Comparing Law Professors With Doctorates to Those Without Doctorates

Someone needs to do a study on this.

|The Volokh Conspiracy |

Sarah Lawsky's valuable report about this year's entry-level law professor hires is out. And I was interested to see a trend: Both this year and last year, about half of the entry-level law professor hires have doctorate degrees.   The shift toward candidates with doctorates is not new, of course.  And it has been written about before, most memorably in Lynn LoPucki's article Dawn of the Discipline-Based Law Faculty.

Reading over Sarah's report, it occurred to me that someone should study a question that I don't think has yet been answered: Is the scholarly trajectory of U.S. law professors with doctorates different from that of U.S. law professors without doctorates?  And if so, how?

Here's my thinking.  In the current entry-level market, having a doctorate gives candidates a significant advantage.  Among the reasons for this, I think, is that law schools tend to have high tenure rates.  This makes hiring committees relatively risk-averse.  When hiring an entry-level candidate, schools want clear and objective evidence that the candidate is going to become and stay a productive scholar.  They want evidence that a candidate has scholarly discipline, an interest in ideas, and a methodology that seems likely to bear scholarly fruit.

A doctorate degree can help make that case.  Imagine you're an appointments committee chair going through a large pile of entry-level resumes.  You see a lot of smart and accomplished junior lawyers.  But who is going to be a committed scholar?  A candidate with a doctorate will seem more likely to have the qualities you're looking for than one without. Getting the degree shows scholarly discipline.  The subject-matter training teaches a methodology.  And the candidate's dissertation shows the interest in ideas and (hopefully) produces the fruit.  If you're looking for a proxy that plausibly tracks future scholarly productivity and impact, a doctorate degree can seem like a decent bet.  And I think that's a significant part of the reason why the entry-level market favors candidates with doctorates.

The particularly interesting part of this, in my view, is that I think we now have enough professors both with and without doctorates to test whether our intuitions are correct.  The question is, has the market accurately assessed the value of doctorates?  Does having a doctorate signal what we think it signals about future productivity and impact?  And more broadly, is the scholarly trajectory of U.S. law professors with doctorates different from that of U.S. law professors without doctorates?

There would be various ways to try to measure this, of course.  Perhaps you could try to measure scholarly impact, such as by counting citations on Westlaw or on HeinOnline.  Or maybe instead you could compare scholarly output, such as by counting publications of various kinds. I don't have any particular ideas about what approach (or combination of approaches) is the least flawed.  But it seems like something that could be a really interesting empirical study that could also shed light on a very important trend in legal academia.

 

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  1. At what point in time did a doctorate in jurisprudence cease being thought of as a doctorate? I am fully aware of what Kerr is saying in this post with regards to Ph.D. applicants, but it still strikes me as odd that he talks about a doctorate like J.D.’s don’t have one. That his assumption is so embedded that the post doesn’t even have to mention the difference between doctorate degrees for it to make sense to the reader, seems to say a lot about the JD degree.

    If those who have a doctorate in jurisprudence don’t even think of themselves as having a doctorate, maybe it’s time to rename the degree and find different initials.

    1. Quantum, I think the renaming already happened: Around 50 years ago, schools relabeled their “LL.B” degree a “J.D.” degree to make it sound like a more advanced and prestigious degree.

      1. Prof Kerr is correct. Like a medical doctor, that level of degree was (and remains) the equivalent of a Masters degree in any other field.

        1. Correct, but those with law degrees are more likely to strut it around like a peacock, unlike those with an MA or MS. Oh, and anybody who puts “esquire” after his or her name is a douche on principle.

          1. It’s a convention _within_ the legal profession. It allows the opportunity to show respect to your adversary.

            I might tend to agree w/ your assessment if it is used inordinately _beyond_ the legal profession.

            1. Just to clarify, I was referring to use of the “Esq.” suffix. If one used the Dr. prefix, then it would unquestionably be unjustified “strutting”.

              I’m unaware of any frequent use of the latter. Now one w/ a J.S.D. is certainly entitled to use the Dr. prefix.

              1. Alright, Esquire on a business card is like putting out a shingle, I suppose I’m talking about those who put it is 16 point font on their email signature. I think you know the type.

                There is also an unjustified use of the Dr. prefix to include strutting. I know to many professors who want DR tattooed on their forehead so everyone can see how smart they are when in reality degree =/= smarts.

                Look, I get being proud of your academic achievements, but I’m going to quote “Dr.” Russ Roberts of econ talk here: “You know, David, I like to joke, when people ask if I’m a doctor, I say I am–because I have a Ph.D. in economics–I say, ‘I am, but not the kind that helps people.'”

              2. “Just to clarify, I was referring to use of the “Esq.” suffix. If one used the Dr. prefix, then it would unquestionably be unjustified “strutting”.”

                Meh. I’ll cede professional-school graduates the right to use “Dr.” as a prefix in academic circles generally, and not just in legal circles.

                The fact is, nobody cares about how academically-qualified their lawyer is… they care if the SOB knows how to win.

        2. Based on what I’ve been able to look up on it, the LLB was an undergraduate degree, not even equivalent to a Masters, so more went on with the change from LLB to JD than just renaming the degree.

          1. There are places right now where learning to be a lawyer is something undergraduates do.
            The real change is when we stopped allowing people to be lawyers just because they had the skill and ability (learned by “reading law” and guidance by a skilled practitioner) and started saying the ONLY way to be qualified as a lawyer was to go to school.

            1. What US state currently allows someone to take the bar exam with out a JD? From what I’ve read, there are no Universities/colleges/law schools in the US that still offer an undergraduate LLB

              1. There are four states where you can take the bar exam without a JD. California, Virginia, Vermont, and Washington

                ” From what I’ve read, there are no Universities/colleges/law schools in the US that still offer an undergraduate LLB”

                Turns out, there are countries that aren’t the United States, and some of them have lawyers, AND universities.

        3. “Prof Kerr is correct. Like a medical doctor, that level of degree was (and remains) the equivalent of a Masters degree in any other field.”

          That’s an oversimplification. Typically, what makes a doctorate degree a doctorate is the fact that it’s a terminal degree… The highest degree you can earn.
          So, a professional degree in law or medicine is not the same as a university doctorate… they’re all graduate degrees. But some Master’s are lesser and some greater, in terms of effort and prestige. Nobody’s telling medical doctors that they aren’t “really” doctors because they went straight from undergraduate to professional school without earning an intermediate degree.

          On the other hand, law is unique, as far as I know, in having master’s degrees higher than doctorate degrees. Some contexts might treat professional doctorates different from university doctorates; some might not.

          1. re: doctorate as the terminal degree

            I don’t think that’s right, James. Even back in the day, there were medical degrees available beyond the level that would let you call yourself a “doctor”. You are correct that some Masters degrees are greater or lesser (a Masters in underwater basketweaving still won’t get you very far) but there definitely are pedants who assert (with some historical justification) that medical doctors are not “real” doctors because they don’t have a doctorate.

            1. “there definitely are pedants who assert (with some historical justification) that medical doctors are not “real” doctors because they don’t have a doctorate.”

              Good luck with that.

              1. There is a tradition in the British Royal Navy of calling the ship’s surgeon “Mister” rather than “Doctor”, because their degree is not a “doctorate”.

                However, in the US, to be licensed to practice independently, one must earn a 4-year bachelor’s degree including 3 years of pre-med classes (unlike law where any undergrad degree will do if one scores well on the LSAT), 4 years of medical school, and 3 to 7 years of residency (apprenticeship), depending on the specialty. That’s 8 years in college, as much as is needed for a PHD in most fields (if one can avoid spending years as low-paid labor for a professor). And each of those years is much more demanding than anything required of a PHD candidate in Education, for example.

                And it’s at least 11 years total. I know of only two other groups that commonly take that long to qualify for their profession: lawyers who have trouble passing the bar exam after 7 years in school, and PHD candidates in liberal arts and science who become so interested in the whole breadth of their field that they fail to concentrate on the narrow area of their thesis (or perhaps simply fear graduating for the last time and going out into the world).

                1. To continue: In theory, there is a difference between MD and LLD programs and PhD programs, which is the research requirement. Most medical doctors do not need to develop new treatments, and only a few lawyers discover new legal theories – and if they do, it only counts if the theory succeeds in a courtroom rather than a schoolroom.

                  PhD’s supposedly did original research in their dissertation. BUT there’s a huge caveat here, due to the large number of PhD candidates we have now – far more than there are original ideas left to pursue. So most PhD’s actually repeated earlier research or reinforced some corner of their advisor’s research. And that’s usually not a problem because most fields now graduate several times as many PhD’s as there are openings for professors and researchers, and most of the new PhD’s are going to find jobs where their ability to do original research is irrelevant. (It may be a problem when a faculty hiring committee fails to distinguish a “me too” dissertation from real research, and hires a new PhD that isn’t any good at the research part of the job.)

  2. I understand why aspiring professors will do anything to set themselves apart from the competition. But the reality that law schools may focus on whether a candidate has a Ph. D. is disheartening; it implies that the schools are more concerned with the aspiring professor’s ability to publish. I hire law school graduates to be lawyers. My colleagues and I wish schools would teach students . . . how to be lawyers. Someone much smarter than I suggested we may benefit from two law degrees–one for aspiring lawyers and one for aspiring law professors/academics. As CJ Roberts put it, “What the academy is doing, as far as I can tell, is largely of no use or interest to people who actually practice law.”

    1. ” Someone much smarter than I suggested we may benefit from two law degrees–one for aspiring lawyers and one for aspiring law professors/academics.”

      Look at the transcript. Was the candidate on moot court, or law review? The first prepares lawyers to litigate, the latter to be an academic. Next, look at the work history. Did the candidate take a year clerking for a judge, or go right to work representing clients? Here, the first suggests academia, the latter practice.

      Teaching is a challenge, particularly teaching 60-100 people all at once, as most 1L law classes are that big. Keeping that many people engaged and focused is difficult, particularly when the students all brought portable Internet terminals into class with them. Law schools should focus first on finding people who can teach, then on people who can publish.

      The business of a research university is research; teaching is a side business. The business of a law school is teaching; research is a side business (and not a big one, honestly). A law school that happens to be attached to a research university has to resist the influence of the research university trying to run the law school like a research university.

  3. Doctor, doctor, give me the news
    I got a bad case of gettin’ sued

    1. High bill is going make me ill
      I got a bad case and it’s pro se too

  4. Orin,

    I don’t think you have identified the right cause – but if we reformulate it a bit, you may be on to something.

    Although I’ve never served on an appointments committee, like anyone else who has been teaching for long enough, I’ve seen my share of interesting appointments issues. I don’t think people are risk-averse in the way you describe. Yes, faculties will all talk about productivity and future potential, but the reality is that, nowadays, everyone who gets beyond the initial vetting has displayed qualities that will support optimism bias. Sure, a Ph. D makes candidates more marketable to the overall faculty, but that’s not the same as suggesting, as I think you are, that such credentials are a response to the “lemons” problem.

    On the other hand, law schools are losing their autonomy within the broader university, and this includes decisions on tenure. A generation ago, tenure was determined largely by the law school itself; now it is common for files to be reviewed by a committee drawn from across the campus – with only some of the membership coming from the law school. In this environment, imprimaturs such as a Ph.D – and perhaps more importantly – the possibility of peer-reviewed publications appearing outside the usual student-run journal – will become more important.

    Maybe our disagreement is one of emphasis only; I don’t think law school appointments committees are consciously thinking about the problem the way you describe. But it is possible that the considerations you sketch here may be subtly working their will on candidate selection, just in more roundabout fashion.

    1. Thanks, Adam! My experience may be quirky, but my sense is that committees are more focused on the lemons problem than you suggest. Also interesting re the rest of the university having a voice in tenure decisions; I haven’t myself experienced that.

  5. Just to be clear, we’re not counting a Juris Doctorate as a Doctorate, right?

    1. A 3 year degree which requires no original scholarly work is not a “doctorate”.

      1. This will come as a suprise to the nation’s medical schools.

        1. An MD takes about 4 years, two in school two in rotational work at a hospital or in the field.

          A Phd takes 4-7 years, depending on if the master’s degree is earned “enroute” or not, and the length of time writing the dissertation, which must be original research.

          1. The claim was that non-Ph.D degrees aren’t “real” doctorates. Medical Schools graduate people who (mostly) don’t have Ph.D degrees. What do you call medical school graduates?

  6. Respectfully, don’t ALL law school candidates have doctorate degrees? I mean, unless the law school is hiring a foreigner to teach foreign law, and they hire a practitioner who qualified to practice under a foreign academic scheme where law degrees are undergraduate degrees rather than professional degrees.

    Hasn’t someone who has graduated from law school and practiced professionally show evidence of being a diligent and productive scholar of law?

    The only area of law where a doctorate in something other than law would be particularly useful would be patent law, because of patent law’s dependence on science and technology, a scientific background might be meaningful. But the patent office only requires an undergraduate science degree to practice patent law… not an advanced degree.

    Law schools risk falling into the same trap that the universities did, believing that anyone who can earn a doctorate can teach better than anyone who hasn’t got one. This is not true. The ability to teach requires different skills from the ability to learn and research… there’s overlap, but not identical skills and abilities required.

    1. Law schools risk falling into the same trap that the universities did, believing that anyone who can earn a doctorate can teach better than anyone who hasn’t got one.

      I think you’re mistaken; I don’t think universities believed any such thing. They just didn’t care about teaching skill.

      1. “I don’t think universities believed any such thing.”

        Then you’ve never been to one.

  7. Did you do research, publish results in a peer-reviewed journal (at least 3 original publications, expanding on you premise or legal theory) , and then face a faculty review committee to defend that what you have done is original and extends the canon for others to follow? If not, it ain’t a doctorate. Be satisfied with your LL.B., go forth and multiply.

    1. Medical doctors don’t do research before earning their doctoral degrees, either. Good luck selling the idea that medical doctors aren’t doctors.

      1. Don’t get hung up on Doctor vs Doctorate. A phd is a doctor of philosophy that has a doctorate, a doctor is just a doctor of medicine. Both are doctors, but the medical doctor does not have a doctorate. Though there are medical doctors who have doctorate because they do research.

        1. When you have doctors without doctorates, everybody’s a doctor.

    2. Note: the current JD is described as equivalent to a Masters degree, a Master of Law if you will.

      The LLB, was an undergraduate degree, a Bachelors of Law. JD and LLB are not equivalent.

      1. One of the odd things about practice of law in the US is that people who want to do it are required to prove that they are capable of handling any kind of legal problem (with one exception) in order to be allowed to practice in any field of law. The majority of lawyers then proceed to limit their practice to only some of the fields of law.

        You could probably cut the cost of becoming qualified if you adopted a two-stage system… a limited license that allowed practice in one area of law, with people so licensed then offered the choice to license additional practice fields, or a general license, which would be available only to people who’d been practicing under a limited license for a period of years.

        1. That would require lawyers who already have licenses to make it easier for potential competitors to become actual competitors. It’s not going to happen unless legislatures pass laws to remove the ABA as a gatekeeper – but most of those legislators are licensed lawyers…

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