Wednesday, June 15, 2005
Passing as a Conservative
It is commonly argued that tenure standards distort what professors choose to write about. This has to be true, at least on the margins. But given that tenure is a relatively lower bar in law than other disciplines, I think the hiring process is the real distorting force. Each year, many aspiring law professors choose writing topics based on what they think will help them get a job: (1) "fit" with the area they are trying to sell themselves as a specialist in; and (2)
the more boring the better innocuousness. I didn't choose this strategy, pre-hire, mostly because I couldn't stomach the idea of writing about topics that didn't inspire me. However, I know of multiple friends who have rejected topics out of hand, for fear of being seen as too conservative controversial. This chilling effect was well explored in the blawgosphere back in '03. (See here and here for...different viewpoints).
The previous discussion in the blawgosphere had an elite twist that makes it a pretty unhelpful guide for what life looks like at the vast majority of American law schools. There is an argument that a good way to position yourself for a law school teaching job is write doctrinal pieces with a conservative or libertarian slant. If you are naturally liberal, that means you might want to try to pass as a conservative.
Why? Well, the focus on doctrine is important because most lawyers and law students are at a significant disadvantage in writing theory articles. You don't have access to a network of colleagues who can vet your literature review to see if you have missed someone or something crucial, nor (for lawyers) do you have easy access to a library for book research. Theory takes much longer to write, and it requires more uninterrupted thinking/writing time. Finally, and most practically, it is my sense that doctrine publishes "better" than pure theory pieces (not in the YLJ, of course).
But adopting a (typically) conservative or libertarian stance is just as important. There are a few reasons. First, there are now a large number of secondary journals that focus exclusively or substantially on publishing conservative pieces. (HJLPP is just one example) Now, there may be nearly as many "liberal" journals. But, according to some, there are few conservative law professors whose writings could take up the spaces in conservative pubs, while there are hordes of liberal professors seeking to place their latest work in, say, CRCL. (Which is why, incidentally, Dan's recent placement in CRCL is so very impressive). Second, my experience in placing articles while in practice is that it felt
utterly somewhat random, and any success (such as it was) was based on one editor taking an interest in a piece and shepherding it through the process. Given that conservatives in law school often feel (unfortunately) relatively intellectually isolated, such students on law reviews are likely to be on the lookout for that rare ideologically sympathetic article. Liberal law students, on the other hand, are going to be overwhelmed with like-minded submissions. In short, being conservative is an easy way to stand out from the crowd without letterhead.
Now what about the problem of getting hired as a conservative? Again, my very anecdotal sense is that the ideological vetting the blawgosphere discussed two years ago is very much a phenomenon of top schools (not surprisingly, given who participated in that debate). And very few folks are really in contention for those jobs (check out the statistics at Legal Theory Blog). For most jobs, having a few publications gets you in the door, and personality (that is: being seen as someone who will not self-destruct while teaching) gets you the prize. (This analysis puts to the side other important factors in the hiring decision - including race and gender).
So, my only-partially-tongue-in-cheek advice to friends and students alike is: if you are going to be strategic in your pre-hire writing, consider the contrarian path, and think to yourself: what would Justice Thomas say?
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Just see these superfluous ones! Sick are they always; they vomit
their bile and call it a newspaper. They devour one another, and
cannot even digest themselves.
Just see these superfluous ones! Wealth they acquire and become
poorer thereby. Power they seek for, and above all, the lever of
power, much money- these impotent ones!
See them clamber, these nimble apes! They clamber over one
another, and thus scuffle into the mud and the abyss.
Towards the throne they all strive: it is their madness- as if
happiness sat on the throne! Ofttimes sitteth filth on the throne.-
and ofttimes also the throne on filth.
Madmen they all seem to me, and clambering apes, and too eager.
Badly smelleth their idol to me, the cold monster: badly they all
smell to me, these idolaters.
My brethren, will ye suffocate in the fumes of their maws and
appetites! Better break the windows and jump into the open air!
Do go out of the way of the bad odour! Withdraw from the idolatry of
Do go out of the way of the bad odour! Withdraw from the steam of
these human sacrifices!
Open still remaineth the earth for great souls. Empty are still many
sites for lone ones and twain ones, around which floateth the odour of
Open still remaineth a free life for great souls. Verily, he who
possesseth little is so much the less possessed: blessed be moderate
There, where the state ceaseth- there only commenceth the man who is
not superfluous: there commenceth the song of the necessary ones,
the single and irreplaceable melody.
There, where the state ceaseth- pray look thither, my brethren! Do
ye not see it, the rainbow and the bridges of the Superman?-
Thus spake Zarathustra.
-Nietzsche, Thus Spake Zarathustra.
Posted by: Paul Gowder | Jun 15, 2005 9:59:32 AM
Dave, you are one sick puppy.
Posted by: lawprof | Jun 15, 2005 11:12:21 AM
I've known Dave for a few years, and I wouldn't class him as a "sick puppy" myself. Other than the required element of masochism that accompanies being a Phillies fan, he's an entirely normal guy.
I think that his point is a plausible theoretical position, but one that depends on a lot of empirical factors that are hard to gauge. There may be an under-supplied market in conservative scholarship -- but then again, there may not be.
Any perception of an underserved market in legal scholarship is like seeing which lanes are moving best on the freeway. You suddenly notice that the right lane is moving faster, so you switch to that lane. However, 37 other cars also make that observation, and also switch. And suddenly you're in a slow lane again.
I may be wrong; perhaps the unmet demand for conservative articles is higher than I thought. But I think that demand is limited, and any perceived shortage is small, and would quickly be overwhelmed by any move from liberals into conservative scholarship.
Posted by: Kaimi | Jun 15, 2005 11:34:32 AM
I've seen at least one instance where the opposite occured. I was on the articles committee of a top-5 journal. We got a great conservative piece -- one of the half-dozen best we'd seen all year.
The moderates on the committee all wanted to pick it up, but the liberals killed it, and it lost by one vote. (It went to a top-20 placement anyway).
Posted by: Anony Mouse for this one | Jun 15, 2005 11:38:02 AM
1. In my quarters, "doctrinal pieces" with *any* political slant are simply not considered scholarship (possible exception: Con Law). Doctrinal papers are the middle ages of legal scholarship. IMHO, of course.
2. As for "law-and" papers, a conservative/libertarian slant clearly hurts your chances of getting faculty support. I've seen lots and lots of evidence of this bias and zero evidence to the contrary (with the sole exception of George Mason).
3. If all you want is a publication record, a left-wing slant is undoubtedly the way to go. The number of left-wing law journals is vastly disproportionate to the number of right-wing journals, even adjusted for the ratio of left-to-right faculty. Most law schools have several left-wing journals (look for monikers like "civil liberties," "justice," "race," "gender," "women," “sexuality,” "environmental," "children," “family,” "humanities," "literature," "social policy/problems," “criminal,” “urban,” “employment,” “immigration,” “poverty,” “ethics,” and, usually, “international.”). Very, very few law schools have a right-wing journal (business law journals don’t count, since most of them are either apolitical or slightly left-wing). Getting your paper into one of the few Federalist Society journals if a real pain; getting it into the Missouri Environmental Law and Policy Review (or one of its cousins) is a breeze.
Posted by: Kate Litvak | Jun 15, 2005 11:50:08 AM
By the way, I hope you all take a moment to read my forthcoming articles: "Towards a Stronger Second Amendment," "Taking Federalism Very Seriously," "Why Bush v. Gore was Rightly Decided," and "From Holmes to Cardozo to Scalia: A History of Some Great Judges."
Posted by: Kaimi | Jun 15, 2005 11:52:19 AM
Kami: I'll see you those and raise you "Law and Objectivism: The Dangers of Altruism," "National Parks Exceed the Enumerated Bounds of Congressional Power," "Why the Lemon Test Violates the First Amendment," and "Against Judges."
Posted by: Paul Gowder | Jun 15, 2005 1:43:16 PM
I wonder if the relatively small numbers of conservative/libertarian legal academics does give them some kind of net advantage in the law review article placement game. Legal scholarship is best when it has something new and important to say; it thrives on disagreement with preexisting modes of thought. If you share ideological reference points with others in your field, you are more likely to agree with existing scholarship and conclude "there is nothing left to write about." Conversely, the less you share those reference points, the more likely you are to notice something new that others are missing. This type of dynamic may explain why an unusual numer of the names on Brian Leiter's list of most-cited lawprofs who entered teaching since 1992 are generally considered right-of-center.
Posted by: Orin Kerr | Jun 15, 2005 3:30:45 PM
Lots of comments to choose from (ignoring the personal ones, that is). I will confirm that I am a desperate fool for most Philadelphia sports teams, and I'm setting myself up to have my heart broken by the Phils again this year.
Kate points out that many secondary journals are proxies for various liberal constituencies (the list made me laugh out loud). But international? Really? What about journals on legislation, regulation and technology, all of which have sprouted recently?
I think Orin makes a really good point on the mechanism of right-of-center publishing success. Additionally, I think it is probably not out of bounds to note that there have been financial incentives (Olin) to write certain kinds of pieces over the last 10-15 years.
Posted by: Dave Hoffman | Jun 15, 2005 7:53:27 PM
I heard a very well-known scholar say six years ago that the most popular pieces were pieces that used conservative tools to arrive at a liberal conclusion. I think the best example would be a law & economics piece that supported a liberal theory, or better yet an empirical piece that supported a liberal theory. I personally just write what I want to write. (Then try to game the system with my snappy title!)
Posted by: Christine Hurt | Jun 15, 2005 10:20:30 PM
(Dave: FYI: I hope my first comment wasn't read as a personal one, but a joke...)
Posted by: Paul Gowder | Jun 15, 2005 10:40:59 PM
I can say with experience that international law journals are, almost without fail, left-leaning, though of a certain sort. They are left-internationalist -- arguments about sovereignty don't get much play, neither do articles about the military. The two interesting political fault lines that run down most international law journals are (1) the WTO, which divides those in favor of international governance and free trade and those in favor of adding environmental and labor protections to those agreements, and (2) Israel, for obvious reasons. Conservative international law professors -- Jack Goldsmith, Eric Posner and John Yoo -- tend to publish in generalist law reviews, economics journals (posner esp.) and Law and Public Policy journals.
Tech journals tend to be libertarian, or libertarian-ish, with a heavy strain of Lessig-ism.
Posted by: InternationalLawJournalEditor | Jun 16, 2005 10:46:42 AM
Not to be all self-righteous, but I actually thought one's politics had something to do with one's conscience and beliefs, not with careerism?
Posted by: lawprofessor | Jun 16, 2005 2:26:44 PM
lawprof: what are, gullible or naive? :) no insult intended, i'm a bit of both myself.
As a cynic, I can with some sense of being ridiculous say: a lot of career politicians are not following their beliefs, except in so far as their beliefs include getting elected and achieving whatever they really want; to be a statesman (or statesman-wannabe); to follow in the family footsteps; to get in the history books, or whatever.
That's why we see politicians doing what McCain prefers not to do: prostituting themselves by taking the Popular or Strategic side of a question, instead of the one they honestly believe is better.
But honestly, the politics of a paper have almost nothing to do with one's own politics, unless you can't think outside your personal box. Right? I mean, my first legal academic effort was unpublishable, because I didn't bother stepping outside of very narrow box to see what the other side might think. Waste of paper, that was.
Posted by: Eh Nonymous | Aug 22, 2005 4:12:14 PM
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