In Europe, legal scholars have earned doctorates since medieval times. But in America, there has never been a Ph.D in law. Until now. This past December 15 was the deadline for applicants to the first Yale Law School class desiring this advanced degree. There are 82 applicants for only five openings.
It’s a small program, but strategically significant. From the time he arrived as the law school’s new dean in 2009, Robert C. Post has been keenly aware of the law school’s pre-eminence in the field of producing law professors. It’s that market the school’s new Ph.D program aims to serve, allowing top scholars an environment in which to fully burnish their academic credentials.
The three-year program will be shorter than a typical doctorate in other fields. Students will write a dissertation, sit for qualifying exams, take classes on teaching and teach two courses. Assistant Dean Gordon Silverstein heads up this new venture, along with two other post-graduate degree programs. He recently discussed Yale’s pioneering program with Senior Writer Thomas B. Scheffey.
LAW TRIBUNE How did this new Ph.D. program come to be?
GORDON SILVERSTEIN: It’s been something that’s been brewing for a number of years. People have always been curious why the field of law, which has been a deeply established and very academic enterprise for at least 100 years in the United States, doesn’t constitute itself in the way that other academic fields do. There are Ph.Ds in business administration, in nursing and in architecture. Yet there’s never been a Ph.D in law in the United States before.
LAW TRIBUNE: In Litchfield, the Tapping Reeve law school was one of the nation’s first. Connecticut is fertile ground for innovation in legal scholarship.
SILVERSTEIN: The first American law schools developed as proprietary schools — really trade schools. Because in the American tradition you could apprentice, and then prepare for the bar. It’s been a very slow evolution into this sense that there’s an academic training as well as a technical training.
LAW TRIBUNE: Tell me about your role in this.
SILVERSTEIN: Yale has always had a number of small graduate programs in the law school. They’ve had an LL.M. program, master’s of law, and a J.S.D program, which was a doctoral program. But it’s been overwhelmingly the people who earn their first degree overseas that come for the L.L.M., and then some of them will proceed on to a J.S.D. Last summer I was brought in — the triggering was the start of this Ph.D. program, and they brought together all the graduate programs. My role includes recruitment and admissions and in helping to support the development of the academic program [and] all facets of the Ph.D. program.
LAW TRIBUNE: What proportion of Yale graduates go on to become law professors?
SILVERSTEIN: It’s very high. There are more current law professors with a Yale J.D. than any other.
LAW TRIBUNE: Yale has long established itself as a kind of laboratory of the law.
SILVERSTEIN: It long has been, and if you put together Yale and Harvard professors, it’s an enormous percentage of the law professors. More at Yale, and certainly per capita, because Yale is a much smaller law school.
LAW TRIBUNE: Right now much of the talk about law schools is about how much they’re struggling. But you seem to be taking a longer view, that top scholarship has a permanent role.
SILVERSTEIN: And it’s more than that. One thing that has quietly changed in the last 20 years is the demands [placed on] starting law professors. If you go back 20, 30 years ago, the pattern was that someone would go to an elite law school, they would do very well, they would be on law review, they’d probably clerk, and they’d become a law professor. Typically they would have written a note in their law review, and that was the extent of their published work before they would start as a law professor. It’s really changed. Because there is growing interest in [becoming a professor], it’s become a buyer’s market, and law schools are demanding more and more of these applicants. The expectations for their academic accomplishments has been steadily going up.
One way a lot of law schools have dealt with this is to create post-graduate fellowship programs where students teach some legal writing, have some time to do some publishing. The argument here was that we really want to help to launch these students [toward their teaching goals]. They need much more in the way of intellectual support, time and training if they’re really going to be the best legal scholars that they can be.
LAW TRIBUNE: Aren’t law schools facing economic and technological challenges?
SILVERSTEIN: There’s obviously a big shake-up coming in legal education more broadly. If there are fewer schools, and fewer schools that are hiring, they can keep raising the demands that they put on people that they hire [as professors]. Having an opportunity to take additional courses, to develop a sophisticated dissertation or set of articles, to work with a faculty advisor and advisory committee — all the sorts of structural support we’re going to put in — is absolutely vital, and long overdue.
LAW TRIBUNE: Do you get a sense that appellate courts are looking to academic writings more?
SILVERSTEIN: [Chief Justice John G.] Roberts actually gave a speech lamenting that law review articles were actually less useful to his court. But I think there are a lot of ways to think about that.
At one level, every future judge and justice is going to go to law school, being exposed to the arguments, thoughts and rigor of this academic enterprise. And after all, the entire U.S. Supreme Court right now went to either Yale or Harvard law schools. These Ph.D. students are going to be training the future judges, as well as trying to influence the way they think about problems.
LAW TRIBUNE: Scholars don’t have to wait for the right case or client to come along to delve into an issue
SILVERSTEIN: That’s right, and they have the ability to formulate a question, to challenge conventional wisdom, to think through in original and stimulating ways — I think that these are all elements of what the academic side of law school can contribute. •