Professors at law schools are overwhelming left-liberal, as I made clear in a 2005 study published in the Georgetown Law Review. Just as it was said in the late nineteenth century that the Anglican Church was the Conservative Party at prayer, our law schools today are the Democratic Party at the podium. The hard resulting policy question is whether law schools should adopt affirmative action for libertarians and conservatives to foster the debate that should inform legal subjects with a substantial political valence.
While I have not supported preferences of this kind, the strongest arguments in their favor are the existence of preferential policies in favor of race, gender, and ethnicity that are themselves justified as a way of creating a fuller debate. Indeed, one particularly powerful point—rarely if ever made made—is that the widespread intentional discrimination in favor of certain preferred groups in faculty hiring has a disparate impact on conservative and libertarians and reduces their presence at law schools. That is, since minority and female law professors are likely to be even more left-liberal than white males, the routine diversity policies of law schools decrease the number of conservatives and libertarians compared to a baseline of purely merit selection.
A new study of the ideological imbalance in the legal academy, The Legal Academy’s Ideological Uniformity, provides hard statistical support for this proposition. It shows that minority and female faculty members are indeed substantially more likely to be left-liberal than white males and be even more left-wing. Racial and gender diversity does reduce ideological diversity.
Almost seventy years ago, C.P. Snow famously warned of a split between two cultures in our universities and society. The first was the scientific culture marked by rigorous modeling and empirical methods. That culture itself divided into defined specialties. The second was humanistic culture marked by a focus on rhetoric and the evaluation of ways of life. That culture was less specialized because it wanted to try to answer some of the great human questions that knew no boundaries.
Snow oddly enough left out the social sciences in general from his schema and law in particular, although the protagonist of his most famous novel, The Masters, was an academic lawyer. But that same cultural divide replicates itself in many of the social sciences and especially on top law schools faculties today. One kind of legal academic is scientific, concerned with models and empiricism. Those working on this side have defined methods—well cultivated gardens of the intellect. And this scholarship tends to be positive, looking at how the world is rather how it should be. The humanistic kind of scholarship is more discursive, sometimes of a bit of jumble. It is less specialized and tends to the normative.
Snow worried that the loss of a common culture would create cliques within universities and make it harder to solve social problems. Neither technocracy nor the refinement of moral ideals suffices to improve the world.
My last post suggested that the decline in law students was due in large part to a technological shock that has decreased demand for lawyers, at least at the price point law schools are producing them. Law schools need to respond. They must shape a curriculum that will prepare their students for the world of growing machine intelligence that was responsible for the shock. They also need to generate income from other programs to replace the law students who will not be returning.
In the coming age of law and computation lawyers will do better in fast-changing and high value areas. Machine intelligence succeeds through pattern recognition; in narrow, fast-changing areas, it has less data and thus fewer opportunities to identify promising correlations. In such areas, lawyers will have room to craft intuitively appealing arguments to regulators and courts. And when the transaction are of high value, even if machines are helpful in generating documents and precedent, human creativity will continue to add value.
Regulatory areas, particularly financial ones, are appropriate areas for more courses.
Law schools have suffered a precipitous drop in applications in the last six years—the largest decline in decades. To assess whether this decline will continue and to determine the response, legal educators must first figure out the causes of the decline. Here are the three most plausible causes in ascending order of the threat that they pose to incumbents in legal education. The first is the Great Recession: law schools have declined because of a decrease in the demand for legal services caused by the Great Recession. The second is the existence of a lawyer bubble: law schools previously produced too many lawyers and there is overhang of supply that makes new lawyers less necessary. The third is structural: law has faced a technological shock, which has depressed the demand for lawyers and/or their income.
It seems quite clear now that Great Recession cannot be assigned a primary role.