With professors who study computer science, economics, history, and statistics, the Harvard Law School faculty of today touts a wide array of academics, many of whom boast Ph.D.s or scholarly work in other subjects. Yet this was not always the case.
“Somebody who got into a top law school, did very well and then completed a prestigious clerkship was well situated to be hired on the basis of those credentials,” said Law School professor Richard H. Fallon, who attended Yale Law School and clerked for U.S. Supreme Court Justice Lewis F. Powell.
Now, however, the Law School looks for a greater breadth of academic qualifications in its prospective faculty, including “demonstrated scholarly accomplishment, a promising research agenda offering both relevance to legal analysis or law practice, and an ability to present and effectively defend a thesis or argument before faculty members,” according to Law School Dean Martha L. Minow.
As the expectations for aspiring law professors have changed, faculty and administrators say, so has the tenor and complexity of today’s legal scholarship, sparking a continuing debate on the merits and drawbacks of new approaches that incorporate other academic fields into legal training.
In 1963, Charles Nesson had just graduated summa cum laude from Harvard Law School and was headed for a clerkship with Supreme Court Justice John Marshall Harlan.
“I received a call from the dean asking if I wanted to come teach,” Nesson said. “I didn’t apply. I said yes, and that was it.”
After clerking for Justice Harlan and working for the Department of Justice, Nesson joined the faculty in 1966 and has remained on Harvard Law School’s campus ever since.
But the days when of top students, such as Nesson, could expect job offers right after graduation seem to have passed. Today, the road to professorship has fractured into many, lesser-travelled pathways, most of which require significant scholarship beyond the attainment of a law degree.
If a student approached him about becoming a professor, Fallon said, “the thing that I would start to talk to the person about is how the person would get himself or herself into a position in which it was possible to produce significant legal scholarship before going on the job market.”
“I think what’s really changed is the demand for published writing,” he said.
As new scholars are added to the faculty today, they are expected to write prolifically, and many of them already have for their dissertations.
"I think what's really changed is the demand for published writing," Law School professor Richard H. Fallon said.
“You have to think about the fact that the main job for a law professor is to write,” said Law School professor William B. Rubenstein. “You have to enjoy the process and think of yourself as writing term papers for the rest of your life. They kind of see us in the classroom and are less familiar with the scholarship.”
Many prospective law professors earn their scholarly credentials in Ph.D. programs, Law School professor James Greiner said, noting that the three years of law school do not provide enough time to teach students how to complete serious research.
“If we're going to require that everyone have two or three published papers before they apply for an entry-level job at a national law school, we are essentially requiring them to do a Ph.D.,” Greiner said.
Those who earn Ph.D.s typically do so before completing their law degree or in a joint program, according to Greiner.
Greiner himself, however, followed a different approach, earning his law degree, practicing in the field for six years, and subsequently pursuing a Ph.D. in statistics, which he now incorporates into his classes.
As the Law School faculty expanded to include a wider variety of backgrounds, professors began to study the law in new ways, often using empirical evidence and other fields of study as a lens to examine the law.
“In the last 20 or so years, legal scholarship has increasingly turned to tools from other disciplines, including economics, history, literature, political science, psychology, and statistics,” Law School Dean Martha L. Minow wrote in an email. “This change has brought great range and depth to legal scholarship.”
As a result, the ways in which professors think about legal scholarship have also also changed, according to Greiner.
“What law school professors mostly did, what they thought of themselves as doing, was analyzing legal doctrine,” Greiner said. “Modern tenured and tenure track law professors...bring their methodology that they learned about in their Ph.D. and they analyze law with the Ph.D. principles,” Greiner said.
Yet this change comes with both benefits and drawbacks, he said.
“It leads to an extraordinarily diverse faculty that can deploy lots of different ideas when we come together, but we come together less frequently. It leads to less of an integrated experience for the students, but a broader experience for the students.” Greiner said. “It's harder for me to read my colleague's work now because they are deploying lessons in economics for instance and I've never taken an economics course in my life.”
Greiner said this trend is representative of a larger movement away from the “nuts and bolts of practice.”
“We focus less on stuffing our students heads completely full with what the doctrine in different areas of law looks like,” Greiner said, noting that the Law School teaches less legal writing than in the past.
When brought into the classroom, some professors find these new frameworks to be impractical and overly abstract. But others counter that interdisciplinary approaches enhance legal training by helping students view the law in a broader context.
For Nesson, some of the empirical approaches of today’s law professors are often “just boring” and “irrelevant.”
“Now they argue from data and think that this is going to be interesting,” said Nesson. “You go to a workshop where someone is delivering a paper, and you wonder, why would you spend your time working at this level of detail on this topic and who can you get to listen to it...It tends to lose me.”
"We can't turn law schools into graduate school for the study of law," Law School professor David B. Wilkins '77 said.
Others fear that the influence of Ph.Ds has made classes less practical, shifting the law school’s education away from its primary goal of professional training.
“We can’t turn law schools into graduate school for the study of law,” Law School professor David B. Wilkins ’77 said. “Most of the people who graduate from law school are going to be lawyers, or at least practice law for a period of time, and therefore we need professors who understand that dimension as well.”
Despite this fear, Wilkins credited the shift with bringing a more robust, interdisciplinary approach to legal problems.
“I think this has been a very important and very good trend in many ways if we think that legal problems aren’t just independently legal problems but are connected to economic efficiency or political institutions and how they operate our culture,” he said. “If that’s right, then we do need people who have the training to think critically about these issues.”
For Alan M. Dershowitz, who taught at the Law School for 50 years before retiring last December, both types of professors are necessary to give students the best possible experience.
“We have to have a balance of people who can teach future lawyers to do what they will be doing as well as philosophers and people with academic backgrounds,” he said. “I think the best teachers are those who have both practical experience and a good base in theory, but I think we need to strike a balance between the Ph.D.s and the practitioners.”
To focus on the practical aspects of law, Dershowitz himself refrained from using hypothetical examples in his own classrooms, instead electing to only use real cases.
“In my own life, I’ve tried to bring my theory into the courtroom and my practice into the classroom, and that’s a combination that’s necessary at the Law School,” said Dershowitz, who defended a number of high profile cases during his career, including the murder trial of football star O.J. Simpson.
As law schools continue to search for this balance, they must remain true to their mission of preparing students to practice law, Dershowitz said.
“We are after all a professional school, and we perform a service to the profession and to the country by turning out superb lawyers, and superb lawyers have to be able to integrate theory and practice,” he said.
—Staff writer Tyler S. Olkowski can be reached at firstname.lastname@example.org. Follow him on Twitter @OlkowskiTyler.
—Staff writer Dev A. Patel can be reached at email@example.com. Follow him on Twitter @dev_a_patel.