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Liberal Bias in Law School?
At Above the Law, Editors David Lat and Elie Mystal are debating liberal bias in law school:
As we mentioned this morning, a report from researchers at Berkeley Law suggests that legal education is a field dominated by white, male, elite liberals. […]
There might be a liberal bias among law school professors? Shocking! Why are we just being informed of this?
But is it really as bad as the study makes it out to be? While the researchers determined that 52 of 60 professors showed a liberal slant, the report goes on to explain that the researchers couldn’t get a clear read on 60% of the 149 entry-level professors sampled.
And even if we agree that there is some liberal bias among law school professors, does the distinction matter? Is there really a “liberal” or “conservative” way to educate people about the law?
There is no question that if law professors were arrayed on a one-dimensional liberal to conservative line, the majority would be toward the liberal end. The interesting questions are two.
First, just what would the distribution look like? This is hard to gauge without some detailed work, but on average I would say that there are more left-wing democrats than center-left democrats. I define the difference as follows. The former are those who have sympathy for programs of redistribution on such key areas as education and health care, but are by and large supportive of market institutions on the production side of the line. There is an effort to make good on the earlier social democratic tradition. The left democrats are in favor of a larger public sector and are deeply suspicious of markets more or less across the board. To put the point most vividly, the center left group is uncomfortable that Obama is too far to the left. The left liberal group is uncomfortable that he is too far to the right. There is a lot of difference there.
On the conservative side there is also a break of a different order, between social conservatives and libertarians. There are some people who are both, but neither group is represented in large numbers. I have not done any empirical work, but my own sense is that a larger fraction of the right of center law professors are active in scholarship than on the left, which changes the public discourse.
Second, there is one factor that mutes these differences in many instances. 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.
Published in General
from my preliminary reading of the Law, I have also come to believe that something about the Law itself actually alters the nature of the conversation in such a way that it is nearly impossible to assert an ideological position on such a large variety of questions. The Law is process ( and interestingly seems to be a fairly conservative process that respects the status quo). It forces discussion to be largely at the margins where lawyers toy with particular bits of law as applied to particular facts. It seems that very little of Law is actually about landing on a Big Question case and having some sort of mythical discussion a la 1790 that forever alters the fate of our society.
with that said, you of course have to be able to look at the incrementalists who try to pluck out suits that keep inching the Law in a direction that is overall harmful.
It may not matter much if my divorce lawyer is an originalist, or not, a socialist, or not, but new judges are lawyers first, and most Supreme Court justices are trial judges first. The numbers matter eventually.
true, but what i am saying is that the process of Law itself tends to resist the biases of judges. We hear about the outrageous cases that were clearly decided “badly”, but there are something like 8 million suits a year in the US (thought certainly not all go to court). What do we hear about in the headlines each year? I think a dozen would be a high number.
but i still agree, we need to be alert to the incremental progress of agendas. how do you resist that once it is detected? I have no idea.
I know the students who wrote the study, I haven’t read it, but I have no reason to doubt their honesty or their results. From everything I have seen, they may well be understating the gap between liberals and conservatives in law faculty hiring.
There are two reasons why. First, conservatives, for good reason, tend to hide their political beliefs when they are on the job market and when they are untenured. They suspect, perhaps reasonably in light of this study, that there is a bias against them. I know conservatives at other schools who try to avoid writing on anything remotely controversial — this is bad for scholarship and teaching, because it discourages our best minds and fullest debates on the most important subjects.
Second, there is what is known as a selection effect. Conservatives may not even be entering the job market because of perceived bias. I know young conservatives who would make excellent teachers, but don’t want to go through the hassle of a biased hiring and promotion process. I can’t blame them, especially when they are forgoing millions of dollars in lifetime income from big law firm practice..
Another way to cut into this is to consider what kind of lawyers are being produced, and what kind of lawyers students who accept their admissions want to be and become. I once attended a fascinating seminar in which one speaker bemoaned the tendency of libertarian organizations to abhor the idea of sending interns and fellows into public law positions.
My wackiest lefty prof taught CivPro, and area where technical knowledge should carry the day and there should be less obvious bias than in ConLaw or Torts. We got rid of her by unanimous complaint to the administration when she said nothing whatever in the first two weeks about the actual subject. Even the lefties in the class figured we needed to learn what “Erie” actually was.