Will Yale Fail?

Correction: The Yale Ph.D. in Law program received roughly 85 applications (I corrected it).  At least my figure of 10,500 was close, a mere rounding error.  Actually, the error was caused by my failure to recheck what the number referred to.

Although the misstated figure was not central to the point of the post, I want to avoid muddying the waters with bad information or detracting from the credibility of our message—I apologize.  Thank you Orin Kerr of The Volokh Conspiracy (and another commenter who thought the number sounded wrong).

The survival of students in the catacombs of the law schools reminds me of Sigourney Weaver’s attempts to outsmart the constantly evolving Alien(s) throughout spaceships, planets, moons, and hundreds of years of time travel.  By the end of the series, she becomes inextricably fused with her nemesis.

Which reminds me…

Yale just chose five new candidates for their flagship Ph.D. program in law.  You must have a J.D. to start this three-year program, which is meant to guide students during the genesis of three publishable law review articles.  The law school intends to use this program to feed graduates into law professorships and federal clerkships, keeping an eye on the Yale graduates on the Supreme Court.

During the first class of this program, the five professors-in-waiting will not pay tuition, and the school provides a small stipend.  Obviously, the students with the intelligence to get one of the five spots out of the roughly 85 applicants—yet, the students not quite well-situation enough on a favorable career path after law school to not mind bowing out of the real world and returning for another three years of zero-salary law-schooling—would probably not have paid tens-of-thousands of dollars to attend a risky three-year law program in a newly invented degree.  However, once the first class graduates in three years, and Yale can brag (presumably) about how well all of the double-doctors* are doing, watch as the other elite law schools develop similar programs. 

*(Oh, did you forget, a J.D. is also technically a doctor.  What’s the problem—don’t you feel like a doctor?).

Like most Ph.D. programs, the absence of tuition revenue does not mean that the school is losing money.  The students will teach introductory classes in exchange for their living stipend of $30,000—much cheaper than paying full-time adjuncts.  Another bonus exists: the professors teach for the law school or for other graduate departments, so the extra expense of faculty salary is relatively tiny.  Instead of establishing a new faculty from scratch, Yale just throws a little extra money and “prestige” towards a few bored tenured professors to teach an extra workshop or act as a thesis advisor.

The program creates another tier in the law school hierarchy.  Above the Law reported on Yale’s announcement of this new program many months ago, and my younger law-professor source tells me that his peers are watching this program closely.  After all, it could render many of the younger adjuncts less desirable or even obsolete as the world of the credential-obsessed law school faculties starts to embrace this new “top-rung” of legal education.

On the other hand, there is the possibility that Yale’s program, opening during the worst lawyer glut ever, may fail because everyone else in the legal education world that matters may reject the value of the degree.  In these hard times, what law school administrator wants to worry about adding a new program to keep up with the Joneses, especially if they cannot attach a six-figure price tag to it?  Many of the interviewed law professors with J.D. degrees from Yale sounded hostile toward the program—which makes sense, as it threatens their own position on top of the credentialing heap.  Older professors sounded skeptical about the new degree as well, wondering what value it adds other than providing a student with time to write articles and to have workshops edit the material. 

Frankly, the description of the Ph.D. program on Yale’s website sounds remarkably similar to the Creative Writing Master of Fine Arts (M.F.A.).  The goal of both the M.F.A and the Ph.D. in Law is the development and publication of written work for an almost exclusively academic audience.  The publication system, including the gaming of submissions and acceptances, is remarkably similar to literary journals like The Paris Review or The New Yorker.  Like those major literary journals/magazines, most of the major law reviews publish articles based on the author’s name, not on the writing, and a Yale Ph.D., along with the ensuring connections to major journals, is sure to give people an edge in this system.

Many of the older professors, some with actual practice backgrounds from the days when law schools cared about such experience, have discussed the negative attitude that some Supreme Court and Circuit Court judges express toward law review articles.  Sure, the Supreme Court will occasionally cite an unusually good law review article in an important opinion.  However, on those rare occasions, they normally cite an article that reports on independent social science research and that accompanies an amicus brief focusing on this research.  In other words, one needs more skills in the social science research disciplines, not the Socratic issue-spotter “discipline” perfected by the top 2% of every law school class, to write law review articles that anyone with power cares about reading and citing.

Ultimately, the value of the Ph.D. degree in this glutted environment seems dubious, and it seems like the development of another degree-system (LL.M. anyone?) that will benefit the school more than the graduates.  The Ph.D. graduates will probably not be any more attractive to law firms—probably less-so—and it seems like a system designed mainly to feed people into clerkships or academia.  And if one is aiming for a law school professorship, many of the newer tenure-track professors already have a Ph.D. in another field in addition to their J.D.

Given these realities, the program seems redundant and the timing strange.  Law school academia is already downsizing, even some higher-ranked schools, and federal clerkships will always have fierce competition, even for a double-doctor from Yale, as most judges only care about where someone went to law school.  Undoubtedly, Yale will be promoting the new degree so that confused old judges will know how prestigious it is.  Of course, there is no guarantee that they will care.

Frankly, the degree just seems like one more step in the legal hierarchy designed to benefit the inner Ivy-League circle and to create more barriers between lawyers and law professors.  Is this the first step in a system that will require this extra degree before one becomes eligible for a professorship or a high-level clerkship as well?  If so, this resembles the problem of the Creative Writing M.F.A., which used to be a terminal degree qualifying one to teach college writing but which now represents just the first step in a 6-7 year Creative Writing Ph.D.  No, I am not kidding. 

One can always hope that old federal judges will loath the idea of younger people with “more credentials.”  It will seem pretentious.  Regardless, the Ph.D. in Law looks like a degree designed to keep law professors even more removed from the actual practice of law.  In the future, all law professors will have Ivy-League degrees, 6-7 years of graduate education, and zero years of practice experience.  Oh, wait a minute…