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Friday, December 02, 2005

Schuck on Intellectual Diversity in Law Schools

Yale Law School's Professor Peter Schuck -- whose most recent book is called Meditations of a Militant Moderate -- has an essay in the latest issue of The American Lawyer called "Leftward Leaning."  According to the essay, "[t]wo recent studies reveal what the insiders have known all along: Professors at top U.S. law schools are predominantly liberal."

Now, readers of Professor Brian Leiter's blog will remember that he has expressed some caution, or even skepticism, about the "law faculties tilt left" thesis.  Still, these "recent studies" ring true to me.  In any event, here's a taste of Schuck's piece:

Elite law schools cherish robust debate, iconoclasm, and arguing issues from all sides, right? Wrong. The dirty little (not-so) secret about these faculties-that they care much more about diversifying their skin colors, genders, and surnames than about diversifying their points of view-has finally come to the attention of the general public.

Now that the truth is out, law school faculties are likely to come under increased pressure to surrender some of their hiring autonomy. But this pressure would be misguided. If these faculties know what is good for them, they will acknowledge the dearth of dissenting voices within them-and work earnestly to correct the problem from within. . . .

What, then, are the political values of law professors, and how closely do those values resemble those of the larger communities that the newly minted lawyers will enter and influence? The answer to these two questions depends on whether you believe the high-minded ideals about diversity emblazoned on the facades of university buildings, celebrated in academic ceremonies, and proclaimed in the briefs that the schools file in affirmative action and academic freedom cases-or whether you believe, instead, the empirical evidence on law faculty diversity that a few social scientists have recently developed.

James Lindgren, a lawyer/sociologist at Northwestern University, has noted that elite universities invariably claim that a diversity of viewpoints and cultures are essential to their programs, and actively seek students, faculty, and staff who share this commitment. . . .

Which groups would add the most viewpoint diversity to law school faculties? Lindgren's answer, for most faculties, is "Republicans, conservatives, and evangelical or fundamentalist Christians-none among the groups that were traditionally locked out by the United States's racist and sexist practices of discrimination." . . .  Which group is most underrepresented among professors at the top 100 law schools that Lindgren examined? White female Republicans.

Now, I'm biased:  After all, my favorite person in the world is a "white female Republican."  But I think that Lindgren and Schuck are on to something.  (It's funny:  I sometimes hear that Notre Dame is, unlike most law schools, "conservative."  I suppose this is because we have "more than one.")  So, what is to be done?  Schuck is right, I think, to express concerns about efforts to somehow require, from the outside, academic institutions to change their hiring practices.  " What can be done," Schuck asks, "to make professors practice what they preach on diversity? Alas, no easy remedy exists. The tenure system and the lack of mandatory retirement will project existing faculty bias far into the future.  Moreover, the elite schools recruit new law teachers mainly from the top ranks of their recent graduates, whose own predominantly left-liberal views are fortified by their professors.  And adopting affirmative action for conservative viewpoints would be odious and, for public law schools, almost certainly a First Amendment violation."

Posted by Rick Garnett on December 2, 2005 at 11:24 AM in Life of Law Schools | Permalink

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In my campus political journals I have specifically advocated for political affirmative action, at least at Carleton. We are an overwhelmingly liberal college, and I think that's bad for open debate and pluralism. But I offered it explicitly as a tra... [Read More]

Tracked on Dec 2, 2005 11:18:31 PM

Comments

Several of the posts in this thread characterize law and economics as a conservative field, but Prof. McGinnis's April 2005 article in the Georgetown Law Review offers evidence to the contrary:

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"And despite the perception that "law and economics" is a "conservative" discipline of legal study, politically active "law and economics" professors substantially favor Democrats in their contributions. Ironically, despite arguments that it is economically irrational to contribute in the hope of influencing an election outcome, "law and economics" professors in our survey contribute to the same degree as law professors as a whole."
***

Mr. Slater, you point out that the imbalance McGinnis and others are attempting to define and document has not been shown to harm students' education or career opportunities or legal hiring. I have not seen any evidence of that harm, although I have seen at least one argument that reinforces my intuition about the harm it does to education: There may naturally be topics liberals do not think to consider that conservatives would. NY Times columnist John Tierney pointed this out when he commented (in his Oct. 11, 2005 column in the NY Times) on the topic discussed in this thread:

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"I realize, from experience at six newspapers, that most journalists try not to impose their prejudices on their work. When I did stories whose facts challenged liberal orthodoxies, editors were glad to run them. When liberal reporters wrote stories, they tried to present the conservative perspective.

The problem isn't so much the stories that appear as the ones that no one thinks to do. Journalists naturally tend to pursue questions that interest them. So when you have a press corps that's heavily Democratic -- more than 80 percent, according to some surveys of Washington journalists -- they tend to do stories that reflect Democrats' interests.

When they see a problem, their instinct is to ask what the government can do to solve it. I once sat in on a newspaper story conference the day after an armored-car company was robbed of millions of dollars bound for banks. The first idea that came up for a follow-up story was: Does this robbery show the need for stricter regulation of armored-car companies?

We kicked this idea around until I suggested that companies in the business of transporting cash already had a fairly strong incentive not to lose it -- presumably an even stronger incentive than any government official regulating their security arrangements. That story idea died, but not the mind-set that produced it."
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Doesn't the ideological imbalance undermine the "viewpoint diversity" justification for affirmative action in hiring and admissions? If viewpoint diversity doesn't matter, and liberal law professors can teach anything conservative professors can teach, then shouldn't single-sex, single-race, majority-only faculties be able to offer as good an education as mixed faculties?

Posted by: Noah | Feb 23, 2006 3:23:57 PM

Fernando:

Quite the contrary. You're making a claim, you've provided no evidence, and saying "everybody knows" what I (and others) deny does not count as proof or even as debate. While I appreciate citations, it all comes down to a few studies that say that more professors vote/contribute to Dems. than to Repubs., at least in some departments. I still have not heard of any evidence that this has led to harms to students in law classrooms or career opportunities, or to harms in legal hiring. If this type of flimsy evidence were floated in a race or sex discrimination case by blacks or women, conservatives would be (properly) deriding it.

Posted by: Joseph Slater | Dec 5, 2005 4:37:48 PM

Joseph: I don't think we have to prove in a blog what everyone knows. This is not a court of law or a scholarly journal. You are just about the only one denying this bias, because most people (left and right)who have looked at this isue dispassionately have agreed about this. Of course there is a strong left-wing bias in all the humanities, including law teaching and research, especially in hiring. And of course law students get exposed less frequently to professors who defend a conservative or libertarian view (as opposed to quickie versions offered by the mainstream professor in order to demolish them). If you need evidence, please consult, in addition to Shuck's piece, John McGinnis' piece in the Wall Street Journal "Conservatives need not apply" (he has another, more extensively supported piece somewhere), and an article in Investor's weekly about a year ago ("Republican Professor: An oximoron). A classic locus is Robert Nozick's chapter in Socratic Puzzles. And there are of course, more stridently conservative venues who, in spite of their own biases, have most of their facts right. So the burden is on you, I fear, to show that all these people are just paranoid or mistaken.
So no denial, please. Better to say yes, there is a bias, and it's a good thing.

Posted by: Fernando Teson | Dec 5, 2005 3:29:59 PM

Brad Wendel makes excellent points in his post. I empathize, because I spent a number of years practicing on one side of the labor/employment law divide, and tend to personally sympathize with the positions of my former clients. But two things cut against classroom bias.

First, an experienced lawyer in any area of the law will know the arguments that both sides make very well. And I strongly agree that professional norms then dictate that the professor present both sides in class, and not punish/reward students for agreeing/disagreeing with the professor's private thoughts. Heck, in my experience teaching, it's great when students actually care strongly one way or another. I would much rather have an engaged student whose political instincts are different than mine than a disengaged student who might agree with me if she cared.

Second, I think that most folks who practice in an area for a given amount of time ultimately come to understand that the "other side" has arguments and interests that really are legitimate. Thus, it's harder to hold a purely ideological position that one side is always virtuous and correct about everything, and the other side is simply wrong or evil. One can still think one's own side is mostly right about most stuff most of the time on the whole, but it's a more tempered opinion.

On a different topic, I can't help noting that, despite the strong claims in some of the earlier posts, in terms of actual evidence, so far we have (i) an admission that students aren't generally punished for views that differ from their professors; (ii) no claim that students aren't actually exposed to all siginificant/plausible points of view on issues by professors they have; and (iii) no specifics on anybody in the faculty hiring process being hurt by their conservative politics.

Of course a 16-post thread on this blog isn't the be-all and end-all of evidence on the subject, but I find this is entirely consistent with every other discussion I've seen on this point (see, e.g., a long thread a while back on the Volokh Conspiracy). When you stop and look at it, there's really little to no evidence any real problem causing any real harm exists.

Posted by: Joseph Slater | Dec 5, 2005 10:44:01 AM

Re Prof. Slater's point about the bias against people who have practiced, here's what I don't understand. In the context of law prof hiring, you never hear complaints about the bias a candidate may have picked up in practice. By contrast, in the judicial confirmation process, there's endless scrutiny of the identity of a nominee's clients.

Playing devil's advocate for a minute, one might argue that I shouldn't be allowed anywhere near a torts class -- I did defense-side products liability work in practice, represented big manufacturers and insurance companies, and helped partners out with all sorts of committee work for the Nat'l Ass'n of Manufacturers, the Chamber of Commerce, etc. I actually enjoyed my work, too, and felt like by and large my clients' positions were just. Doesn't anyone worry about the danger that in the classroom I'll covertly try to win the students over to the tort reform agenda? Would I be a little too enthusiastic in defending the risk-utility test in Section 2 of the new Products Restatement? I also happen to be a Democrat. Does that mean I'll carry water for Ralph Nader? Will I be a bit too vigorous in criticizing the new Section 2, sticking up for the consumer-expectation formulation?

I think a reasonable interpretation of my evaluations for the past several years of torts classes is that my teaching is fair and balanced -- and not in the Fox News sense. If anyone worries that I'm trying to impose my beliefs on them, or working in the service of some agenda, I'm not aware of it. When it comes to previous work experience, the explanation would be that somehow I've managed to set aside my predispositions in favor of manufacturers and present the consumer-side case fairly. We're expected to be able to do that, as scholars and teachers. We don't rely on the hiring process to screen out tort reformers or consumer advocates -- rather, we rely on the fairness and professional ethics of teachers to make allowances for preexisting beliefs and biases.

For some reason the debate on *partisan* political bias in the academy seems to assume that professors can't set aside those biases, or at least they'll have a harder time doing so. I'm not a psychologist, so I have no idea whether there are categories of bias that are harder to set aside, but it seems facially plausible that it's no easier to set aside work-related biases than it is political commitments. After all, I learned a great deal about the tort system in the trenches, billing hundreds of hours to these cases, subject to all of the pressures of working in an organizational environment. I know enough about cognitive psychology to suspect that I may have picked up some biases in that environment, and may not even be aware of it. So is that less pernicious than my political commitments? I don't get why it should be, but the debate seems to concentrate only on the latter category of biases.

Posted by: Brad Wendel | Dec 5, 2005 10:07:40 AM

Lawprof:

I can't reply substantively to what you say, since you cite no examples or any other way to check what you say. I can only repeat that it's counter to my personal experience, both in my own school and what I know of others. I've never heard anyone say, "well, gosh, he has great article placements and was on law review of a top-10 school, but I hear (somehow) that's he may vote Republican, so we don't want him."

FWIW, the bias I think needs correcting the most in law school faculty hiring is prejudice against people that spent significant time in practice. But that's another story.

I would also second snowball's point: the trendiest field in legal academia these days is law & economics, which on the whole skews more right than left.

And again, whatever law profs do in the privacy of the voting booth, the important thing is what they do when they teach, grade, and advise students. And I still haven't seen or heard any evidence that there's a problem there with punishing or rewarding students for opinions, or with not exposing students to all major, respectable, and/or plausible positions on issues.

Posted by: Joseph Slater | Dec 3, 2005 10:30:04 AM

I have to chuckle when level-headed people like Rick Garnett nod along to the claim that law teaching is in the grips of the multiheaded liberal hydra. It's tripe.

Try getting a job at a top law school if your research interest is tort law from a critical legal studies perspective. OK--maybe you'll get a job, but you won't get tenure. And at any top law school today pretty much everything in the curriculum gets a dash of law and economics. Is that a predominantly left/liberal movement? Hardly. An entire generation of students has been immersed in the language of market forces, efficiency, transaction costs, welfare maximizing transactions, optimal conditions, and such like. Does that sound like the agenda of a Maoist re-education camp to anyone?

Whatever they may be outside the classroom, inside the classroom legal academics don't strive to adhere to the tenets of standard-issue knee-jerk liberalism. It isn't sufficiently contrarian to make an aspiring legal academic distinctive, and that's the attribute law faculties prize the most.

Posted by: snowball | Dec 3, 2005 12:01:54 AM

Joseph Slater:

I'm also a law professor, and also done appointments, and I've found that discrimination against conservative law professor candidates is actually pretty common. Someone who is conservative is likely to be seen as less "collegial," less of a "team player," and less "committed to the public role of the law school" than someone with left-of-center politics. The political objection generally is expressed as some kind of other objection as to what they would be like as a colleague.

Posted by: lawprof | Dec 2, 2005 11:40:08 PM

Professor Teson: Why is AA for conservatives "absurd"? I speak here as a liberal who supports AA generally. But I've advocated publicly (both on my campus and now in the blogpost trackbacked to this post) that at many schools a political affirmative action program would be sensible, desirable, and justified. I'll agree that it's a debatable point, but what makes you dismiss it out of hand?

Posted by: David Schraub | Dec 2, 2005 11:22:23 PM

The current legal education system, run by mostly "liberal" professors (or progressive or whatever you want to call it), creates the infrastructure for private, alienable property. There would be no such thing as a limited liability corporation, corporate personhood, or a contracting system that allows a "world market" without the current legal sytem [created and sustained by "liberal" (tenured!) professors]. So, if the idea is to be "progressive" or "liberal", the "liberal" conspiracy is failing miserably. It's like a play by Sophocles. Ironies abound. A General Electric (or FOX News!) exists by virtue of the legal system. As they say in the old country, killing the goose ...

Posted by: a-train | Dec 2, 2005 10:50:36 PM

I tend to think this was the best answer.

Posted by: Paul Gowder | Dec 2, 2005 7:38:55 PM

Jeff Yates,

What about talking about intellectua/viewpoint diversity "is a means of obfuscating this important underlying problem with diversity in law school hiring"? Is talking about racial diversity on faculties a means of obfuscating the problem that law professor generally tend to come from similar socioeconomic backgrounds? If the point of diversity in a professorate is to a) improve teaching by revealing to students a variety of different viewpoints on the law and b) to improve scholarship by subjecting academic ideas to the eyes of those who disagree with them, it would seem that viewpoint and economic class diversity would both be relevant. Although I'm not sure what you're "top school" point is -- would someone who grew up poor but through dint of good luck and hard work ended up at Yale Law not provide the type of diversity you are looking for? I can't see anything wrong with law school hiring committees looking to law school admission committees for relevant signals. Further, if the "top schools" do, in fact, provide a superior legal education, I can't see anything wrong with hiring committees taking this into account (whether it is the case is an empirical question to which I don't know the answer).

Posted by: BuddingProf | Dec 2, 2005 6:55:15 PM

Jeff Yates:

I agree with you 100% and think you make an extremely important point.

Fernando:

What "cost" do you claim academics who are conservative or libertarian pay in legal academia? And what evidence of that cost do you have? I have some conservative colleagues (who are quite nice) and they seem to have pretty good lives.

Posted by: Joseph Slater | Dec 2, 2005 4:32:17 PM

Of course that law students are not punished for their views. And "Affirmative action" in favor of conservatives is absurd. But there is no use in denying the cost that academics (maybe not students) with conservative or libertarian views incurs in the modern university. Other things being equal, an average academic will benefit by being left-of-center. An interesting issue is this. Schuck talks about conservatives, evangelicals, etc, he doesn't mention libertarians. Brian Leiter has suggested that libertarians tend to me more academically oriented than conservatives, etc. Maybe it would be useful to see who the bias is against, I really don't know. What I do know is that, all other things being equal, an academic suffers if he/she send the signal of being, in some relevant sense, a "right-winger."

Posted by: Fernando Teson | Dec 2, 2005 4:19:24 PM

If we are really interested in having intellectual diversity in law schools, then it seems to me that we might begin by focusing on something more fundamental than the ratio of conservatives to liberals. Given the undeniable bias toward hiring academics from a few prestigious law schools and the typical socio-economic profile of students attending those schools, it is all but assured that the vast majority of legal academics in this country emanate from the upper-middle to upper classes. The conservative/liberal bias argument appears to be more of a means of obfuscating this important underlying problem with diversity in law school hiring.

Posted by: Jeff Yates | Dec 2, 2005 3:52:32 PM

I think the pressure created merely by the growing difficulty of liberal leaning professors to influence policy debates (and score clerkships and jobs for students) is having a real impact on hiring.

For instance, look at Harvard. http://www.nyobserver.com/pageone_newsstory3.asp (ny observer story describing rightward turn in hiring).

They have managed to hire several former big shot political lawyers (Manning; Goldsmith) who are also top scholars as well as probably the best young conservative in the business (vermeule). These profs will not only improve the quality of the debate among professors, it will give hls an advantage (I think) in the clerkship/fancy washington jobs sweepstakes.

Posted by: BuddingProf | Dec 2, 2005 3:08:59 PM

It may be true that more law profs. are Dems. than are Repubs. The relevant question is to what extent this skews teaching. Any competent law prof., be s/he liberal or conservative, should expose students to competing views, challenge the views the students currently have, and teach students to how to understand and make the best arguments on both/all sides of an issue. I believe both my liberal and conservative colleagues do that.

I have seen precious little evidence that law students of any given ideological stripe are punished or rewarded for their politics. I've seen precious little evidence that conservative law students are denied access to conservative beliefs/approaches to law, or denied conduits to jobs. Speaking as the chair of my school's faculty appointments committee, I've seen zero evidence of discrimination in hiring based on ideology.

I'm sure some conservatives feel a delicious ironic frission in playing the victim-that-needs-affirmative-action card, but I don't see much of a problem that needs solving.

Posted by: Joseph Slater | Dec 2, 2005 2:39:50 PM

The fact discussed by Shcck is undeniable. Law schools (and other humanities departm,ents are worse) are notoriously lackibg in intellectual/ideological diversity. There are several explanations available. One is self-selection. The other one, propounded by Robert Nozick is that intellectuals are relatively hostile to capitalism because they resent the fact that the market does not reward academic skills like schools did. A third one, which (shameless self-promotion) Guido Pincione and I favor in our upcoming CUP book (http://www.cambridge.org/us/catalogue/catalogue.asp?isbn=0521862698) is that academics are playing a coordination game: leaning to the right carries penalties in terms of academic appointments, perquisites of various kinds, etc.

Posted by: Fernando Teson | Dec 2, 2005 1:46:06 PM

I think it's right that law schools would be better off if there were more diversity of opinion. However, creating a solution to this problem requires understanding why it exists in the first place. The assumption these writers seem to make is that law schools are only interested in hiring like-minded folks. But there's probably a self-selection issue going on as well. For example, it could be that conservatives are less likely to go into academia and more likely to seek jobs in the private sector. Or it could be the case that conservatives are deterred because they find the left-leaning tilt of the academic world unappealing. I don't think AALS keeps stats on this, but to figure it out you'd have to see how many applicants of various political stripes are out there and how they fare on the academic job market.

It's also funny to see how the responses to this issue are likely to track the political inverse of the current affirmative action debate. Conservatives are more likely to take the position that imbalance alone justifies remedial action, while liberals are more likely to claim that there's only a problem if there's active discrimination in hiring.

Posted by: Dave | Dec 2, 2005 12:39:42 PM

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