The academic doctorate in law: A vehicle for legal transplants?

Journal of Legal Education

Volumn 58, Issue 3, 2008, Pages 413-454

  Hupper, Gail J ^a  

^a BOSTON COLLEGE   (United States)

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[No Author keywords available]

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EID: 63149134895     PISSN: 00222208     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (172)

1. Wolfgang Wiegand, The Reception of American Law in Europe, 39 Am. J. Comp. L. 229 (1991).
2. Jonathan M. Miller, A Typology of Legal Transplants: Using Sociology, Legal History and Argentine Examples to Explain the Transplant Process, 51 Am. J. Comp. L. 839 (2003). The other types to which Miller refers are "cost-saving," "externally-dictated," and "legitimacy-generating" transplants. For a broader discussion of legal transplants, see infra notes 132-36 and accompanying text.
3. See, e.g., Jacques deLisle, Lex Americana?: United States Legal Assistance, American Legal Models, and Legal Change in the Post-Communist World and Beyond, 20 U. Pa. J. Int'l Econ. L. 179 (1999); Maximo Langer, From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure, 45 Harv. Int'l L. J. 1 (2004); Ugo Mattei, Why the Wind Changed: Intellectual Leadership in Western Law, 42 Am. J. Comp. L. 195 (1994); Ugo Mattei, Symposium-Calabresi's The Costs of Accidents: A Generation of Impact on Law and Scholarship, The Rise and Fall of Law and Economics: An Essay for Judge Guido Calabresi, 64 Md. L. Rev. 220 (2005).
4. Miller addresses both motivation and effect. He argues that a graduate degree enables the degree recipient to obtain significant benefits through the transplantation of learned norms. In this context he is speaking primarily of directly transplanted norms-as in legislation that the degree holder has managed to get adopted. Miller, A Typology of Legal Transplants, supra note 2. Wiegand's understanding of both motivation and effect is more diffuse. His account of motivation is the ability to obtain a high-status job whose availability is conditioned on the applicant's having a U.S. law degree. He uses the Weberian "leading lawyers" formulation to explain how graduate degree holders who return to these high-status positions in Switzerland (in both teaching and practice) have contributed to the importation of particular legal devices. Wiegand, The Reception of American Law in Europe, supra note 1. DeLisle does not address motivation, but agrees with the idea of a diffuse effect. DeLisle, Lex Americana, supra note 3.
5. DeLisle, however, does touch on typical LL.M. degree requirements, and he does refer to the doctorate in passing. See deLisle, Lex Americana, supra note 3.
6. See Harvard University, The Law School Including Courses of Instruction for the Academic Year 1950-51, Official Reg. Harv. Univ., Apr. 1950, at 3-4; Yale University, Law School For the Academic Year 1956-57, Bull. Yale U. 1956, at 6-7.
7. See Gail J. Hupper, Database of S.J.D. Graduates (Apr. 21, 2008) (unpublished listing of graduates derived from archival and other materials, on file with the author) (hereinafter Database); Gail J. Hupper, Research on S.J.D./J.S.D. Programs-Progress Report (Dec. 13, 2003) (unpublished manuscript, on file with the author) (hereinafter Progress Report) (surveying programs at twenty-five of the twenty-eight schools offering the degree as of 2003). Of the two schools that reported substantial enrollment by U.S. students, one reported a mix of U.S. and international students, and the other reported that all of its students were from the United States. This latter program is a specialized one in a highly regulated industry. See id.
8. Tel Aviv University, Buchmann Faculty of Law, Members, available at 〈http://www.tau.ac.il/law/member.htm〉 (lastvisited Mar. 7,2007); National Taiwan University, Faculty of Law, Faculty, available at 〈http://www.law.ntu.edu.tw/english/faculty/yh-03full-time-professors. htm〉, 〈http://www.law.ntu.edu.tw/english/faculty/yh-03full-time- associate-professors. htm〉, 〈http://www.law.ntu.edu.tw/english/ faculty/yh-03full-time-assistant-professors. htm〉 (all last visited Feb. 14, 2008); Seoul National University, College of Law, Faculty, available at 〈http://law.snu.ac.kr/english/news/faculty-Members.asp〉 (last visited Dec. 9, 2007) (hereinafter SNU Faculty Web Site).
9. See Law School Admission Council & American Bar Association, Official Guide To ABA-Approved Law Schools 852 (Newtown, Pa., 2008 ed.) (hereinafter 2008 Official Guide). The following historical data on number of degrees conferred serves as a comparison: 1980: 19; 1985: 29; 1990: 34; 1995: 39; 2001: 59. See Carl A. Auerbach, Historical Statistics of Legal Education 44 (Chicago, 1997) (as to numbers prior to 2001); Law School Admission Council & American Bar Association, Official Guide To ABA-Approved Law Schools 816 (Newtown, Pa., 2003 ed.) (as to 2001).
10. The following schools had programs before 1990: University of California/Berkeley, University of Chicago, Columbia University, Cornell University, Duke University, George Washington University, Georgetown University, Harvard University, University of Illinois at Champaign/ Urbana, University of Michigan, New York University, Northwestern University, University of Pennsylvania, Southern Methodist University, Stanford University, Tulane University, University of Virginia, Washington University in St. Louis, University of Wisconsin/Madison, and Yale University. See Earl C. Arnold et al., Committee on Advanced Academic and Professional Degrees, Hand Book Association of American Law School & Procedures 34th Ann. Meeting 302, 307-08 n. 39, 41 (1936); Henry D. Gabriel, Graduate Legal Education: An Appraisal, 30 S. Tex. L. Rev. 129, 159-62 (1990); Gary A. Munneke, Barron's Guide to Law Schools (Woodbury, N.Y., 9th ed. 1990). In addition, by 1990 the University of Washington Law School was offering a Ph.D. in Asian and Comparative Law. See id.
11. The following schools established programs after 1990: American University/Washington College of Law, University of Arizona, University of California at Los Angeles, University of Florida, Golden Gate University, Indiana University at Bloomington, Indiana University at Indianapolis, University of Kansas, McGeorge/University of the Pacific, Loyola University of Chicago, Notre Dame University, Pace University, University of Pittsburgh, St. Thomas University, Samford University, Temple University, and Widener University. Compare Munneke, Barron's Guide, supra note 10, with 2008 Official Guide, supra note 9, at 96, 857-58. Information about all of the programs appears on the respective schools' web sites.
12. See generally Progress Report, supra note 7.
13. Interview #9; Interview #15. This is the first of numerous references to interviews I conducted with faculty, students, and administrators involved with the programs at Columbia, George Washington, Harvard, Michigan, NYU, Wisconsin, and Yale. Each interview is referred to herein by a randomly assigned number. For a discussion of how these interviews were conducted, see infra notes 20-21.
14. Information about these activities generally is available on the respective schools' web sites. See also sources cited infra note 58.
15. See infra notes 72-74 and accompanying text.
16. The list excludes Stanford, which by now has conferred slightly more doctorates than has George Washington. Stanford did not confer its first J.S.D. until the late 1950s. See Database, supra note 7.
17. See id. The Database indicates that the seven schools accounted for 55 percent of the degrees conferred between 1990 and 2006, but the number of degrees conferred by other schools -data that was collected from non-archival sources - is probably underrepresented.
18. See Interview #9; Interview #49.
19. Miller, A Typology of Legal Transplants, supra note 2.
20. Between November 2003 and December 2007, I interviewed fifty faculty members and administrators at the seven schools in person or by telephone, some of them more than once. In most cases, I transcribed notes I had taken during the interview into a longer summary shortly thereafter. These longer summaries generally have not been reviewed by the interviewees.
21. Between May and October 2005, I interviewed twelve students and graduates, most of them from Harvard's S.J.D. program. The interview technique was the same as for faculty and administrators. In addition, three faculty interviewees were themselves post-1990 graduates of the programs.
22. See Gail J. Hupper, The Rise of an Academic Doctorate in Law: Origins Through World War II, 49 Am. J. Legal Hist, 1 (2007).
23. Gail J. Hupper, The Rise, Fall and Rise of an Academic Doctorate in Law: A Case Study of a Legal Transplant Part I (Draft of Aug. 21, 2006) (unpublished manuscript on file with the author).
24. Gail J. Hupper, The Rise, Fall and Rise of an Academic Doctorate in Law: A Case Study of a Legal Transplant Part II (Draft of Dec. 3, 2006) (unpublished manuscript on file with the author) (hereinafter Hupper Part II).
25. Id at 31.
26. See, e.g., John Henry Merryman, Legal Education There and Here: A Comparison, 27 Stan. L. Rev. 859, 868-69 (1975); Minutes of the Meeting of the Graduate and Research Committee of the University of Michigan Law School, Sept. 24, 1964, in Law School (University of Michigan) collection, subseries Dean's Files, 1852-1975, box 54 (available in the University of Michigan Archives, Bentley Historical Library) ("[E]very good student [from England] is advised against coming to [the United States] if he is interested in a teaching position in England. At the crucial time in his life the young man cannot afford to be absent from the proper sherry parties if he wishes an appointment.").
27. See Hupper Part II, supra note 24, at 24-26.
28. During the 1970s and 1980s developing-country students accounted for some 65 percent of the seven schools' foreign-trained doctoral graduates. By the 1980s they accounted for nearly half of the programs' total graduates. See Database, supra note 7.
29. See Hupper Part II, supra note 24, at 26-28, 59; Interview #31; Interview #48; Interview #53.
30. See Roger J. Goebel, Professional Qualification and Educational Requirements for Law Practice in a Foreign Country: Bridging the Cultural Gap, 63 Tul. L. Rev. 443 (1989); Workshop, Reexamination of the Teaching of International Law, 78 Am. Soc'y Int'l L. Proc. 198, 208-213 (remarks of Gidon A.G. Gottlieb) (hereinafter Gottlieb, Workshop); David Kennedy, International Legal Education, 26 Harv. Int'l L.J. 361 (1985). The irony, of course, was that the international would be more a part of graduates' professional life than ever before.
31. See Gottlieb, Workshop, supra note 30, at 213.
32. This was Thomas Mallison, a former student of Myres McDougal. See Jerome A. Barron et al., A Tribute to Professors W. Thomas Mallison and Leroy S. Middlefield, 55 Geo. Wash. L. Rev. 179, 186-93 (1987); Database, supra note 7.
33. See Interview #9; Interview #17; Interview #30; Interview #33; Interview #45.
34. There was only slight growth in the total number of foreign-trained graduates in the 1990s as compared to the 1980s. In the seven years between 2000 and 2006 (inclusive), the seven schools conferred over 220 doctoral degrees on foreign-trained students, as contrasted with 170 during the 1990s. See Database, supra note 7.
35. See Norman Dorsen, Achieving International Cooperation: NYU's Global Law School Program, 51 J. Legal Ed. 332 (2001); Hauser Global Law School Program, available at 〈http://www.law.nyu.edu/global/index.htm〉 (last visited Jan. 2, 2009). The Hauser name was added after the Dorsen article was published.
36. See Interview #4; Interview #14; Interview #21; Interview #37; Interview #59; Interview #61.
37. See, e.g., Harry W. Arthurs, Poor Canadian Legal Education: So Near to Wall Street, So Far from God, 38 Osgoode Hall L.J. 381, 389-91 (2000); Yoseph M. Edrey, A Global Legal Odyssey: A Brief Introduction to the Legal System and Legal Education in Israel and the Curriculum at Haifa Faculty of Law, 43 S. Tex. L. Rev. 343, 345 (2002); infra notes 137-47 and accompanying text.
38. See Chang-fa Lo, Driving an Ox Cart to Catch Up with the Space Shuttle: The Need for and Prospects of Legal Education Reform in Taiwan, 24 Wis. Int'l L.J. 41, 50-51 (2006) (as to Taiwan); sources cited infra note 157 (as to Korea); infra notes 148-62 and accompanying text.
39. See Universidad de Los Andes, Facultad de Derecho, Equipo Humano, available at 〈http://derecho.uniandes.edu.co/derecho-uniandes/export/ derecho-uniandes/recurso/profesores/〉 (last visited Jan. 2, 2009). A few others hold U.S. LL.M. degrees but not the doctorate. Id.
40. These include the University of Palermo, the University of San Andrés, and Torcuata di Tella University. Two NYU J.S.D.s (one a graduate, one a current student) also teach at Palermo. See New York University Law School, J.S.D. Students and Candidates, available at 〈http://www.law. nyu.edu/llmjsd/jsdprogram/jsdcommunity/jsdstudentsandcandidates/index.htm〉 (last visited Jan. 1, 2009) (hereinafter NYU J.S.D. Web Page); Universidad de San Andrés, Listado de Profesores de la Universidad, available at 〈http://www.udesa.edu. ar/Propuesta-San-Andres/Profesores〉 (last visited Dec. 24, 2008); Yale Law School, SELA Members, available at 〈http://www.law.yale.edu/intellectuallife/SELA%20Members.htm〉 (last visited Dec. 24, 2008).
41. Of the twenty Western European graduates between 2000 and 2006, four are teaching in U.S. law schools, and at least two who hoped to graduate after 2006 are teaching. See Database, supra note 7. See also Interview #27 (a U.S. doctorate may lead to a back door into teaching in continental Europe, through initial teaching positions in either the United States or the United Kingdom); Interview #39 (same).
42. See Database, supra note 7.
43. In English, Latin American Seminar on Constitutional and Political Theory.
44. Andrés Jana, Santiago, Chile and Roberto Saba, Buenos Aires, Argentina, Excerpts, Yale Law Report, Winter 2000, available at 〈http://www.law.yale.edu/intellectuallife/selahistory. htm〉 (last visited Dec. 24, 2008).
45. See Interview #11 (citing non-traditional ways of thinking about law, particularly law and economics, as a reason for increased demand among western Europeans); Interview #19 (noting a continental European advisee, working in the law and economics area, who did a second doctorate in his home country so that he could find a teaching position there); Interview #22 (citing the U.S.'s policy-oriented approach to legal thought); Interview #44 (noting the interdisciplinary nature of Harvard's program).
46. See Interview #1; Interview #4; Interview #6; Interview #10; Interview #15; Interview #19; Interview #21; Interview #26; Interview #27; Interview #29; Interview #45; Interview #51; Interview #60.
47. See N.Y. Univ. Sch. of Law, Report on the SJD Program by the Committee on the Global Law School Program and Related Graduate Program, Feb. 10, 1998 (copy on file with the author); Interview #14; Interview #20; Interview #21; Interview #51.
48. See Interview #13 (Yale's graduate program has traditionally been identified with an effort to spread Yale's educational philosophy through teacher training); Interview #14 (citing Wisconsin's focus on the importance of law in action); Interview #33 (Columbia does think of itself as close to the social sciences, so many doctoral projects involve learning about social science tools).
49. See Letter from Harold Koh to Yale Law School Alumni, June 6, 2007, available at 〈http://www.law.yale.edu/documents/pdf/News-&-Events/ HaroldAlumniLetterSpring07.pdf〉 (hereinafter Koh to Alumni). Yale's LL.M. program, unlike those of the other schools covered by this article, is designed primarily for prospective academics.
50. See Interview #1; Interview #4; Interview #6; Interview #17; Interview #18; Interview #19; Interview #21; Interview #29; Interview #32; Interview #38.
51. See Interview #36 (George Washington hired Thomas Buergenthal in 1990 to run the school's international program, with a particular emphasis on human rights. This resonates with the idea that the United States has something to offer the third world.); Interview #51.
52. See Carl N. Edwards, In Search of Legal Scholarship: Strategies for the Integration of Science into the Practice of Law, 8 S. Cal. Interdise. L.J. 1, 13 (1998) (noting an increase in "activist law" S.J.D. dissertations at Harvard beginning in the early 1990s). In addition, feminist scholar Martha Fineman was by far Columbia's most active J.S.D. supervisor from 1994-99. See Columbia Law School, Internal Report on the J.S.D. Program of Columbia Law School (undated, probably written around 2000) (unpublished report available in Special Collections, Columbia Law School, file box entitled "Law School Archives/Graduate Legal Studies"); Emory Law School, Feminism and Legal Theory Project, available at 〈http://www.law.emory.edu/index.php?id= 1125〉 (last visited Dec. 24, 2008).
53. See Interview #29; but see Interview #54.
54. See Interview #33 (noting that he taught a seminar in legal education in part to spread ideas about ways of teaching that students might not find elsewhere).
55. See Interview #10; Interview #32; Interview #45. The motivations of individual faculty members matter because often the interests of a small group of faculty members drive the program as a whole. See Interview #17.
56. See Interview #24; Interview #45; Interview #60. While some of these faculty hold Ph.D.s, the phenomenon is not limited to those who do. The most obvious examples are faculty members who serve on dissertation committees in other departments, even if they do not themselves hold Ph.D.s. Examples include Interviewee #28, Interviewee #32, and Interviewee #51. A different kind of example is a frequent supervisor who serves as an advisor to various academic publishers. She notes that her supervisory tasks include helping students (a) frame a dissertation topic that shows both mastery and originality, and (b) conceptualize how it might appear as a book. See Interview #30. But see Interview #6 (disenchantment with foreign J.S.D. students' preparation in companion arts and sciences disciplines may lead faculty with Ph.D.s in these disciplines to prefer to supervise only Ph.D. students in their fields).
57. At Columbia, for example, faculty responsible for the J.S.D. program have compared its standards to that of a Ph.D. program, in part because some of those faculty hold Ph.D. degrees. This comparison has led to a series of reviews since 2003. See Interview #1; Interview #37.
58. See Interview #18 (referring to a program in law, science and technology); Harvard Law School, Research Programs and Centers, available at 〈http://www.law.harvard.edu/programs/〉 (last visited Dec. 24, 2008); Yale Center for Law & Philosophy, available at 〈http://www.law.yale. edu/yclp/courses.html〉 (last visited Dec. 24, 2008) ("[m]embers of the center may be available to supervise Ph.D.'s or J.S.D.s in the philosophy of law").
59. See Interview #24 (describing his own work with students at another school); Welcome to ATLAS, available at 〈http://centers.law.nyu.edu/ atlasdoctorate/index.html〉 (last visited Dec. 24, 2008).
60. See Interview #10; Interview #17; Interview #18; Interview #21; Interview #33; Interview #51; Interview #54.
61. See Database, supra note 7 (Columbia theses typically take the form of three published articles); Interview #19 (referring to publication of his supervisees' work in finance and economics journals) ; Interview #30 (she advises students on how to turn a book into a series of smaller publishable pieces). Information about admission and degree requirements is generally available on the respective schools' web sites.
62. See, e.g., Michelle Foster, Causation in Context: Interpreting the Nexus Clause in the Refugee Convention, 23 Mich. J. Int'l L. 265 (2002); Alvaro Santos, The World Bank's Uses of the "Rule of Law" Promise in Economic Development, in The New Law and Economic Development: A Critical Appraisal 253 (David M. Trubek and Alvaro Santos eds., New York, 2006); Anne-Marie Slaughter, Andrew S. Tulumello, and Stepan Wood, International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship, 92 Am. J. Int'l L. 367 (1998).
63. See Interview #1; Interview #10; Interview #17; Interview #26; Interview #34; Interview #48; but see infra note 82 and accompanying text (as to quality concerns).
64. See Interview #13; Interview #14; Interview #21; Interview #26; Interview #37; Interview #43; Interview #54; Interview #60; but see Interview #20 (producing research is not a primary purpose of his school's S.J.D.); Interview #43 (expressing more interest in training teachers than producing research).
65. Among all graduates (U.S. and foreign-trained), the comparable percentages are just over 70 percent for 2000-06 and just over 60 percent for the 1970s and 1980s. Database, supra note 7. All career statistics exclude graduates for whom I was unable to find career information.
66. This represents around 71 percent of all Israeli graduates for whom profession is known. Id.
67. This represents around 90 percent of all East Asia graduates for whom profession is known. Id.
68. This represents around 78 percent of all Canadian graduates for whom profession is known. Id.
69. See id.
70. See Interview #1; Interview #37; Interview #60; Database, supra note 7.
71. The previous high for a decade was 43 percent in the 1960s. Database, supra note 7.
72. Id.
73. These are Oren Bar-Gill (Harvard S.J.D. 2005), Michal Barzuza (Harvard S.J.D. 2004), Omri Ben-Shahar (Harvard S.J.D. 2000), Gabriela Blum (Harvard S.J.D. 2003), Jody Freeman (Harvard S.J.D. 1995), Zohar Goshen (Yale J.S.D. 1991), James Hathaway (Columbia J.S.D. 1990), Vikram Khanna (Harvard S.J.D. 1997), Mattias Kumm (Harvard S.J.D. 2003), Dotan Oliar (Harvard S.J.D. 2007), Gideon Parchomovsky (Yale J.S.D. 1998), and Alvaro Santos (Harvard S.J.D. candidate). Balakrishnan Rajagopal (Harvard S.J.D. 2000) teaches at the Massachusetts Institute of Technology. See id.
74. See Interview #6; Interview #27; Interview #54; Interview #59; but see Advice for the Prospective JSD Student, available at 〈http://www. mayasteinitz.com〉 (Feb. 2, 2007, 5:01 p.m.).
75. See Interview #4; Interview #6; Interview #10; Interview #17; Interview #18; Interview #21; Interview #25; Interview #29; Interview #37; Interview #58; Interview #59; Interview #60; infra note 121 and accompanying text. The exception is Wisconsin, which has approximately twenty-five students in residence at any given time. See Interview #14.
76. Around 2003, George Washington limited the number of admits to one or two each year. This limit reflects a recognition of the enormous time commitment required of supervisors and an overarching desire to keep quality standards high. See Interview #21. Around 2004, NYU began limiting the number of new students to five each year to be able to provide full funding to all students for three years. See Interview #27; Interview #34; Interview #61. At both schools, however, applications have been increasing during this period. Columbia also has recently decided to limit admits to those in which the faculty has a strong interest, even if that limits the number of new students in any given year. See Interview #25.
77. Interview #38.
78. Interview #51; cf. Interview #29.
79. See Interview #3 (expressing skepticism about the program); Interview #25.
80. See Interview #14; Interview #24.
81. See Interview #1; Interview #4; Interview #6; Interview #26; Interview #37. None of the schools gives faculty teaching credit for supervising doctoral students.
82. See Interview #20; Interview #26; Interview #34; Interview #37. Some of the most sharp-edged criticism comes from faculty members who hold doctorates in other disciplines. See Interview #3; Interview #6; cf. Edwards, In Search of Legal Scholarship, supra note 52, at 7-15 (reviewing Harvard dissertations produced between 1993 and 1996).
83. Interview #3.
84. The "law and status" nomenclature is borrowed from Guido Calabresi, An Introduction to Legal Thought: Four Approaches to Law and to the Allocation of Body Parts, 55 Stan. L. Rev. 2113, 2127 (2003). The cultural study and law-and-status orientation has been particularly pronounced at Michigan and Columbia.
85. Shauna Van Praagh, Columbia J.S.D. 2000 (social theory).
86. Peter G. Danchin, Columbia J.S.D. 2006 (theories of international law).
87. Marie-Claire Belleau, Harvard S.J.D. 1995 (legal theory).
88. Ok-Rial Song, Harvard S.J.D. 2002 (law and economics).
89. Chao-Ju Chen, Michigan S.J.D. 2003 (feminist legal theory).
90. Ronen Avraham, Michigan S.J.D. 2003 (law and economics).
91. Maya Steinitz, NYU J.S.D. 2005.
92. Zohar Goshen, Yale J.S.D. 1992 (law and economics).
93. Rivka Weill, Yale J.S.D. 2002 (legal history and constitutional theory).
94. It also is consistent with the increased amounts of financial aid some schools are offering. For example, NYU's decision to fully fund students for three years required reducing the number of students. See supra note 76. Yale fully funds students, based on financial need, for up to two years. See Interview #4; Interview #58. Harvard fully funds students, based on financial need, for as long as they are in residence. See Interview #59. J.S.D. participants in Columbia's Associates-in-Law program, a two-year program in which appointees teach legal research and writing to either first-year J.D. students or LL.M. students, receive a tuition waiver, a $44,550 annual stipend, and benefits. See Interview #25; Columbia Law School, Associates-in-Law Program, available at 〈http://www.law.columbia.edu/llm-jsd/assoc〉 (last visited Dec. 28, 2008). Columbia has doubled the number of Associate positions since around 1990. See also Interview #10 (Michigan tries to fully fund first-year students).
95. For example, until approximately 2000, Columbia would not even consider its own LL.M. graduates for admission to the J.S.D. Now most of their students hold Columbia LL.M.s. However, Columbia continues to admit foreign-trained applicants who do not hold a U.S. LL.M. See generally Interview #1; Interview #10; Interview #25; Interview #27; Interview #33; Interview #37; Interview #59; Interview #60; Columbia Law School, J.S.D. Candidates, available at 〈http://www.law.columbia.edu/llm-jsd/jsd/candidates〉 (last visited Dec. 28, 2008) (hereinafter Columbia J.S.D. Web Page).
96. See Columbia University School of Law, Graduate Legal Studies 1994-95 at 3, 5 (only students from the United States, United Kingdom, Republic of Ireland, Canada, Australia, and New Zealand normally are eligible for the J.S.D.); Interview #33 (concerning admission of Canadians); Interview #37 (concerning the exclusion of civil law trained students until around 2000).
97. See Interview #27. Indeed, Columbia finally started admitting civil law-trained students around 2000 in part because of demand among its Israeli LL.M. students. See Interview #33 (foreign students were "beating at our door"); Interview #37 (citing demand among Columbia's international LL.M. students, particularly Israelis).
98. The pattern persists among current students at Michigan, but may be changing at Columbia and NYU. See Interview #60 (as of 2007, Israelis continue to be a significant proportion of Michigan's J.S.D. candidates); Columbia J.S.D. Web Page, supra note 95 (three of seven foreign-trained J.S.D. candidates in 2008-09 are from developed common law countries); NYU J.S.D. Web Page, supra note 40 (eleven of seventeen J.S.D. students in 2008-09 are from developed common law countries).
99. The proportion of Harvard graduates from developed common law countries during 2000-06 was comparable to that at Michigan, but the number of Harvard graduates from other countries was considerably higher by virtue of its much larger program. At both Harvard and Yale, the graduates from elsewhere represented a broad range of countries, including eighteen graduates from continental Europe. Korea was the single largest country of origin: its eleven graduates were twice as many those from any other country. See Database, supra note 7.
100. See Harvard Law School, Graduate Program Participants 2007-08, 49-75 (2007) (twenty-three of seventy-one foreign-trained S.J.D. candidates were from developed common law countries).
101. See Interview #15 (noting the continuing preparation hurdles people from developing countries face).
102. These include Golden Gate, Indiana University at Bloomington, the University of Washington, Washington University in St. Louis, and Wisconsin. See Database, supra note 7. It also disregards the "pipeline" effects generated by a school's ties to a given region (such as Wisconsin's ties to East Asia).
103. At Columbia, three articles is the typical model. At Harvard and NYU, the series of papers approach is the exception. Yale does not explicitly permit this approach, but some students do employ it. See Interview #4; Database, supra note 7. Descriptions of degree requirements appear on the respective schools' web pages.
104. See Interview #4 (as to Yale); Interview #37 (as to Columbia). At NYU, the public is also invited to the defense.
105. Only Michigan appears not to encourage coursework during the first year if the candidate already holds a U.S. LL.M. Elsewhere, much of this coursework is done on an audit basis.
106. See Interview #4; Interview #58; Interview #60.
107. Harvard sponsors an active program of teaching assistantships, workshops, and other teaching-oriented activities for doctoral students. Columbia's primary vehicle for pedagogical training is its Associates-in-Law program. The school recently dropped its special Seminar in Legal Education for J.S.D. students, a course that had been in place since the mid-1930s. See Hupper, The Rise of an Academic Doctorate in Law, supra note 22; Colum. University School of Law, Graduate Legal Studies 2002-03, at 6, 65; Interview #33 (the current J.S.D. Workshop, which focuses on developing scholarship, reflects the view that writing, rather than thoughtfulness about teaching, is what gets people hired). NYU advertises teaching opportunities, but does not actively encourage students to take them. See Interview #34 (teaching distracts J.S.D. students from their central task of writing). Elsewhere, a student occasionally coteaches a course with a faculty member or teaches a stand-alone course at a neighboring school. See Interview #4 (as to Yale); Interview #60 (as to Michigan).
108. This is not the case for anglophone Canada, where law is a graduate degree. In addition, some foreign doctoral students have advanced training in another field. See Interview #58 (noting that some candidates have advanced degrees in economics, philosophy, and the like).
109. See Interview #1; Interview #6 (in law and philosophy, the law school does not offer core canonical courses in philosophy in the way that the arts and sciences department does, and the law school's advanced colloquium in law and philosophy is too advanced for some students); Interview #19.
110. See, e.g., Interview #1 (as to Columbia); Interview #34 (as to NYU).
111. One commented that it works well, particularly at a school (such as Yale) in which many regular courses are taught from an interdisciplinary perspective. See Interview #13. Another takes it upon himself to make sure that it works, even if the student lacks background in the companion field. See Interview #19. Others have suggested that, while the approach may succeed in law and economics, it is less successful in other fields. Interview #6; contast Interview #28 (Harvard has several law and economics scholars who work with S.J.D. students, and S.J.D. work in that field is therefore highly developed). But see Interview #19 (disagreeing with the idea that it may be easier for people to get up to speed in law and economics than in law and philosophy, for example).
112. See Database, supra note 7; Interview #4 (some students have readers from other Yale departments in addition to their required three Yale Law School readers); Interview #6 (his students do a combination of directed reading, law school coursework, and the advanced law school colloquium in law and philosophy; they tend not to do coursework in the philosophy department); Interview #19 (his students do his basic law and economics course and the advanced law and economics colloquium, both at the law school); Interview #34 (coursework in other departments is decided on a case-by-case basis depending on the subject of the dissertation); Interview #58 (Yale students do seminars in topics ranging from law and economics to law and philosophy at the law school, and coursework in other Yale University departments if it would be helpful to their projects); Interview #59 (as to Harvard).
113. Indeed, Harvard initially adopted the approach in the early 1990s to revitalize the S.J.D. for U.S. students. The idea was to admit top J.D. graduates to the S.J.D. directly, train them in another discipline that was rigorous but fell short of a full Ph.D., then have them go on to the
114. One Yale faculty member, for example, noted that Yale's small size enables supervision to be a much less formal affair than Harvard's size permits. A Yale student can wander into the faculty member's office, raise a question about the student's project, and the faculty member will respond "read these three books." The student will do so, come back, and they then talk some more. Harvard cannot do this because of its size, so the school has to institute more formal requirements. This faculty member also noted that Yale's students are top-notch-the school is infinitely more selective than almost every other school. See Interview #32; accord, Interview #28 (confirming cultural differences between Yale and Harvard).
115. See Interview #34.
116. See Proposed Materials for Legal Theory Seminar for First-Year SJDs (2007) (copy on file with the author); Interview #8.
117. See Interview #34.
118. Database, supra note 7.
119. See The Asian Connection, 32 Gargoyle 24 (Spring 2006); Interview #20.
120. See Interview #14; University of Wisconsin Law School, Advanced Law Degrees, available at 〈http://www.law.wisc.edu/grad/prospective/sjd/apply. htm〉 (last visited Jan. 1, 2008).
121. See Interview #20; Interview #43; Database, supra note 7. The vast majority of dissertations are in fact supervised by one of the two. Both scholars' own work is probably best characterized as policy pragmatist.
122. See Interview #24. Many applicants also have completed a course-based master's degree, whether in Wisconsin's course-based M.L.I. program or another U.S. school's LL.M. In the past the school has strongly preferred students who had completed its own M.L.I, program, but more recently the school has admitted increasing numbers of students who did a course-based LL.M. elsewhere. See Interview #20.
123. Interview #14; Interview #57. The school does, however, offer a workshop in which students periodically present their work in progress.
124. Recently, the program has preferred candidates from George Washington's own LL.M. program, although others continue to be admitted. The preference is partly a function of the need to have the enthusiastic support of the applicant's proposed faculty supervisor and a commitment to serve on the part of each member of the applicant's dissertation committee. See Interview #21. It is also a function of different countries' "radically different" expectations concerning dissertation quality and academic integrity. The school is able to catch and address problems of this nature among its own LL.M. graduates; it is much more difficult to do so among graduates of other LL.M. programs. See Interview #26.
125. Interview #21. At George Washington, as at Columbia and Wisconsin, there is no interim screening of S.J.D. students after they are admitted to the program.
126. Sohn, then in his late seventies, was recruited to join George Washington's faculty by Thomas Buergenthal in 1991. See Jo M. Pasqualucci, Louis Sohn: Grandfather of International Human Rights Law in the United States, 20 Hum. Rts. Q. 924 (1998). Sohn supervised the school's first S.J.D. graduates since 1990, both of whom graduated in 1994. A few other faculty members began supervising dissertations in the early 1990s. See Database, supra note 7.
127. See Database, supra note 7.
128. Interview #21 (referring particularly to intellectual property requirements and the government procurement side agreement under the WTO); Interview #26; Database, supra note 7.
129. Interview #21.
130. Penelope Mathew, Sovereignty and the Right to Seek Asylum: A Study of Restrictive Measures Against Asylum-Seekers (2001) (unpublished J.S.D. dissertation, available at Arthur W. Diamond Law Library, Columbia University).
131. Yongjae Kim, Analyses of the 1998 Korean Banking Reform and Suggestions to the Future Reform Modeled on the United States (1998) (unpublished S.J.D. dissertation, available on microfiche in Hein's Legal Theses and Dissertations, no. 017-00304).
132. Alan Watson, Legal Transplants: An Approach to Comparative Law (Athens, Ga., 2d ed. 1993).
133. See, e.g., Pierre Legrand, Against a European Civil Code, 60 Mod. L. Rev. 44 (1997); William Ewald, Comparative Jurisprudence (I): What Was It Like to Try a Rat?, 143 U. Pa. L. Rev. 1889 (1995); William Ewald, Comparative Jurisprudence II: The Logic of Legal Transplants, 43 Am. J. Comp. L. 489 (1995).
134. See Daniel Berkowitz, Katharina Pistor, and Jean-Francois Richard, The Transplant Effect, 51 Am. J. Comp. L. 163 (2003) (contrasting "receptive" and "unreceptive" transplants); Langer, From Legal Transplants to Legal Translations, supra note 3; Legrand, Against a European Civil Code, supra note 133; Miller, A Typology of Legal Transplants, supra note 2.
135. See deLisle, Lex Americana, supra note 3, at 280, 284-85; Mattei, Why the Wind Changed, supra note 3, at 207-08.
136. Mattei, Why the Wind Changed, supra note 3, at 207-08.
137. Between 1990 and 2006, the seven schools conferred a total of thirty-eight doctorates on Canadian-trained students. Of these, at least twenty-two returned to Canada to pursue academic careers. During the same period, ninety-five Israeli-trained students received doctorates from the seven schools, and at least fifty returned home to pursue academic careers. See Database, supra note 7. The statistics are particularly striking given the two countries' populations.
138. See, e.g., Arthurs, Poor Canadian Legal Education, supra note 37; Jerome E. Bickenbach and Clifford Ian Kyer, The Harvardization of Caesar A. Wright, 33 U.T.L.J. 162 (1983).
139. Peter W. Hogg, The Charter of Rights and Canadian Legal Education, in Legal Education in Canada 300, 301-02 (Roy J. Matas and Deborah J. McCawley eds., Montreal, 1987).
140. This was the so-called Arthurs report, more formally Consultative Group on Research and Education in Law, Law and Learning: Report to the Social Sciences and Humanities Research Council of Canada (Ottawa, 1983).
141. Those involved with the programs at the time note that these Canadian students were extremely strong academically. See Interview #17; Interview #29; Interview #30; Interview #33.
142. For example, two faculty members who work in feminism, human rights, and equality theory report supervising numerous Canadian students beginning around this time. See Interview #17 (noting that her Canadian students tended to come with strong pro-feminist agendas); Interview #30. See also Arthurs, supra note 37, at 389 ("In the 1970s and 1980s, foundational texts by leading American scholars on feminist legal theory, critical legal studies, law and economics, and legal pluralism helped to reconfigure the landscape of Canadian legal scholarship, although mutant strains of these intellectual and political perspectives ultimately emerged in northern latitudes."); Graham Parker, Legal Scholarship and Legal Education, 23 Osgoode Hall L.J. 653 (1985) (bemoaning this trend).
143. Joost Blom, Introduction: Looking Ahead in Canadian Law School Education, 33 U.B.C. L. Rev. 7, 10 (1999).
144. See, e.g., Edrey, A Global Legal Oddessy, supra note 37, at 345; Asher Grunis, Legal Education in Israel: The Experience of Tel-Aviv Law School, 27 J. Legal Educ. 203 (1975); Joseph Laufer, Legal Education in Israel: A Visitor's View, 14 Buff. L. Rev. 232 (1964).
145. On the growth of judicial activism in Israel during this period, see Robert H. Bork, Coercing Virtue: The Worldwide Rule of Judges 111-134 (Washington, D. C., 2003); Gary Jeffrey Jacobsohn, The Permeability of Constitutional Borders, 82 Tex. L. Rev. 1763, 1773-87 (2004); see generally Aharon Barak, The Judge in a Democracy (Princeton, N.J., 2006).
146. This was due in part to the emergence of several new private law schools.
147. See Yoseph M. Edrey and Sylviane Colombo, Haifa and Its Law School: Toward the Future, 51 J. Legal Educ. 338, 342 (2001); Oren Gazal-Ayal, Economic Analysis of "Law & Economics," 35 Cap. U. L. Rev. 787 (2007); Nuno Garoupa and Thomas S. Ulen, The Market for Legal Innovation: Law and Economics in Europe and the United States, available at 〈http://esnie.u-parisio.fr/ pdf/garoupa-2005/Legal-Innovation.pdf〉 (last visited Dec. 28, 2008); Interview #46 (also noting that the United States is a comfortable place to do a doctorate and the fact that many of the candidates' predecessors held U.S. doctorates); Interview #49.
148. Between 1990 and 2006, the seven schools conferred a total of thirty-eight doctorates on Korea-trained students. Of these, at least twenty-three returned to Korea to pursue academic careers. During the same period, twenty-eight Taiwan-trained students received doctorates from the seven schools, and at least seventeen returned home to pursue academic careers. Database, supra note 7.
149. In particular, the bar passage rate, historically kept at around 5 percent, reached 14 percent in 1989. Since then, it has remained at approximately 10 percent. See Jane Kaufmann Winn and Tang-chi Yeh, Advocating Democracy: The Role of Lawyers in Taiwan's Political Transformation, 20 Law & Soc. Inquiry 561, 573 (1995).
150. Joseph L. Pratt, The Two Gates of National Taiwan University School of Law, 19 UCLA Pac. Basin L.J. 131, 146 (2001); see generally Winn and Yeh, The Role of Lawyers, supra note 149.
151. In the 1970s and 1980s, U.S. schools conferred approximately thirty-five doctorates on students from Taiwan. Of the twenty-seven for whom career information is available, fourteen pursued academic careers in Taiwan. The first graduate arrived at NTU in the early 1980s, and another three joined the faculty in the late 1980s. See Database, supra note 7.
152. In addition to the seven schools examined in this study, Chicago, Duke, Stanford and the University of Washington are represented. See id.
153. See Interview #42.
154. See Lo, Driving an Ox Cart, supra note 38, at 41-43 (also noting the continuing emphasis on memorization rather than analysis, and law on the books rather than law in action); Pratt, The Two Gates, supra note 150, at 172-73, 176.
155. See generally Kyong Whan Ahn, The Influence of American Constitutionalism on South Korea, 22 S. Ill. U. L.J. 71 (1997); Chan Jin Kim, Korean Attitudes Towards Law, 10 Pac. Rim L. & Pol'yJ. 1 (2000).
156. See Ahn, The Influence of American Constitutionalism, supra note 155; Kim, Korean Attitudes, supra note 155; Jeong-Oh Kim, The Changing Landscape of Civil Litigation, in Recent Transformations in Korean Law and Society 321 (Dae-Kyu Yoon ed., Seoul, 2000); Kun Yang, Judicial Review and Social Change in the Korean Democratizing Process, 41 Am. J. Comp. L. 1, 2-4 (1993) (constitutional litigation).
157. For a small sampling, see Handong Global University, available at 〈http://www.han.ac.kr/n-english/〉 (last visited Dec. 28, 2008) (a university founded in 1995 that includes an International Law School founded in 2001); Korea Aerospace University, available at 〈http://www.hangkong.ac.kr/ english/〉 (last visited Dec. 28, 2008) (whose Department of Air and Space Law was established in 1998); Transnational Law and Business University, available at 〈http://www.tlbu.ac.kr/〉 (last visited Dec. 28, 2008) (a university founded in the mid-1980s that includes a Graduate School of Law founded in 2000).
158. See Dae-Kyu Yoon, Current Reform Efforts in Legal Education and the Delivery of Legal Service in Korea, in Educating for Justice Around the World: Legal Education, Legal Practice and the Community 64, 75, 83 (Louise G. Trubek and Jeremy Cooper eds., Brookfield, Vt., 1999) ; Jae Won Kim, The Ideal and the Reality of the Korean Legal Profession, 2 Asian-Pac. L. & Pol'y J. 45 (2001); Hoyoon Nam, Note, U.S.-Style Law School ("Law School") System in Korea: Mistake or Accomplishment? 28 Fordham Int'l L.J. 879 (2005); Soogeun Oh, Globalization in Legal Education of Korea, 55 J. Legal Educ. 525, 526-27 (2005).
159. See Tae-Jong Kim, Law School to Open in 2009, The Korea Times, July 4, 2007, available at 〈http://www.koreatimes.co.kr/www/news/nation/nation- view.asp?newsIdx=5931&cate goryCode=117〉 (last visited Jan. 9, 2009).
160. The number of U.S. doctoral graduates grew from seven in the 1980s to approximately thirty in the 1990s and approximately forty-five in 2000-06. Of those graduates for whom career information is available, two thirds of 1990s graduates and three fourths of 2000-06 graduates returned home to pursue academic careers. See Database, supra note 7.
161. See SNU Faculty Web Site, supra note 8.
162. Jae Won Kim, The Ideal and the Reality, supra note 158, at 66-67.
163. See deLisle, Lex Americana, supra note 3, at 180; Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34, 47 (1992); Mattei, Symposium, supra note 3.
164. See Hupper Part II, supra note 24; Database, supra note 7.
165. See Interview #34 (Israeli J.S.D. students are increasingly looking at the U.S. market first, because the job market at home has tightened).
166. See generally Sanjeev S. Anand, Canadian Graduate Legal Education: Past, Present and Future, 27 Dalhousie L.J. 55 (2004).
167. Indeed, some U.S.-trained graduates have been hired for this purpose. These include Marsha Echols (Columbia J.S.D. 2001) of Howard, and John Ohnesorge (Harvard S.J.D. 2002) and Asifa Quraishi (Harvard S.J.D. 2006), both of Wisconsin.
168. See Beth Potier, Looking at Law in Classroom, Not Courtroom, Harv. U. Gazette, Oct. 24, 2002, available at 〈http://www.hno.harvard.edu/gazette/ 2002/10.24/13-sjd.html〉 (last visited Dec. 29, 2008); Interview #48. Recent examples include Georgetown's Alvaro Santos, Harvard's Gabriela Blum, and NYU's Mattias Kumm. See supra notes 72-74 and accompanying text.
169. Recent examples include Michigan's Omri Ben-Shahar, NYU's Oren Bar-Gill, Penn's Gideon Parchomovsky, and Virginia's Michal Barzuza and Dotan Oliar. See supra notes 72-74 and accompanying text. But see Interview #54 (law and economics candidates face heightened scrutiny about their ability to teach doctrinal courses, and foreign-trained law and economics candidates face this more than do U.S.-trained candidates).
170. Interview #34.
171. Interview #1 (referring primarily to people admitted directly to the doctorate, rather than people admitted after having completed the school's LL.M. degree).
172. Interview #45.