Friday, June 3, 2011

Another Advantage Aspiring Law Teachers on the Right Have Over Others

It's programs like this, which employ ideological criteria for eligibility.  The American legal academy is already quite far to the right on a range of economic and policy issues by comparison to both the rest of the U.S. academy and the legal academies in other common law jurisdictions; programs like this, which provide special opportunities to those who would push it even further to the right, really do make it absurd to then turn around and complain that "conservatives" are at any kind of disadvantage in securing academic jobs.  (I would like to add that this is not a knock on these programs, and I would absolutely encourage students who meet the ideological criteria to apply for these opportunities.) 

For some of my earlier thoughts on these issues, in dialogue, as it were, with Professor Bainbridge see this old post of mine, as well as my discussion with Peter Schuck (Yale).

ADDENDUM:  From last year's post, linked above:

[T]he real 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.

ANOTHER:   A pseudonymous commenter named "Flipper" at a right-wing blog responds to the preceding as follows:

As someone who is a conservative and has been on the market for a number of years, I find Leiter’s position absurd. Anyone who is paying attention knows that conservatives have a very hard time on the market (and if you’re a social conservative, forget about it). I know of several candidates who possess PhD’s and multiple publications (one guy has 5 law review articles) who have not secured jobs on the market. Now, you tell me what liberal candidate with those credentials could not obtain a law faculty position anywhere in the country after multiple attempts? It’s just ludicrous to assert that there isn’t a substantial bias.

Now if blog comments were indicative of dialectical skills, another explanation for Flipper's difficulties on the job market would suggest itself.  For it does not establish "substantial bias" that Flipper hasn't gotten a job or that Flipper claims to know of "several candidates who possess PhD's and multiple publications" who have not secured teaching jobs.  The sample is too small, and the testimonial evidence is too obviously tainted by bias and too free of pertinent details (PhDs in what?  articles on what, published where?), to support any conclusions at all.  And off the top of my head, I can immediately name three "candidates who possess PhDs and multiple publications" whose intellectual profiles are either apolitical or liberal, and who have not secured academic jobs in the last couple of years.  That quite suffices to wholly undermine the force of the anecdotal 'evidence' on offer here.

Of course, it is a familiar feature of these discussions that the loudest complainers and protesters have such obviously self-serving reasons for believing in bias and disadvantage that it becomes difficult to disentangle fact from projection in their decriptions of the academic world.  Those, by contrast, who have no self-serving reasons to complain (such as Professor Bainbridge, whose academic career has flourished on the merits of his work) take a more nuanced view of the possible role of political bias in the hiring process.

"Flipper" does, however, raise the interesting case of "social conservatives," who may indeed present a different case than the free market utopians and libertarians whose success in legal academia is so obvious and widespread as to make claims of bias ridiculous on their face.   Here I join Flipper in having nothing more than anecdotal evidence, though a fair bit of it, and over a longer period of time.  One must distinguish, it seems, between social conservatives whose scholarship is largely unrelated to their political and moral views (Professor Bainbridge may be such a case), and those whose political and moral views are manifest in their scholarship.  The former, like their libertarian colleagues, seem to flourish in legal academia; the latter encounter more difficulties.  (Again, that is based on accumulated anecdotal evidence--if there is real data, please e-mail me.)  The key question, of course, is whether the difficulties the latter encounter should be denominated cases of pernicious bias.   And everything will then turn on what range of views is being picked out by "social conservative."  One example might be opposition to gay marriage.  Is it possible to produce high quality scholarship in moral or philosophical opposition to gay marriage?  At this point, I think the answer is obviously negative (with one caveat, to which I'll return); one need only look at the efforts of genuinely important philosophers of law, like John Finnis, who, when they venture near this topic, produce work of such embarrassing dialectical feebleness as to make one wonder whether it is really the same author of the other important jurisprudential work one has read.   If that is right, then the difficulties in academic hiring confronted by the proponents of such views can not be denominated cases of pernicious bias. 

The caveat to the preceding generalization is that there is work on gay marriage that proceeds from explicit and particular sectarian premises that is, in every other respect, recognizable as sound scholarship, except that its sectarian premises are not widely accepted and not otherwise rationally mandatory (in some cases not even rationally warranted, though of course institutions may commit to principles in the latter category as well).   Schools committed to those sectarian premises might then reasonably be expected to hire such scholars, but it is hard for me to see how schools not predicated on those premises can be accused of pernicious bias for not doing the same.

Gay marriage is only one case, of course, though one particularly salient at present.  Other issues on which "social conservatives" (depending on how the phrase is being used) might have distinctive takes include, for example, affirmative action or the constitutionality of certain kinds of religious speech and activities in the public schools.  These cases seem unlike the case of gay marriage, since there is a range of opinion expressed in work that otherwise satisfies any sensible standards of sound scholarship, and these are probably the sorts of cases where charges of pernicious bias have more force.   How often they actually occur is a different question, to which I do not know the answer.  They presumably do occur, to the shame of the institutions where it happens.  Even this, however, does not affect the general point of my original post.

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