As recently as a decade ago, law schools were happy to hire professors with no more than a J.D. degree. That arrangement is officially history, according to a new study.
“This is the beginning of an era in which the PhDs control law faculties,” said Lynn LoPucki, a UCLA School of Law professor who authored the study.
Titled Dawn of the Discipline-Based Law Faculty, the study reviews the entry-level hires of AALS-member law schools between 2011 and 2015, and finds a sharp uptick in the rate at which law schools are hiring faculty members with PhDs. LoPucki believes the trend in favor of PhD law professors has reached a point of no return, potentially cementing a future where law school faculty, are long on degrees and publications — but short on time outside university walls.
The study shows how, in the past decade, PhD candidates have started to dominate law school hiring, especially at elite schools: Of the 100 entry-level hires by top-26 law schools between 2011 and 2015, 48 percent went to candidates with PhDs. More recently, the trend became even more pronounced: Between 2014 and 2015, 66 percent of entry-level hires at the top-26 law schools held PhDs.
LoPucki highlights two potential tipping points: If PhDs continue to grow at historical rates, he predicts, the proportion of PhDs on top-26 faculties will exceed 33 percent in 2019 — the size of a faculty voting bloc needed to veto new hires. By 2028, he predicts PhDs will make up 50 percent of top-26 schools and be able to completely dominate the hiring process.
This trend, if less pronounced, isn’t confined to top schools: “Although Ph.D.-hiring is strongly correlated with school rank, this transformation to discipline-based law faculties will not be confined to the top schools,” LoPucki writes in the study’s abstract. “Already, 11 percent of tenure-track faculty hires in the bottom quartile of law schools have Ph.D.s. When this transformation is complete, the disciplines will effectively control the scholarly agendas of American law schools.”
Citing previous surveys, LoPucki notes that the PhD hiring rate at all AALS-Member law schools has climbed steadily from 11 percent in 1996-2000, to 19 percent in 2000-2009, to 21 percent in 2011-2015.
Brian Leiter, a professor at the University of Chicago Law School, said hiring PhDs makes sense for school administrators looking to up the quality of scholarship, but too many schools are focused on that.
“Law schools in different parts of country often have very different missions,” Leiter said. “Chicago is not going to change, nor is Harvard, nor is Penn, but other law schools facing financial pressures — can they afford to subsidize legal scholarship? The problem is we have one model of what a law school does, which is set by Chicago and Yale and Harvard, and everybody else is trying to do the same thing.”
The trend toward greater academic focus at law schools also conflicts with a growing preference among bar associations for more law school credit hours devoted to practical training. In 2015, for example, the ABA mandated for the first time that law schools require every student to pass at least 6 hours of “experiential learning” — clinics or classes that simulate law practice, both of which require faculty with real world experience.
“It’s not that having a PhD is mutually exclusive with having a professional orientation,” said Washington University Professor Brian Tamanaha. “The difference is people who have a PhD spent many more years grooming their academic careers, while someone with a J.D. might have spent those years in practice.”
According to LoPucki’s study, the differences between the two types of law professor are becoming more pronounced: “J.D.-Ph.D. hiring has created two rapidly separating tracks for entry-level hiring at top twenty-six law schools. Those hired on the J.D.-only track are increasingly likely to have legal experience (defined as law practice or clerking) and likely to have more of it, while those hired on the J.D.-Ph.D. track are decreasingly likely to have legal experience and likely to have less of it.”
LoPucki noted that the rapid increase in PhD hiring in the last two years is due, in part, to the fact that overall hiring was down. But he also pointed out that those numbers still illustrate a basic fact: when law schools have a limited number of hires to hand out, they much prefer people with PhDs.
“Even if the past two years prove to have been aberrational, the overall trend remains unmistakable,” the study says. “Ph.D. hiring is increasing rapidly. The ‘discipline-based law faculty’ envisioned by [former Northwestern Law School Dean] David Van Zandt — one on which nearly every professor has a Ph.D. — is now imminent.”
Leiter agreed. Asked whether PhDs would eventually be obligatory for aspiring law professors at top schools, “That’s easy,” he said. “The answer is yes.”
(UPDATED: This article has been corrected to clarify Brian Leiter’s comments about why law schools hire PhDs.)