance is at its strongest in the decisions about who to invite to join the body, and all it takes is a few members of an Appointments Committee to point out the strengths of the applicants who would have been the norm only a short while ago.

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6 Responses

  1. Orin Kerr says:

    Very good post. Two thoughts in response:

    First, I think it’s worth noting that the percentage of entry-level law professors with Ph.Ds is still quite low: About 15% of the total. Granted, some specific schools hire lots of Ph.Ds, and the credential is a very desirable one these days on the law hiring front — leading to many placements at top schools. Still, it’s still very much in the minority market-wide.

    Second, it seems to me that the value of a Ph.D. degree to get hired at the entry level is clear, but that the long run connection between the degree and top scholarship remains somewhat uncertain. My sense is that, at present, a certain amount of Ph.D. hiring is based on an expectation that a candidate with a Ph.D. will on average have a greater scholarly impact than those without. That expectation may or may not be fulfilled: We just don’t know yet, as it’s just too early to tell.

    In 20 or 30 years, it may turn out that the really important scholars in particular subfields have Ph.D.s. On the other hand, it may turn out that they don’t. If, over time, hires with Ph.Ds end up having no more scholarly impact than hires that don’t have them (or less, on average), I suspect that will lead to a rethinking of the value of the degree for candidates in that particular area of law.

  2. bill says:

    I don’t understand the craze for hiring JD/Ph.D’s relative to say, JD/M.A.s, particularly in certain fields (economics, psychology) where mastering the basic method might be the real advantage to doing legal scholarship.

    It’s not clear that the additional several years on a dissertation is a better use of time than alternative uses such as legal practice, judicial clerkships, government service, VAPing, etc., once one is done with graduate classwork.

    It wouldn’t surprise me if the M.A. is undervalued in the market.

  3. Anon says:

    I think the Ph.D. requirement only applies to white, heterosexual males. . .

  4. The best professor I had in my entire legal education had a Ph.D, and didn’t even have a JD.

    Nevertheless, that anecdote aside, it seems quite asinine that an industry whose job it is to train future lawyers is trending toward a requirement that all but ensures that the teacher has never actually done the job that he is supposed to be showing others how to do.

    IMO, there should be a rebuttable presumption that a Ph.D. is UNqualified to teach in a law school.

  5. ohwilleke says:

    Interestingly, the people who write a majority of the text of the casebooks that American law students buy (and sometimes even read), i.e. American judges, are almost universally individuals with a J.D. but not other degree, who enter their current profession of judging after long and successful careers as practicing attorneys.

    Also notably, in Europe, where judicial opinions are not as influential in intepreting the law relative to academic treatises, which are more influential in Europe, judging is a first career where you typically start in traffic court and work your way up, while most law professors maintain part-time private law practices until they finally earn their full professorships.

    Apparently, a disconnect from private practice is a path to irrelevance and reduced power in the larger society.