American Constitution Society (ACS), Federalist Society, Law Schools, Politics

Liberal Bias in Legal Education: Does it Exist? Does it Matter? An ATL Debate

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. The National Law Journal reports:

Law schools hire more openly liberal professors than openly conservative ones, but the plum jobs at the most prestigious schools don’t appear to be going solely to the liberals.

That’s the conclusion reached by researchers from the University of California, Berkeley School of Law who analyzed the ideology of recently hired law professors. Their study, “Ideological Diversity and Law School Hiring,” is the first to focus specifically on the political leanings of law professors.

Previous research concluded that law professors skew white and male, and tend to have completed their legal studies at top law schools.

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?

This sounds like an appropriate moment for an Above the Law debate. Editors David Lat and Elie Mystal sound off about whether law schools need to be more welcoming to conservatives. As always, we welcome your opinions in the comments….

ELIE MYSTAL

Conservative law profs to affirmative action! Mwahahahaha. Only now, at the end, do you see the true power of “diversity.”

Oh, I kid, conservative law professors — but can’t we all get along? You guys have Chicago, we have Yale, I thought you guys were fans of “separate but equal.”

Look, I think the reason this study looks so striking is because conservative law professors don’t self-identify as easily and readily as the liberal ones do. I think there are a number of reasons for this. We’re talking about intelligent people, and intelligent people generally don’t want to be associated with the party of the Glenn Becks of the world. Think about it: if somebody tells you they are “conservative,” don’t you immediately want to know if they hate blacks, gays, Mexicans, Muslims, or women? Are they a Birther, or a Tea Partier, or do they masturbate to Sarah Palin?

That’s a lot to answer for before you can even get “limited government” out of your mouth.

If you say “I’m a liberal,” what do you get, really? “Are you a communist?” Uh, no. “How maybe babies have you killed today?” I don’t know; how many genetic diseases did you try to cure this morning?

If conservatives felt more comfortable self-identifying as such, I’m sure the results wouldn’t seem so one-sided. There are a lot of conservative professors teaching in law schools, and a lot of conservative concepts transmitted to students. Don’t believe me? Have you ever heard of B>PL? Law and Economics? What, you think a liberal came up with that?

We know that law professors tend to list left at the voting booth, but that has more to do with social policies. Core conservative values about the rule of law, the importance of tradition (stare decisis anyone?), and the deliberate, incremental pace of change are concepts that are alive and well at the nation’s law schools.

Trust me. Try (as I did) writing exams in law school attacking stare decisis, railing against the “assault” of economics on our legal system, or stating that without universal health care, American tort law is just a small tax we ask corporations to pay for their right to do whatever the hell they want at the cost of however many lives they’re willing to pay for. Try it, watch the B’s roll in, and then tell me that there is no home for conservatives at law school.

What is obvious, however, is that on the social policies, the conservative voice is drowned out at many if not most law schools. And that’s not a good thing. Diversity of thought is important generally, but it is absolutely crucial at an institution of higher education.

Just know that the people drowning out the conservative social voice aren’t just the liberals. The core conservative message also gets appropriated, twisted, and mangled by far right. There’s a valuable competing idea about tax policy in this country, but the Tea Party isn’t articulating it. There’s a way to discuss the pros and cons of affirmative action that doesn’t devolve into racial prejudice about genetic capabilities like we saw from Crimson DNA. Reasonable people can disagree about the First, Second, Fourth and Fifth Amendments without name calling. Lat and I do it all the time here in the Breaking Media offices.

So would the real conservatives please stand up? There are more of you out there than this study would have us believe. And if conservatives and liberals of conscience can stand up together against the fringe crazies on both sides, I think the goals of balanced education will be well-served.

DAVID LAT

Since this has been styled a “debate,” I will assume my assigned role. I was vice-president of the Yale Federalist Society when I was in law school, and I’m also the resident right-of-center voice here at Above the Law, so I’m used to playing the conservative role (or perhaps I should say “non-liberal,” since I’m really more of a libertarian).

Of course there is liberal bias in legal education. And of course it matters. We really didn’t need a study to tell us this. The problem actually extends well beyond law schools. There’s a bias against conservatives in academia generally. Notes Ross Douthat, the resident conservative in the New York Times editorial pages:

[A recent] provides statistical confirmation for what alumni of highly selective universities already know. The most underrepresented groups on elite campuses often aren’t racial minorities; they’re working-class whites (and white Christians in particular) from conservative states and regions. Inevitably, the same underrepresentation persists in the elite professional ranks these campuses feed into: in law and philanthropy, finance and academia, the media and the arts.

This breeds paranoia, among elite and non-elites alike. Among the white working class, increasingly the most reliable Republican constituency, alienation from the American meritocracy fuels the kind of racially tinged conspiracy theories that Beck and others have exploited — that Barack Obama is a foreign-born Marxist hand-picked by a shadowy liberal cabal, that a Wall Street-Washington axis wants to flood the country with third world immigrants, and so forth.

(You see some of these paranoid conservatives — or liberal trolls masking as paranoid conservatives? — in the Above the Law comments section.)

So let’s look at law schools. The study merely confirms what we already know: non-liberals, i.e., conservative and libertarian types, are severely underrepresented in legal academia. According to the Berkeley study, among entry-level, tenure-track hires, clear liberals outnumber clear conservatives by a ratio of over 5 to 1 (52 liberals to 8 conservatives).

This comports generally with my own (admitted anecdotal) experience. I speak regularly at law schools, sometimes at the invitation of Federalist Society chapters, and I often dine with Fed Soc officers after the event. I typically ask how many of their law school faculty members are conservative or libertarian. A common response: laughter, followed by a tentative guess of “two or three?” (one of whom is usually the Fed Soc faculty adviser).

And of course liberal bias matters. How much it matters varies from subject to subject; constitutional law is more ideological than, say, trusts and estates. But in numerous subjects where ideology makes a difference, law students — i.e., the future lawyers of America — are often getting only one side of the story, or, at the very least, a somewhat skewed view of the world. Political orientation can and surely does come into play in the teaching of numerous law school classes, from con law to criminal procedure to bankruptcy to tax.

To be sure, a good law professor makes sure that many different viewpoints are represented in class. But as anyone who has set foot in an American law school knows, not all law profs are “good” — and many are very self-indulgent. They would much rather teach their own pet theory about the law should be, as opposed to what the law actually is.

The impact of political bias is probably even greater today than it was, say, a few decades ago. Law schools today place a much greater emphasis on policy considerations and their role in the law than law schools in years past. As legal academia moves towards public policy and away from black-letter law — which tends to be relatively non-ideological, but which many law professors view with disdain, especially at highly-ranked schools — the problem of liberal bias is magnified. (To those of you have studied or are currently studying for the bar exam, compare your Bar/Bri or PMBR experience to a typical law school class — which is more political?)

What is the result of this liberal bias? For starters, lawyers who aren’t as well-trained. If you haven’t been adequately exposed to both sides of a given issue or debate, you won’t be able to advance your client’s position as effectively. This is especially true when you’re trying to advance a position to judges who are more conservative than your law school professors — e.g., most federal judges appointed by Republican presidents, or state-court judges in relatively conservative jurisdictions.

Law school is professional school, so if ideological bias makes you less effective at your profession, that’s a huge problem. But the liberal slant of legal academia has other consequences too. It makes for worse citizens, who haven’t thought as deeply as possible about the major issues of the day, because they went to school with students and professors who agreed with them on pretty much everything. It contributes to a problem that Justice Antonin Scalia and others have noted, namely, the perpetuation of a liberal elite within the law. Many of these elites go on to become law professors, where they continue their brainwashing perpetuate the problem of liberal bias in the academy, or to become judges, where they damage democracy through judicial activism.

Okay, okay, now I’m getting carried away… let me stop here, and close with some areas where I agree with liberal friend Elie. I agree that the Berkeley study could potentially overstate the problem of liberal bias, since “conservative law professors don’t self-identify as easily and readily as the liberal ones do.” In fact, I know of a number of young law professors who are “in the closet” about their right-leaning views; they’re waiting until they get tenure before they speak more freely.

And I agree that there are ways of arguing intelligently about the issues without descending into vitriol and name-calling. The good news is that, despite the aforementioned problem of left-wing bias, American law schools are fairly good about promoting civil and informed discourse — or at least better than, say, cable news or the political blogosphere. (This is in large part thanks to organizations like the Federalist Society and the American Constitution Society, which host events at which different points of view are represented.)

When it comes to liberal bias in American law schools, the words of the G.I. Joe PSAs ring true: “Now you know, and knowing is half the battle.” If law professors and students remain aware of the problem of total left-wing domination ideological bias in the legal academy, and if they do their best to combat it and approach issues with an open mind, then we can take back America get things moving in the right direction.

Study: Law School Hiring Skews Liberal, but Liberals Don’t Get All the Key Jobs
[National Law Journal]
The Roots of White Anxiety [New York Times]

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