Two years ago, I had a post at Volokh on the scholarly trajectories of PhD vs. non-PhD hiring of law profs: I asked, will the entry-level market's valuation of PhDs prove justified? It occurs to me we now have data slightly relevant to that. (Thread.) reason.com/volokh/2019/06…
It would take a lot of study of a lot of people to get a good sense of the answer. And of course there are lots of ways to try to measure that, all of which have their flaws. But there's one chart that is of possible interest: Fred Shapiro's list of most cited younger scholars.
The younger scholars were ones hired at the entry-level in an age of both PhD and non-PhD hiring. So one small way to get a small insight into the trajectory question is to ask, how many on the list have PhDs and how many don't? lawreview.uchicago.edu/sites/lawrevie…
Lots of caveats to the data, of course, but here's the potentially interesting result: As far as I can tell, very few profs on the list have PhDs. Only 2 have doctorates of any kind: 1 has an SJD, 1 has an econ PhD and an SJD. 18 of 20 don't have a doctorate.
(And obviously a J.D. isn't a doctorate; it's just a renamed LL.B.) I was surprised about that, given how common Ph.D. hiring has become, as Lynn LoPucki has emphasized. jle.aals.org/cgi/viewconten…
Instead, those on the list were much more likely to have what you might call "traditional" resumes, what we think of as credentials from the pre-PhD era. Lots of Yale JDs, 10 of 20 are former SCOTUS clerks, yada yada yada, etc.
Does this mean anything? Maybe it's just noise, and citation studies are so partial, and so biased, that maybe we should just ignore it completely. So it could be meaningless.
There are lots of other explanations, too.
First, those on the list tend to be people hired in the early 2000s, before the PhD trend really took off. So maybe this is still effectively a pre-PhD list.
Second, maybe the PhD trend tends to be focused in subject areas with relatively low citation numbers. If non-PhDs end up disproportionately in highly-cited fields, like con law or crim pro or tech, the results may just reflect field, not trajectory.
Third, and relatedly, maybe non-PhDs are more likely to be generalists who will tend to write for a larger audience of fellow generalists, and who will therefore end up being read and cited more by virtue of being less specialized.
Fourth, maybe PhDs are more likely to be writing for discipline-specific journals that are not as likely to be seen within law or cited within law journals? Maybe Shapiro's study is only looking at some kinds of law-focused influence, not the whole picture.
Anyway, this is such a small piece of the overall trajectory puzzle that I don't think we can read too much into it. But it struck me as mildly interesting for those of us who follow lawprof hiring closely. /end
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Interesting moment in this Linda Greenhouse interview, after she criticizes SCOTUS for being political and making up the law, when @samuelmoyn asks her, isn't that true of the left's views, too? Is it all just politics? And she agrees. (Q @ 41:45 mark) podcasts.apple.com/us/podcast/dig…
Here's the exchange:
Moyn: Earlier in the convo with David, you said that the problem with the 'major questions' doctrine is that it's made up. I just want to ask, isn't that true of constitutional law in general? And it gets to a deep issue.... /1
Moyn: ... Because many of us sort of say, when the Court does what I like politically, it's doing Law. And when conservatives win, they're doing Politics. That's one way of interpreting case after case. Maybe you put in a little balance by saying, for many years..... /2
Interesting opinion by MJ Faruqui on why he found probable cause in a case involving bitcoin transactions, although at times it seems to presuppose a power I don't think judges have: To do a 4A analysis to the investigation and ignore fruits. (Thread.) dcd.uscourts.gov/sites/dcd/file…
If I'm reading that part of the discussion correctly, it seems to me that MJ Faruqui is reading the facts that form the basis for probable cause as if there were an implicit motion to suppress as to those facts and the fruits they yielded.
I don't think judges have that power when they review warrant applications. As I see it, the task at that stage is just to see if the facts as alleged amount to probable cause, the warrant is particular, there is venue, etc.
Not sure how I missed the CA9 oral argument in hiQ Labs on the CFAA back in October, but interesting, for those following the case, that LinkedIn focused at oral arg on the IP address block question, arguing it is a code-based technological barrier. /1
I can understand why they focused on that, given the narrow ruling in Van Buren. But FWIW I don't see how blocking an IP address can count as a closed gate, for reasons below. /2 columbialawreview.org/wp-content/upl…
Either way, interesting to hear how Van Buren has focused the terms of the debate, at least based on the oral argument. And glad to hear the judges engaged so much with the case. (The opinion in hiQ isn't out yet.) /3
One of those doctrinal distinctions that 1L Criminal Law courses often overlook: What exactly is the difference between Witchcraft in the First Degree and Witchcraft in the Second Degree? (From Hale's Pleas of the Crown, 1682). play.google.com/books/reader?i…
In my view, the history here is a mess but a stable mess; on stare decisis grounds, the Court would be smart to just leave this body of law alone. But I don’t know how many Justices are so inclined.
This may end up being a pretty big criminal procedure case; the first big Miranda decision in a few years. Worth watching.