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August 28, 2005

Are American Law Profs Too Liberal?

Am upcoming Georgetown Law Review article, previewed in the NY Times, examines political contributions by law professors at pretigious law schools and concludes that law faculties lean to the left:

The study, to be published this fall in The Georgetown Law Journal, analyzes 11 years of records reflecting federal campaign contributions by professors at the top 21 law schools as ranked by U.S. News & World Report. Almost a third of these law professors contribute to campaigns, but of them, the study finds, 81 percent who contributed $200 or more gave wholly or mostly to Democrats; 15 percent gave wholly or mostly to Republicans.

The percentages of professors contributing to Democrats were even more lopsided at some of the most prestigious schools: 91 percent at Harvard, 92 at Yale, 94 at Stanford. At the University of Virginia, on the other hand, contributions were about evenly divided between the parties. The sample sizes at some schools may be too small to allow for comparisons, though it bears noting that by this measure the University of Chicago is slightly more liberal than Berkeley.

If the liberal law professors mean to indoctrinate students, though, they have failed spectacularly in some notable cases. The United States Supreme Court's two most conservative members, Justices Antonin Scalia and Clarence Thomas, are products of Harvard and Yale, respectively. And if John G. Roberts Jr., another conservative, is confirmed this fall, another conservative graduate of Harvard Law will be added to the court.

Whatever may be said about particular schools and students, professors and deans of all political persuasions agreed that the study's general findings are undeniable.

"Academics tend to be more to the left side of the continuum," said David E. Van Zandt, dean of Northwestern's law school, where the contribution rate to Democrats was 71 percent. "It's a little worse in law school. In other disciplines, there are more objective standards for quality of work. Law schools are sort of organized in a club structure, where current members of the club pick future members of the club."

Northwestern Law professor James Lindgren, writing at Volokh, claims that his studies show how self-identification as "liberal" or "conservative" is a salient predictor of other viewpoints:

First, in my studies with the General Social Survey, political ideology is the strongest predictor of views across a range of hundreds of issues that I've looked at--stronger than race, gender, education, class, occupation, age, region, marital status, etc. Those who say that labels such as "conservative" and "liberal" are meaningless today are frankly uninformed. Most survey researchers know that these labels are quite salient.

Second, a professor at the Harvard Law School told me that in 1988 he asked every member of the Harvard Law School faculty with even a hint of conservative or Republican leanings whether they favored or had voted for Bush in 1988. Only one had (1 out of 60-80 faculty); all others favored Dukakis. He also said that in about 2 or 3 dozen entry-level faculty hires from the mid-1970s through about 3 or 4 years ago (when they hired an entry-level conservative), the Harvard Law School had not hired a single Republican.

Now consider this thought experiment: Imagine that over the same period of a quarter century, the Harvard Law School had hired at the entry-level only those who leaned Republican. Imagine how different the Harvard Law School would be, how different legal education would be, how different the government (and public policy) would be, populated with lawyers trained by an overwhelmingly Republican Harvard faculty.

Somehow I think it would be a somewhat different world.

While law school is, for most, a rigorous but expensive trade school, law faculties form opinions in young lawyers and also hold claim to speak to the public on what the academy thinks.

A GC of a public company who criticizes the Ernst v. Merck verdict, for example, is presumed to represent the views of "big corporations" when a newspaper reporter calls, but a law professor who teaches torts is presumed to speak commonly-accepted truths that are free from personal bias.

The public's inability to see the flaw in this thinking is, to an extent, a shortcoming in the public's understanding of the law and legal education. I don't know how many times non-lawyer friends and relatives have referred to a public case only to ask "can they really do that?". They look amazed when I explain that "anybody can sue anyone else for anything -- the only question is how much the parties are willing to pay in legal fees to see it through."

Much of the public seems to think that the law is a static, well-defined set of rules to be navigatived by lawyers who know what those rules are. Most lawyers, however, know better that the law is fluid and dynamic, capable of suprising reversals, and more susceptible to guesswork than to definitive answers. Legal rules -- some in harmony and some in conflict -- represent potential points of leverage in disputes between parties, rather than fixed points of universal understanding.

(One might argue this is not as it should be, but I think most will agree this is how it is.)

In another vein, the failure to see the relevance of professorial bias is a shortcoming in the popular media's ability to report on legal subjects. Too much reporting on legal topics is done with only a superficial view of the legal issues.

Writing on the Supreme Court's decision in State Farm v. Campbell, for example, it is far easier for a reporter to claim that the case represents the "big business" sympathies of conservative Justices than it is to explain how Justice Kennedy's idea of substantive due process differs from that of Justices Scalia and Thomas. (Readers of this column will know that all three Justices were nominated by Republican presidents, and yet Justice Kennedy wrote the majority opinion in State Farm v. Campbell, while Justices Scalia and Thomas dissented).

Ignoring the bias of faculty members, when those faculty members are predominantly liberal, gives their particular worldview a veneer of objectivity that is unwarranted.

Posted by Jonathan B. Wilson at 03:02 PM | TrackBack (0)




Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.