Over at Prawsblawg, Mark Fenster has a post entitled Specialization in law school faculties responding to a comment by Kevin Heller on a post by Paul Horwitz. The original topic had to do with the sorting of entry-level candidates & the influence of rankings thereon, but I am interested in a side topic--the question whether there is meaningful specialization in law schools and differentiation among law schools. Here is a taste:
I don't think you see this kind of specialization as much in law schools as in graduate or even undergraduate programs. George Mason's methodological and political commitments, for example, are so striking because it's so rare in law schools to commit to that degree, while many graduate programs sell themselves based on the single or limited number of approaches that their key faculty offer. Law schools tend to be generalist institutions that offer the same general variety of courses -- frequently because they have to under accreditation requirements -- and that are composed of a typically motley crew of faculty members hired over the course of several generations. And over those generations and appointments seasons, those hires have served either a variety of curricular needs or are based on some notion of a "best athlete" available at the time -- an athlete whose quality and work are likely to be defined based on that which is prevalent on the law hiring market and in the larger world of academia at the time they're hired. As a result, specialization is more difficult to achieve. I also think there's also much less interest on the demand side, among students and alumni, than in grad and undergrad programs. (I have mixed feelings about special programs and institutes and the like within law schools, but that's a whole nother set of issues.)
I want to back up and approach this topic from a slightly different angle. Let's differentiate between four different ways in which a law school faculty could differentiate itself by specializing. This is not an exclusive list:
1. Specialization in the JD Curriculum.
2. Specialization in the training of future law professors--either via the JD program, graduate programs (LLMs & SJDs), or post-doc opportunities (fellowships, VAPS, etc.).
3. Specialization among the faculty in a particular doctrinal field, e.g. criminal law, intellectual property law, etc.
4. Specialization among the faculty in a particular methodology, e.g. law and economics, normative legal theory, empirical legal studies, doctrinal analysis, etc.
Another point or two that frames the discussion. Size matters: very large faculties can have deep curricular offerings in many areas, offer specialized graduate training, have several areas with multiple faculty members doing scholarship, and also maintain groups of faculty with several methodological orientations. A "very large faculty" would be a faculty that approaches 100 full-time tenured and tenure track faculty members.
Small faculties cannot do all these things--covering the JD curriculum will create strong pressures against the creation of specialization in any dimension except methodology. JD programs must offer all the basic subjects & for small to medium-sized faculties, this requires subject-matter diversification. A "very small faculty" (today) would have fewer than 30 tenured and tenure-track faculty members.
On the other hand, specialization in methodological foci is possible, even on a small-to-medium-sized faculty. Back in the day, almost every faculty specialized in one methodology--formal doctrinal analysis. From the 50s through the 80s a different methodology--legal process law-and-policy analysis--was overwhelming predominant. Today, specialization means having a faculty with interdisciplinary clusters, e.g. a law-and-economics group, a normative theory group, an empiricial-legal-studies group, a historical group, and so forth.
Most American law schools do not train legal academics in significant numbers, but among those that do, the development of specialized competencies is a must for "true success" in placement, i.e. in getting jobs for one's JDs, LLMs & SJDs, or post-docs. "True success" is a loaded term. To lay my cards on the table, by "true success" I mean placement on law faculties with a reputation for the support of serious scholarship. This is not the same as "highly ranked" law faculites--if by "highly ranked" you mean U.S. News & World report. Of course, there is an even more fundamental measure of output: "true success" really means producing to legal scholars who do valuable work--placement is a proxy for and also nstrumental to that more fundamental goal.
Specialization is necessary for true success because excellence in legal scholarship requires serious training in a relevant tool set. Without a cluster of legal economists, it is difficult to reliably train legal economists. Without a cluster of normative theorists, it will be difficult to train future legal academics with serious normative theory skills. Of course, a very large law school can have clusters in several methodologies and doctrinal fields. The smaller the institution, the more difficult it is to diversify and hence the greater the importance of focus or specialization.
