The Ph.D. Rises in American Law Schools, 1960-2011: What Does It Mean for Legal Education?

Journal of Legal Education, Feb 2016

By Justin McCrary, Joy Milligan, and James Phillips, Published on 02/01/16

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The Ph.D. Rises in American Law Schools, 1960-2011: What Does It Mean for Legal Education?

Journal of Legal Education The Ph.D. Rises in American Law Schools, 1960-2011: What D oes It Mean for Legal Education? Justin McCrary 0 Joy Milligan 0 James Phillips 0 0 Justin McCrary is a Professor of Law at University of California, Berkeley; the Director of the Social Sciences Data Laboratory (D-Lab), UC Berkeley; and a Faculty Research Associate with Bruce, Lauren Edelman, Kristen Holmquist, Anne Joseph O'Connell, and Bertrall Ross for their extremely helpful comments, and Andrew Chang , Byron Chiu, Radhika Kannan, Donna Kim, Katherine Li, Livia Maas , and Kyle See for their excellent research assistance. Listed order of authorship is alphabetical , USA Joy Milligan is a Ph.D. candidate in Jurisprudence & Social Policy at University of California, Berkeley. James Phillips is a Ph.D. candidate in Jurisprudence & Social Policy at University of California, Berkeley. See Deborah Jones Merritt, The Job Gap, The Money Gap, and the Responsibility of Legal Educators, 41 WASH. U. J.L. & POL'Y 1, 2 (2013) (noting the “job gap” between number of law graduates and number of available jobs, and the “money gap” between increase in tuition and decline in starting salaries). Introduction Legal academia is in existential crisis, or so it’s been argued in books, blogs, and The New York Times.1 To the degree the concerns arise from very high tuition costs and too many lawyers relative to demand,2 market processes may correct the underlying problems.3 Nonetheless, the contraction has triggered a deeper debate about the goals of legal education. Some argue that law schools should return to the core mission of training lawyers for practice.4 Others believe that law schools should instead prioritize academic scholarship, and do so at least in part by adopting the methods of the social sciences and other disciplines.5 To some, this debate symbolizes a fundamental choice that law schools must make concerning their future path: Focus on real-world practice or the pursuit of scholarly knowledge? Many others point out that it is unnecessary to make such a stark choice, given that the goals can coexist (and have for many decades, despite recurring episodes of conflict over and perceived crisis in legal education).6 The debate over law schools’ futures has been accompanied by what appears to be a significant long-term trend. Anecdotal reports and past studies suggest that law schools are hiring more and more Ph.D.s into tenure-track positions. Such a trend might itself shape the future of legal education. If law faculties increasingly include scholars trained in academic disciplines outside law, law schools’ priorities in subsequent hiring, as well as curricular and other institutional choices, may shift simply as a result of the changing composition of faculty.7 If faculties tend to reproduce themselves over time, past trends might 4. E.g., John Lande, Reforming Legal Education to Prepare Law Students Optimally for Real-World Practice, 2013 J. DISP. RESOL. 1, 1; Bronner, supra note 3, at A1 (citing USC professor’s suggestion that “big corporations [are] dissatisfied with what they see as the overly academic training at elite law schools.”); David Segal, What They Don’t Teach Law Students: Lawyering, N.Y. TIMES, Nov. 20, 2011, at A1; see also WILLIAM M. SULLIVAN ET AL., THE CARNEGIE FOUND. FOR THE ADVANCEMENT OF TEACHING, EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAW (2007) (suggesting that law schools should integrate more practical and ethical training into their curricula, alongside legal analytic training). Proponents of these views have been less vocal in recent debates. But cf. Christopher Edley, Jr., Fiat Flux: Evolving Purposes and Ideals of the Great American Public Law School, 100 CALIF. L. REV. 313, 315, 318 (2012) (noting trend toward cross-pollination with other disciplines and suggesting that the modern law school has been “enriched by diverse, Ph.D.-trained faculty”); see also David Van Zandt, Discipline-Based Faculty, 53 J. LEGAL EDUC. 332, 335 (2003) (in an earlier era, arguing in favor of hiring “academics with a strong disciplinary training in one of the social sciences . . . who are also well-trained lawyers.”). See A. Benjamin Spencer, The Law School Critique in Historical Perspective, 69 WASH. & LEE L. REV. 1949, 1956-58 (2012) (suggesting that the critique that law schools are not sufficiently practice-oriented has been heard for the past 130 years and noting that both missions can coexist); see also Kristen Holmquist, Challenging Carnegie, 61 J. LEGAL EDUC. 353, 354 (2012) (“In 1933, Jerome Frank famously called for transforming ‘law schools’ into ‘lawyer schools.’”). Presumably those with Ph.D.-level training are likely to prioritize the production of academic research, and they are less likely to have significant practice experience. See Lynn M. LoPucki, Dawn of the Discipline-Based Law Faculty, 65 J. LEGAL EDUC. 506, 508, 531 (Table 13) (2016) (reporting substantial disparities in pract (...truncated)


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Justin McCrary, Joy Milligan, James Phillips. The Ph.D. Rises in American Law Schools, 1960-2011: What Does It Mean for Legal Education?, Journal of Legal Education, 2016, pp. 543-579, Volume 65, Issue 3,