The organizers and supporters of the conference on "Intellectual Diversity and the Legal Academy"--the Federalist Society, Harvard Law School, and Milbank, Tweed, Hadley & McCloy LLP--deserve great credit. Law school faculties tilt heavily to the political left, (1) and there is no plausible explanation for this tilt other than discrimination against scholars who are politically incorrect. This is a serious problem for students, who do not get the full range of views in important current debates. The problem is of special concern because advocates must understand the positions of their opponents, beginning with their fundamental premises.
Some participants in the Harvard Federalist Society's conference argued that the views of the instructor are unimportant because good teachers explain both sides of each case. (2) No doubt many teachers try to do so, but, as Professor Robert George has observed, opponents usually cannot justify a viewpoint as well as its supporters can. (3) Moreover, the experience of students suggests that many instructors do not even try to give both sides. Many students say that they rarely hear conservative or libertarian viewpoints from their instructors and that, indeed, those viewpoints are often ridiculed in class. (4)
The ideological imbalance of law faculties is also a problem for legal education and legal scholarship. Our adversarial judicial system is built on the premise that the truth is best discovered through a structured contest between parties to a dispute, and the free speech commitment of the First Amendment rests in part on the belief that the truth best emerges through competition in the marketplace of ideas. (5) In law faculties, however, views are largely limited to a fairly narrow range on the left of our national political spectrum. The ideological imbalance produces a kind of partisan chain reaction or echo chamber. As Professor Cass Sunstein has noted, "When people talk to likeminded others, they tend to amplify their preexisting views, and to do so in a way that reduces their internal diversity." (6) This is not a situation that best cultivates the discovery of truth, or even an accurate understanding of contemporary reality. Academics have often failed to predict judicial decisions because they could not understand views opposed to their own. (7) Furthermore, an ideological imbalance in academia tends to perpetuate itself. "Given what we know about the psychological tendency to favor arguments that support our preexisting beliefs, concerns about political bias in the hiring process may be warranted." (8)
What should be done about this state of affairs? Unfortunately, exposing the problem will not prod law faculties to change their ways. Many legal academics claim either that the absence of conservatives and libertarians is irrelevant or that it is not a result of discrimination, or both. As long as this is the majority view, there is a limit to what can be achieved. This Essay suggests a few possibilities.
THE ASSOCIATION OF AMERICAN LAW SCHOOLS
The Association of American Law Schools (AALS) holds a unique position in higher education. (9) Although membership is not required for accreditation of a law school, the AALS works together with the American Bar Association, whose approval is necessary for accreditation. AALS membership is necessary for respectability; only a handful of strictly local schools eschew it. Thus AALS standards are de facto mandatory for serious law schools.
Although its members are schools, not scholars, the AALS also serves (in its own words) "as the academic society for law teachers." (10) There is no other umbrella organization of law scholars. The AALS has over ninety subject matter sections, which facilitate networking among scholars, and which also run programs that both offer a prestigious speaking platform for scholars and inform academics of the current thinking in their fields. (11)
None of this would be a concern if the AALS were apolitical, but it is not. Rather, it is highly and openly politically partisan. On politically contentious issues it is common for programs to include speakers from only one side of the political spectrum. (12) This may seem surprising since one might imagine that political partisans, like athletes, would want to train against the strongest possible opponents. Although many legal academics are political activists, however, they are still academics and somewhat inclined to treat the ivory tower as if it were the whole world. In this atmosphere scholarly programs often be come political rallies in which attendees congratulate each other and try to forget about the conflicting views outside.
It is ironic, then, that the AALS states that it "expects its member schools to value ... diversity of viewpoints." (13) The silver lining in this apparent juxtaposition, however, is that persuading the AALS to practice viewpoint diversity is not a question of changing its principles but simply of convincing it to live up to a principle it has already proclaimed but routinely flouts. For almost two years now I have been working with four other academics (Professors Randy Barnett, Amy Wax, James Lindgren, and Elizabeth Foley) in an effort to do just that. We managed to arrange a meeting in January 2012 with two executives of the AALS. They both seemed receptive to our concerns, but after our meeting I had very little luck with follow-up. I do not know whether we are just being led in circles, but there certainly has not been much progress.
One specific issue we raised was access to the database of the AALS's Faculty Appointments Register (FAR) for doctoral candidate James Phillips, who coauthored a paper showing the severe ideological tilt of newly hired law professors. (14) That paper drew so much fire that his co-author withdrew from the project. Phillips is continuing his work and would like to get access to the FAR for that purpose.
The AALS is refusing access, allegedly on the ground that it has promised confidentiality to applicants. The AALS's position is particularly ironic because the FAR resumes are sent to hundreds of law schools and seen by thousands of faculty members with no more guarantee of confidentiality than the AALS's own guidelines, which do not have the force of law. We have stressed that the research can be structured so as not to compromise anyone's confidentiality. The safeguards could easily be made much stronger than those in place for distributed resumes, but the AALS still refuses. Of course, access to those data could help to substantiate our claims that conservatives are discriminated against in hiring.
Our initiative has, therefore, not yet borne much fruit and reasonable observers might conclude that it is hopeless; the AALS will never abide by its own principle. If more people were involved, however, the AALS might take the initiative more...