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November 21, 2011

Ph.D's and a cutting critique

Yesterday, several people forwarded to me this fascinating article from the New York Times.  The critique of law schools presented there cuts to several truths:  That too much of our scholarship has no impact on anything (and goes largely unread), that we are not student-centered enough, and that we in the legal academy are often more focused on impressing one another rather than addressing real problems in our society.

One of the intriguing criticisms in the article centers on the increasing trend toward hiring professors who have a Ph.D., but no legal experience.  I think this is a fair critique, and one which merits close examination as we keep in mind our status as a professional rather than a graduate school.  My own scholarship is almost always narrowly focused on a discrete issue in the real world, and that is intentional-- I don't want to waste my time on things that don't have a chance to solve a problem.  For the same reason, most of the classes I teach consist largely of practical teaching for the real world:  How to write a sentencing memo, for example, or what happens at an initial appearance behind the scenes.  My most recent entry on SSRN argues in favor of more experiential teaching.

Still, we must be discerning in that critique of Ph.D.'s in our midst.  It's unfair to assume that all Ph.D.'s in the legal academy produce work which is disjoined from real-world legal issues. 

In pondering this, I remember that my own experience overlaps with the very start of this trend.  I was a research assistant for the late Stanton Wheeler at Yale Law School, at a time when Prof. Wheeler was still a controversial figure because his background (and Ph.D.) centered on sociology rather than the law. 

Given that, though, there were few legal academics I have come across who are more focused on real-world legal problems than Prof. Wheeler.  This probably is no accident, as his tenure overlapped with the last of the Legal Realists at Yale. 

For example, he is largely remembered for his pioneering book with Kenneth Mann and Austin Sarat, Sitting in Judgment:  The Sentencing of White-Collar Criminals.  That book was centered on 51 in-depth interviews with federal judges; Wheeler went right to the source in describing how the law actually works. 

Rather than critiquing Ph.D.'s in the academy, we need to look more closely at the scholarship all legal scholars are producing, and rethink the way we value that work.  Stanton Wheeler was not a lawyer, but few of us produce such valuable and relevant scholarship, or teach such clear-minded truths. 

-- Mark Osler

November 21, 2011 | Permalink


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