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Brian Leiter
University of Chicago Law School

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Wednesday, August 4, 2010

More Thoughts on Political Diversity in the Legal Academy

Tobias Wolff (Penn) writes:

Thanks for your cogent comments on this topic.  I would add the following, for your consideration.

"Liberal" and "conservative" are highly context-dependent labels.  The "liberals" on the present Supreme Court would have been moderately conservative centrists in most respects just thirty years ago, and I dare say that the average "liberal" in the legal academy today would react with hesitation or even hostility to programs for the remediation of racial and economic inequality that were an entirely mainstream part of public discourse in the 1960s and 70s.

If one is actually interested in studying this question -- and I agree with you that the usefulness of doing so has yet to be demonstrated -- then it would seem that one should pose more targeted questions about the positions of faculty members on particular issues of social, economic, political and legal disputation, and then ask how the results measure against certain norms or principles in the legal profession and academy that have remained relatively stable through shifting popular definitions of what is "liberal" and "conservative."

For example, while this is not my field, I think that one could demonstrate without difficulty that the legal profession -- both lawyers and courts who practice in the area and scholars who write in the field -- has exhibited a broad and stable consensus for some time on certain principles regarding the treatment of detainees during times of war and the status and applicability of the protections of the Geneva Conventions.  Recent events, largely centered on the policies and actions of the Bush administration, have led to a debate that has disrupted that consensus.  For that reason, a set of principles about which there was probably little disagreement (and hence little political polarization) fifteen years ago are now the subject of active dispute.  In that highly specific context, those seeking to preserve the prior consensus are termed "liberal" while those seeking to replace that prior consensus with a more aggressive view of executive power are termed "conservative."  (The labels are inapt here, of course, since it is the "liberal" position that seeks to preserve the old arrangement.)

In such a case, it should come as no surprise that the "liberal" position on this issue is the dominant one, for it is the position that conforms most closely to a set of principles and practices within the profession as to which there has been broad consensus for a long time.  The breakdown of "liberal" and "conservative" on this issue would seem to be less a statement about the biases and personal commitment of those who make hiring decisions and more an illustration of how the positions currently defined as "liberal" and "conservative" on this issue are differently situated with respect to established norms in the profession and previous areas of consensus.

It might be interesting -- with a stress on the qualifier "might" -- to ask some careful questions about the views of law professors on a range of such issues, and to try to make some disciplined observations about how different positions on the issues in question measure up against the norms of the profession and previous areas of consensus.  If there are particular viewpoints on particular issues as to which there is both (1) a significant skew in the proportion of hires who hold the position currently defined as "liberal" vs. the position current defined as "conservative," or vice versa; and (2) an inconsistency between that skewed result and the extent to which the favored position represents a departure from, rather than a continuation of, established norms in the profession and previous areas of consensus, then that might be an interesting result.

It is certainly true that today's "conservatives" are largely what would have been called in the 1970s reactionaries, on the one hand, and libertarian radicals on the other. 

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