[Einer Elhauge, guest-blogging, May 23, 2007 at 9:16am] Trackbacks
The Death of Doctrinalism and Its Implications for the Entry-Level Job Market at Law Schools.

Doctrinalism is dead. One cannot get a job at a top law school nowadays as a doctrinal scholar. Or, to put it more precisely, you have to be ten times as good to get a job as a doctrinal scholar as to get one as an interdisciplinary scholar. And even then you cannot get hired at Yale.

Now by doctrinalism I do not mean any scholarship that considers doctrine or takes it seriously. I rather mean the sort of scholarship that simply describes doctrine or that assesses doctrine based solely on formalistic grounds having to do with the logic of it internal structure. It would not, in my book, be doctrinalism to analyze the functional theories that could explain some doctrine or lead to reform of it, or to measure the consequences of doctrine. Heck, that is what I do, and I am not about to declare myself obsolete.

Doctrinalism is dead for a very good reason. It is either too easy or mistaken. The variety of doctrinalism that is too easy consists of the purely descriptive articles. To be sure, good descriptive legal articles require hard work by very-smart, highly-trained lawyers. But the problem is that those sorts of persons are in relatively high supply compared to those who can come up with original ideas or empirical findings, so that such work is not going to get much credit in legal academia, even though it can be quite useful.

The part that is mistaken is the variety of doctrinalism that tries to explain legal results or predict future decisions based purely on formalistic logic. Devoid of any underlying functional theory, these theories turn out to offer little real explanation and serve as poor predictors. The formalisms are just too easy to spin in multiple directions, and we need some underlying theory to explain where the fault lines are likely to be and how judges and lawmakers are likely to be inclined to resolve them.

The one odd exception is Constitutional Law, where doctrinalism still appears to be alive and kicking. I suppose the reason for its exceptional status is that we have nine old persons on the Supreme Court who seem persuaded by doctrinal arguments and have immense power to impose results on the rest of us through constitutional decisions, however poor their underlying policy analysis.

But for the rest of us, the seriousness with which many constitutional scholars still take the task of parsing the precise language of Supreme Court cases that were largely written by law clerks is fairly astonishing and more than a little quaint. Thus, we have the oddity that the marquee legal subject, constitutional law, is also the least intellectually respected among law professors because it is the most doctrinal.

In any event, no law school aims to hire constitutional law scholars on the entry-level job market, so trying to make it as a doctrinalist is a nonstarter. But this raises a problem, because much of law school is spent becoming trained in doing doctrinal analysis. All the good professors also teach theory, but usually not enough theory to make students well-trained in doing the sort of interdisciplinary scholarship one needs to do to get a professorship at a top law school. And as I mentioned in my last post, much of the modern action is in empirical analysis of law, and practically none of us teach how to do that in our law classes.

So how can one overcome this entry barrier? One way is to get both a JD and a PhD. This has described the lion’s share of entry level hires made at Harvard recently. But while this has been a successful approach for us, it creates problems as a systemic approach because very few people get both a JD and a PhD, and whenever one limits the pool of persons from which one picks, one may not get persons with as much raw talent and creativity as if one drew from a broader pool. Much of the most interesting work of the past generation was, after all, done by persons who had a JD but no PhD. One would not want to screen out the next generation’s Richard Posner, Cass Sunstein, Frank Michelman, Mark Roe, Bill Stuntz, Ronald Dworkin, Larry Lessig, Guido Calabresi, Bob Ellickson, Bill Eskridge, Alan Schwartz, or Bruce Ackerman, just because they had no PhD. At least I wouldn’t.

The solution, towards which law schools are steadily moving, is expanding programs for fellowships in law. These fellowships were nonexistent in my time, when people like me got law jobs at top schools like Berkeley based on a job talk jotted down on notecards late at night after working as a clerk. (Not everything was tougher in the old days, despite what us old fogeys like to say.) Since then, these fellowships have exploded.

I run one program, the Harvard Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, that will have eight academic fellows next year, earning $60,000 per year for developing their own scholarship in this crucial area, where the supply of academic candidates has historically fallen far short of law school demand. Harvard’s Climenko Fellowship adds another fourteen. There are Olin Fellows, Berkman Fellows, and Houston fellows and probably many more I am missing. And that is just at Harvard.

These fellowships provide a vital opportunity for aspiring legal academics to steep themselves enough in modern legal theory or empirical analysis to be able to demonstrate some ability to do the sort of nondoctrinal interdisciplinary scholarship the modern academic law market demands. In the future, look for these fellowships to become more and more regularized into a form of quasi-necessary post-doc, with law schools looking mainly to them and to PhD programs for their entry level hires.

What, though, are the implications of the death of doctrinalism for the laterals market? That will be the subject of my posting tomorrow.