Tuesday, February 22, 2011

The Ph.D. versus J.D. Credential For Law Professors

Stephen Bainbridge apparently thinks that law schools would do a better job of teaching people to "think like a lawyer" if more of the faculty only had J.D. degrees and did not have Ph.D. credentials.

First, in response to Bainbridge's argument that a few years of "top law firm" experience is to be highly valued, I don't think the theory that a "top law firm" is the best place to get experience doing "real law" is correct. At least not for a longer period of time than the typical person who aspires to be a legal academic will probably work there for, since one does not usually get really great experience at a big law firm until they work their way up the ranks. One would probably get better experience at a smaller law firm where one would deal with cases more holistically, rather than specializing so narrowly in a small slice of a case, typically with no or minimal client contact, as starting associates at large law firms tend to do.

I would further argue, and here I agree with Richard Posner, that the concept of "thinking like a lawyer" isn't really much different than "thinking logically about law" with the recognition that judges are not always logical and sometimes there is quite a bit of logical existent ambiguity that results in uncertain answers to legal questions. (And also, that sometimes ideology and culture play a much more powerful role than mere logic in judicial decisions.) That is, the whole idea that "thinking like a lawyer" is somehow radically different than other ways of thinking is simply fallacious.

Basically, "thinking like a lawyer" is not rocket science. Far from it. That academics from other disciplines would be incapable of providing as good insight or even superior insight into how to "think like a lawyer" is simply incorrect. Because the key to learning to "think like a lawyer" is to learn to think. Period. And also, the goal should not merely be to learn to think like "a lawyer" since many lawyers are average thinkers, but instead to improve one's thinking significantly above the mean. To do that, it is appropriate to consider the ways of thinking that arise from a variety of academic disciplines.

I think the last thing that law students need is more faculty teaching them to "think like lawyers." What law students need more are two things:

(1) Lots of feedback. As countless studies have shown, feedback is the key to learning. Indeed, often students learn as much from taking a test as they do from studying for a test. Yet in the typical law school class, students are evaluated solely on their performance in a single written final exam rather than being given homework and tests other than the final exam which would give them continual and necessary feedback as they proceed through the semester. A system with such limited feedback is simply an awful system for learning, but it seems to persist as a tradition at law schools nonetheless.

(2) Law schools should strive to provide as many clinical opportunities as possible, and make participation mandatory. If one wants to really learn to think like a real lawyer, then one must do, and not merely read. Basically, one learns what sorts of arguments work well and which ones do not work well from real world experience. One learns that knowing the judge and their peculiarities is actually very important, myths which suggest that there is a universal way to "think like a lawyer" to the contrary notwithstanding. Basically, once again, this comes down to experience, which provides feedback.

So, I would suggest that Bainbridge's thinking about what would make for a better law school is actually quite flawed. A Ph.D. will and should continue to be a very welcome credential, one that adds a lot. Basically, law has a lot to learn from those who get a Ph.D. degrees in anthropology, sociology, statistics, philosophy, economics, or history. Especially since law school itself is not especially consistent and rigorous when compared to the typical Ph.D. program, where graduate students are (or at least should be) closely mentored. For example, a statistician with a Ph.D. has a lot more to offer that the typical generic J.D. with "all the right credentials" on understanding the empirical consequences of legal decisions. A sociologist (who is also likely to have a strong statistical background) has more or at least different insight into potential social consequences of legal decisions than the typical generic J.D.. A real historian has a lot to teach the typical generic J.D. about how to do "real history" instead of "law office history." I could go on.

Having a law faculty with a bunch of Ph.D.s in diverse fields will in fact do much more to enrich both the educational experience of students and the field of law itself than having a faculty dominated by a bunch of Yale Law, Harvard Law, and Stanford Law graduates with nothing more than a vanilla J.D. degree. I say this as an individual who only has a vanilla J.D. from one of the above schools myself.