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?