September 12, 2005
PhD vs. practice experience
Posted by Victor Fleischer

I'm late to the party, but the Prawfs debate on whether a PhD is necessary to do serious law-and-econ (and other law-and ) scholarship is really interesting.  See also Larry R.  Brett McDonnell pretty much nails it in his comment about halfway down the Prawfs thread.

More thoughts below the fold.

[*(By way of background:  I think of myself as a consumer, not a producer, of law and economics.  Economics informs my scholarship, as does philosophy, psychology and sociology.  If forced to choose a discipline or methodology, it would be intra-disciplinary (tax and business law), not inter-disciplinary.)]

I think it's worth adding one more element to the debate, at least as it pertains to business law: practice experience. This debate is not, or should not be, a debate about serious law-and-econ vs. armchair law-and-econ.  Most of us recognize that most schools still need more economists and fewer dabblers.  But at the same time, dabbling has its place.  Especially if the dabblers bring something else to the party.  What is that something?  Let's call it legal professionalism, both in the sense of practical experience and an understanding of the norms of how lawyers and clients make decisions.   

Litvak points out, quite accurately I think, that ALEA has become dominated by serious econ types.  The conference is no longer very hospitable to the likes of Conglomerate.  In part, the drive to muscle up corporate law is a needed correction.  I certainly think the empirical work is immensely valuable in testing an overtheorized field.  But I think the trend may have gone too far.  Shutting the lawyers out of ALEA will not ultimately advance our collective understanding of how things work on Wall Street or in Silicon Valley.

The Leiter/ALEA way-of-thinking suggests that it may be appropriate to require a PhD in economics (or similar skills) to get a law teaching job at a top school or to join in the debate.  I'm not so sure this is a good idea.  A PhD is often a substitute for practice experience.  And yet most economists recognize that institutions and norms affect the way things work in practice, and it can be helpful to have practiced yourself.   (N.B. This deficit can be overcome by interviewing lawyers, as we all have to do when our first-hand experience is inadequate.)

Moreover, doing "cutting-edge work" in economics is not the only game in town.  One important role for us non-PhDs is to translate the teachings of L&E into language that non-economists (esp. lawyers and policy-makers) can understand and appreciate.  Litvak herself provides a nice example in this piece.   

Lastly, many finance puzzles cannot be understood without a fairly sophisticated understanding of the regulatory backdrop.  I find many of the finance papers I read on SSRN lacking in this respect (although, increasingly, many are good).  I tend to focus on the interaction between tax and corporate governance, but of course other regulatory fields like securities, banking, and financial intermediation rules are important too.  (Litvak and I have had an exchange in print that illustrates my point.  Her piece is here; my short response is here.)

Now, having said all that, I don't want to lose sight of the original question on Leiter's blog, which was the value of a PhD.  It's my opinion that most schools need more PhDs, not fewer.  I just hope that hiring more PhDs adds richness to legal scholarship without dividing us into too many separate pods.

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Comments (4)

1. Posted by Gordon Smith on September 12, 2005 @ 20:02 | Permalink

Vic, I think I agree with everything you wrote here, but it is probably worth noting that Brian's original claim was about interdisciplinary work. I don't think he ever claimed that traditional legal scholarship was not worthwhile, only that strong interdisciplinary work required a PhD (or the skills one would acquire from a PhD). I am very sympathetic to that, but I also like Larry Ribstein's point that "law and _______" requires a deep knowledge of law. There are too many PhDs purporting to do work in "law and __________" who don't have that.

2. Posted by Vic Fleischer on September 12, 2005 @ 20:26 | Permalink

Good point, Gordon.

Brian's original post asked whether a PhD was necessary to do "competent, cutting edge work in interdisciplinary areas like law and economics ...".

I guess part of what I'm trying to do is defend doing "work in an area" that's informed by another discipline vs. actually trying to do economics. What does it mean, exactly, to do work in an interdisciplinary area? Is it defined by the audience (e.g. JLE or AER vs. general law review or tax law review)? Or something else?

I'm not sure what Brian or Kate think about the value of business law scholarship that incorporates some law and economics without claiming to be interdisciplinary.

Okay, maybe I have some idea what Kate thinks.

3. Posted by Scott Moss on September 12, 2005 @ 21:52 | Permalink

And Brian later clarified that he meant mainly (I'm paraphrasing) the narrow point that only PhDs reliably can do the sort of deeply theoretical (e.g., Philosophy PhDs) or sophisticated quantitative (e.g., Economics PhDs) work that draws wide respect in that non-law field.

That's a narrow claim: yes, the folks revolutionizing L&E methodology, or undertaking the most groundbreaking empirical studies, are going to be PhDs. He also concedes that some non-PhDs could do this too, but not many.

So after generating about 80 posts, it seems that Leiter's point is more narrow and unobjectionable, but less interesting, than it first seemed. It's kind of like the difference between Posner's bolder "economics explains all" early editions of his treatise, which, under fire, he toned down in later editions. The later editions are more sophisticated and accurate -- but less fun.

I self-servingly think the practice experience point is excellent too; I'm doing a piece right now (and presenting it at the Midwest Law & Econ Ass'n next month) on how behavioral econ shows that various nuts-and-bolts details of employment litigation are sub-optimal. I'm applying "real economists'" ec insights to practical matters that those same economists never would think to study. I'd like to think that's a contribution to the world of scholarship.

4. Posted by Brett McDonnell on September 13, 2005 @ 7:33 | Permalink

Right on, Vic.

Like everyone else above, I now think that Brian Leiter's original point was narrow and correct. I think I misinterpreted him initially in the prawfsblawg thread, or at least attributed to him a hidden agenda that wasn't there. Luckily Kate stepped in to take up the more extreme position that Brian was not taking, thereby generating a fun and perhaps occasionally enlightening, albeit a time-consuming, discussion.

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