PhD/JDs: Fads or Future?
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.