Gradual evolution in legal education?

We've had many (too many?) discussions here about the J.D. vs. Ph.D. I have maintained, and continue to maintain, that though the degrees are NOT equivalent, the J.D. is treated as the functional equivalent of the Ph.D. This is still true, AFAIK.

However, I've begun to notice something interesting. The University of Arizona has just established a new J.S.D program that, unlike most existing programs, is NOT limited to foreign attorneys, their own LL.M. grads, or "at most one or two per year". It looks a lot more like most Ph.D. programs in that it appears to be designed for budding American legal scholars and law teachers.

This is the third such program I've seen but, significanlty, the FIRST at a state school. (The others are Golden Gate and Pace. Tulane's refurbished Ph.D. in Law might also fit the pattern.)

So MAYBE, given the competition for law faculty jobs, the J.S.D. will gradually become the required degree? This would be a good thing for several reasons: 1) It would require decent scholarship training; 2) it might help break the stranglehold of a few Ivy League law schools over law faculty appointments?

 

This is what it seems like. The Indiana University School of Law at Indianapolis started their SJD program last year, and they are pushing it as a scholarly research degree requiring a dissertation. They don't limit admission to their own LLM grads; however one must hold an LLM from an ABA accredited school.

http://indylaw.indiana.edu/sjd/
http://indylaw.indiana.edu/sjd/admission.htm

 

This never-ending (and rather inane) J.D. vs. Ph.D. struggle is why I posted about the origins of doctorates yesterday.

I think that J.D.s are eminently doctorates because they are the standard teaching degree in law. That doesn't make them the same thing as a Ph.D., but it doesn't have to. The Ph.D. emphazizes research while the J.D. is far more oriented towards practice.

I think that I disagree on both counts.

1) Are ivory-tower researchers necessarily the most appropriate teachers of applied subjects? I see a danger in separating teaching and practice too radically. (And demanding different degrees would probably constitute that.)

2) It seems to me that limiting the ranks of law teachers to scholarly types who graduated from research intensive programs will only exacerbate the problem of law education being dominated by graduates of a handful of institutions. The reason why so many law schools hire the graduates of the prestige schools today is probably because those graduates are perceived as being more scholarly. So emphasizing that trend will only emphasize that trend.

 

Here is a different take on the J.D. verses Ph.D. debate. The following quotes are from current job announcements for civilian employment with the Air Force as an intel analyst. From reading this, it appears that the J.D. is considered the equivalent of a master's degree for pay puposes in regards to government employment.

"EDUCATION: A master's or equivalent graduate degree OR 2 full years of progressively higher level graduate education leading to such a degree or LL.B. or J.D., if related, is also qualifying for the GS-9."

"EDUCATION: A Ph.D. or equivalent doctoral degree OR 3 full years of progressively higher level graduate education leading to such a degree or LL.M., if related is also qualifying for the GS-11."

 

Well, I started this thread hoping that it would not rekindle, or at least fan, the J.D. vs. Ph.D. debate. That's not what I was getting at.

I have a J.D. because if you want to obtain a law license, the J.D. is pretty much your only realistic option. It they stuck with the LL.B. (which they SHOULD have, IMHO), I'd have gotten one of those. Ditto for a Master's. Ditto for a "Legal Practice Certificate" like they use in the Carribbean. You get the idea.

But the thing that crossed my mind about this J.S.D. business is that, for private and top ranked public schools, the degree seems to have been a revenue source targeted mostly at foreign law professors. Look, for example, at Stanford and Chicago and you will see what I mean. U.S. lawyers need not apply. J.S.D. programs usually seem to be considered like the "crazy aunt in the attic", if you ask, we'll admit to you that she's there but we don't really like to talk about her.

But here's this state school taking a much more "Ph.D.-ish" approach, recruiting both foreigners and Americans and it looks like they mean to turn it into a going concern. That's what got me to thinking.

I suppose you could add McGeorge to my list of "new age" J.S.D. programs.

 

We kept our crazy aunt in the basement... it was cooler in the summer, what with the humidifier running and all that sort of thing. That was still okay, right?



But, seriously...

First, a question: JSD or SJD... same thing, right?

This, I think, is its greatest benefit.

And, so, then... when will you be applying to a JSD (or SJD, if they're the same) program?

 

I just don't get it. Why would American JSD programs discriminate against American lawyers? Sounds like a good class action lawsuit to me.

 

TH:

Well, discrimination, contrary to popular belief, is usually LEGAL.

Chicago says in their web site that they don't feel that they can offer a sufficiently specialized graduate training experience to be of use to an American J.D. holder. In other words, the Chicago J.D. is all the legal education an American could ever need!

J.S.D. and S.J.D. are the same thing. J.S.D. and Ph.D. are actually NOT the same thing, though both are doctorates and require a dissertation. J.S.D. and foreign LL.D. are often not at all the same thing. American LL.D. used to be given as an honorary degree only.

I need to decide what to do about the London LL.M. I'm (in theory) pursuing before I even think about any other program.

I admit I was very attracted to the Arizona J.S.D. in International Trade (or whatever they call it) but the program isn't D/L and they want fluency in Spanish.

My Spanish isn't bad; it's actually pretty good in formal terms, but I am a LONG way from fluent.

Still, U. Arizona is only four hours from my house and the subject matter has formed an interesting part of my practice in the past...

Then there's the question of what I'd DO with it. I am too old to embark on an academic career but there's policy stuff going on all over down here...

I don't know. We'll see.

 

But on a more serious note, why would American JSD/SJD programs not allow Americans into the program? I would think that if I were interested in starting up my own university (assuming that I could figure out how to raise the money to do so), the only relevant questions should be: Do they have the grades? and Do they have/can they round up the money? Even if the law schools think that there is little demand for the JSD/SJD on the part of American lawyers, allow them to be admitted anyway, find out if you're right, and, even if only a few are interested, let those who are interested (and qualified) have the benefit of a JSD/SJD education. This ain't rocket science.

 

Of course, many forms of discrimination are legal. Let's see here. "X" needs to hire a lawyer.
"X" notices that "A" has won by far the majority of his cases over the years and "B" seems to be on a pretty bad losing streak here. Who does he hire?
"X" checks out both their law school transcripts and notices that "A" was first in his class and made the law review while "B" was lucky to just graduate. Who does he hire?
"X" notices that "A" holds a JD, LLM, and JSD while "B" holds a JD only. Who does he hire?
"X" notices that "A" has 40 years of legal experience and "B" has only recently passed the bar. Who does he hire?

In short, there must be a legitimate reason for the discrimination. What good reason is there for disallowing perfectly qualified Americans from pursuing a JSD/SJD degree? None! And the law schools that pursue such a practice should be held accountable! And the individuals responsible ought to be impaled and hung on lamp-posts for all to see!

 

TH;

Well, the equal protection analysis for discrimination by government agencies or persons working under government funding or direction contemplates three "levels of scrutiny":

-strict scrutiny which is applied to discrimination based on race and some other so-called "suspect" classifications;

-intermediate scrutiny which is applied to discrimination based on sex (and, increasingly, sexual orientation); and

-rational basis which is applied to all other forms of discrimination.

Since American lawyers do not form a recocnized category triggering strict or intermediate scrutiny, the law is very deferential to any decision the Executive may make in discrimination against them. "Rational basis" means, essentially, that the folks in charge need only be able to make a plausible argument to be upheld. Saying that the school doesn't have suffient resources to support meaningful gradute education for American lawyers as opposed to foreign lawyers with no training in American law is undoubtedly sufficient.

Of course, this is a constitutional analysis. Congress could certainly pass a law forbidding this discrimination but to the best of my (limited) knowledge, there is no such law.

 

Of course, since laws are written by politicians who are mostly lawyers anyway, I doubt that there would be any laws passed about impaling law school deans anyway. But still, if the programs are there, I don't buy any cock and bull story about why Americans shouldn't be admitted. Thing is, there are two standards by which to judge things. If you want to go through life finding out what you can get away with, consult the minimum technically correct requirements of the law. But if you care to live life by a higher standard, all of us have an internal compass. It's called a conscience and that far more than mere man's law is what tells us the difference between right and wrong.

 

TH:

Well, the truth probably is that if you were an American lawyer with a good degree, a publication or two, and something you REALLY wanted to research and write a dissertation on, (and especially if you weren't looking for financial assistance ) and Chicago or Stanford had a professor interested in working with you, I bet they'd accomodate you, whatever their rules say. So it may not be as bad as we think.