Monday, August 25, 2014
Pity the Non-Donor
Eric Posner's recent co-authored article, An Empirical Study of Political Bias in Legal Scholarship, has attracted a good deal of attention. On his blog today, he writes an interesting follow-up, asking whether Republican law professors are cited more often than Democratic law professors and answering, "yes." He offers some speculations about why that might be. Intuitively, I tend to think the second reason he offers--"Because they must find someone to criticize in their papers, [liberal law professors] end up citing Republicans frequently. Citations by Republican law professors are divided among the larger pool of Democratic professors, so on a per capita bases the latter are less frequently cited than the former."--is more convincing than the other three possibilities he raises. But that's just intuition.
More interesting still, to me, is Posner's finding that "non-donors are cited less often than both Democrats and Republicans are." He speculates that "articles with a political bent attract a greater number of responses, and so professors who do not write them are less frequently cited." That hypothesis is quite similar, I think, to the explanation he ventures above about why Republican law professors are cited more often than Democrats.
Absent a reasonably fully specified model of what drives citations, I think it is pretty incautious to suggest that this data really tells us anything reliable at all about whether partisan affiliation is causally related to citation counts. Especially given how few republican law professors are in the study.
More generally, I am a bit puzzled by the amount of attention that the original paper seems to be getting. I greatly respect the authors, but the fundamental question the paper asks--"does legal scholarship reflect the political biases of law professors" -- doesn't seem particularly interesting to me. The reason why we care about the analogous question when asked of judges is that many people seem to sincerely believe that judges should base their opinions on "the law" as objectively understood. The professional role of the judge is to apply "the law" and not to make judgments based upon, or that reflect, the judge's partisan leanings. Political scientists have successfully attacked this "naive" view of the actual (and proper?) role of judges by demonstrating consistent statistical relationships between partisan leanings and decisions. This literature is "interesting" precisely because it purports to demonstrate that judges don't act as we normatively expect them to act in their role as judges.
But what role do we expect law professors to play? They aren't judges, they aren't writing opinions, and no one--I hope--expects them in their scholarly articles to advance arguments that reflect "objective" (or "neutral" views of "the law". (Perhaps expectations of the professor in the classroom are different; my own view is that the professor should strive in the classroom to leave his students completely confused as to where his political affiliations lay). But law professors, in their role as article-writer, are typically concerned with making an argument that the law should be understood in a particular way, not because that understanding is predetermined by the law itself, but because the professor's preferred interpretation furthers some interest that the professor values. In that way, the professor, in article-writing mode, is much more like the prosecutor or public defender; his role is to advance "his" interests, which are naturally and unsurprisingly in a vision of the content of legal rules that advance the professor's (e.g. the client's) underlying interests and values. Law professors performing traditional legal scholarship naturally view the law as instrumental, and their articles naturally advance self-interested visions of what the law "is". They are playing a role of "advocate", not as judge. This advocacy role is perfectly compatible with their other main function, which is to teach students to be advocates who advance insincere claims that the "law" is what benefits their clients. Just as it is no surprise that public defenders typically argue that the law favors the defendant, and the prosecutor the State, just so no surprise that a liberal law professor would make legal arguments that advanced a liberal set of values, and a conservative conservative values. This isn't shocking, and perhaps not even all that interesting, precisely because it doesn't contradict a widespread, fairy-tale vision of what role law professors play in our legal system.
Posted by: Jason Yackee | Aug 26, 2014 4:47:06 PM
Thanks for this interesting comment. I take no position on the empirics. I'm afraid I don't actually agree with your last paragraph. I don't think what you describe describes all forms of legal scholarship, or even that the kinds of legal scholarship that are amenable to this sort of thing necessarily must be advocacy pieces; nor does that say much, even in such cases, about what scholarly standards that piece ought to meet. And I don't say so on the supposition that what the scholar who is uninterested in advocacy as such thinks he or she is doing is saying what' the law "is" in some objective sense. Indeed, I suspect that advocacy pieces are more rather than less likely to at least claim to be saying, objectively, what the law "is." Of course our priors are influential, but not all legal scholars subordinate their academic work to those priors altogether. I acknowledge my idealism--idealism, I hope, not naïveté-- about these things, of course. Let me add, leaving my own poor work out of the equation, that even in my own heavily politicized field, some of my favorite writers are motivated most of all not by issues, but by interesting problems.
Posted by: Paul Horwitz | Aug 26, 2014 10:08:14 PM