Tuesday, August 3, 2010
At least once every year or two it seems, we have to have an outburst of this sob story, often wrapped in some pseudo-science, as it is this time. (An earlier case here.) The giveaway fact in this latest study is that 60% of the new faculty hires had no discernible political ideology. This might have given the authors some pause, especially given the small sample size they started with. But perhaps 60% had no discernible political ideology because political ideology just isn't relevant to most of what law teachers and scholars do? Here is my colleague Richard Epstein:
Law is a profession, and you have to know such things as the civil rules of procedure and corporations. The subject matter requires technical knowledge. There are right and wrong answers. The gap therefore among law professors may be large on such questions as do we believe in constitutional originalism. But by the same token, the technical and professional anchor tends to bring the two sides closer together, for the great benefit of the profession. That is perhaps why it is often hard to figure out where academics stand on the political spectrum from reading their legal writings.
And here is what I said some time ago in a debate with Peter Schuck (Yale):
"[P]olitical orientation" isn't what matters for viewpoint diversity in legal scholarship and legal education, except, perhaps, on a very small number of topics. For the bulk of the legal curriculum, viewpoint diversity means differing views about what you call the "technical" questions—causation in tort law, default rules in contract, the foundations of the hearsay exceptions, and so on—but which I am inclined to describe as the bread and butter of a legal education.
(And let me add that in an era of "globalization," the striking thing about American law faculties is how far to the right they are, but that's a topic for a different day.)
Now the real story, it seems to me, is about the massive advantage job seekers on the political right have in virtue of the coordinated activities of the Federalist Society, which funds multi-day academic "boot camps" to educate those on the right seeking teaching jobs in all aspects of the process, including job talks, interviews, and self-presentation, both in person and in writing. There is simply nothing like this available to a "liberal" academic job seeker who doesn't happen to graduate from a law school (like Chicago) that provides similar support to its alumni on the teaching market.
And then, of course, once Federalist academics are in teaching, they benefit from a continuous stream of invitations to speak at Federalist Society events at law schools across the country, which gives them an exposure not available to young legal academics not on the right. (Federalist Society events, to their credit, generally involve speakers with opposing views, but the 'opposition' is usually drawn from the local faculty, not outsiders.) Watching this parade of events at Chicago and before that at Texas, I am struck by the fact that the majority of conservative academics brought through would probably not be invited to a workshop at the school on the intellectual or scholarly merits, in any case, certainly not with the frequency with which they get brought through courtesy of the Federalist Society. So the Federalist Society network is a powerful leg up in terms of visibility for young legal academics on the right.
So perhaps it is time to retire this sob story. Political ideology doesn't really figure in scholarship outside of fields with little law, like constitutional law, and the advantages available to young legal scholars and aspiring academics on the right dwarf those available to anyone else.