American law schools are hiring large proportions of JD-PhDs in tenure-track faculty positions in an effort to increase the quantity and quality of empirical legal scholarship. That effort is failing. The new recruits bring methods and objectives unsuited to law. They produce lower-than-predicted levels of empiricism because they compete on the basis of methodological sophistication, devote time and resources to disputes over arcane issues in statistics and methodology, prefer to collaborate with other PhDs, and intimidate empiricists whose work does not require high levels of methodological sophistication. In short, PhDs impose the cultures of their disciplines on legal scholarship.
Importing people rather than ideas from other disciplines threatens the role of legal scholarship as a disciplinary meeting ground. The risk is that substituting disciplinary scholars for legal scholars will substitute disciplinary scholarship for the interdisciplinary scholarship currently prevalent in law. One scenario by which that might occur is for PhD-hiring to become ubiquitous, for the disciplines to divide the fields of law among them, and for peer review to eliminate legal scholarship that fails to meet disciplinary requirements.
My vision is one in which empiricism is distinguished from statistics, methodological sophistication is valued only as a means of discovery, and all legal scholars feel free to report empirical findings. Two changes are central to achieving that vision. The first – already implemented in some schools – is to provide empirical legal scholars with assistance from non-tenure-track faculty statisticians. Doing so will relieve the pressure on law faculties to acquire statistical expertise by hiring PhDs in tenure-track positions. The second is to build a culture in the law schools that values empirical discovery and the advancement of knowledge over methodological sophistication.
LoPucki, Lynn M, Disciplining Legal Scholarship (April 29, 2015). 90 Tulane Law Review 1, 2015, forthcoming; UCLA School of Law, Law-Econ Research Paper No 15-08.