Imagine arriving in the United States in the 1950s. You know nothing about this country's past or present. You fall in love with baseball and attend numerous major league games, observing that there are very few black players. You hypothesize it could be for one of several reasons. Maybe black players are generally not as good as white players, so very few can make it to the elite levels of the game. But you would soon realize that the few black players on each team are talented--far better than the average white player. In fact, you would not know it at the time, but most of these black players would become Hall of Famers. A lack of ability does not explain their scarcity.
So maybe they are good enough but are interested in other sports or in doing something else entirely, so very few try to make it to the big leagues. But then you would see the hundreds of professional black players in the all-black leagues and would come to learn that baseball is the dominant sport in America for all segments of the population, with black children playing it much more than football or basketball. So it does not appear to be a lack of desire. That leaves one other explanation. Black players appear to be good enough, and appear to want to play in the major leagues, but very few do. It must be discrimination, you might think. (1) And you would have been correct.
Now, change eras and professions. There are very few conservative or libertarian law professors. They are the snail darter or great homed owl of the legal academy. But their numbers, while low, are stable, due in part to outliers like George Mason or Pepperdine where they are a majority of the faculty. Outside of such places, however, their numbers at any given faculty can usually be counted on one hand. Why? Maybe they are not good enough. Or maybe they are not interested in the life of the mind or are more interested in making money. These three explanations--what I call the Brainpower, Interest, and Greed Hypotheses--are not unique to law schools. Similar explanations are put forth for the scarcity of conservatives and libertarians in the social sciences. In attempting to explain the phenomena in the social sciences, one Harvard psychologist summarized these three hypotheses in one succinct sentence: "Liberals may be more interested in new ideas, more willing to work for peanuts, or just more intelligent." (2) Interestingly, women and racial and ethnic minorities also seem to be underrepresented on American law faculties. The reason must be the same, right? Paul Bloom, a Yale psychologist, notes: "There's often a lot of irony in this area. The same people who are exquisitely sensitive to discrimination in other areas are often violently antagonistic when it comes to political orientation, bringing up cliched arguments that they wouldn't accept in other domains: 'They aren't smart enough.' 'They don't want to be in the field.'" (3)
A journalist personally described a similar trend:
I have had the following experience more than once: I am speaking with a professional academic who is a liberal. The subject of the underrepresentation of conservatives in academia comes up. My interlocutor admits that this is indeed a reality, but says the reason why conservatives are underrepresented in academia is because they don't want to be there, or they're just not smart enough to cut it. I say: "That's interesting. For which other underrepresented groups do you think that's true." An uncomfortable silence follows. (4) This Article explores one of these hypotheses: the Brainpower Hypothesis. This is explored using a unique dataset on publishing patterns amongst law professors at the top sixteen law schools in the country. (5) Findings from this data call into question the seemingly glib justifications that conservatives and libertarians are not able to compete with their peers.
This Article will proceed as follows: Part I lays out the background. Part II explains the dataset and methodology. Part III provides analysis, commentary, and caveats. Part IV discusses potential negative side effects of the low numbers of conservatives and libertarians in legal academia.
For some time now, scholars have documented not only the dearth of conservatives and libertarians on law school faculties but also the overall lack of diversity on many dimensions.
Studies of the General Lack of Diversity in the Legal Academy
The first major empirical study of the American law professoriate was done in 1980 by Donna Fossum. (6) Fossum found that nearly a third of all law professors had received their J.D. degrees from one of five schools--Harvard, Yale, Columbia, Michigan, and Chicago--and that another quarter came from just fifteen other schools. (7) Including professors with LL.M. degrees from one of these twenty institutions, Fossum found that a full 74% of law professors were produced by these feeder institutions, leading her to question whether "it is wise that the power to produce the legal profession's 'gatekeepers' rests so completely in the hands of a few elite law schools." (8) The American Bar Association commented when Fossum's work was released that "[w]ere we biologists studying inbreeding, we might predict that successive generations of imbeciles would be produced by such a system." (9) Fossum also noted that women made up just 13% of law school faculties at the time. (10)
Eleven years later Borthwick and Schau's study concluded that the "path to legal academia continues to be a narrow one," (11) and their findings were quite similar to Fossum's: one-third of professors in their sample received law degrees from Harvard, Yale, Columbia, Michigan, or Chicago, and 60% of their sample had J.D.s from one of the top twenty law schools. (12) However, women fared slightly better, comprising 20% of their sample. (13) Borthwick and Schau also identified two important hiring effects: clerkships and graduate degrees. Finding that almost 30% of new professors had clerked, the authors concluded that "judicial clerkships have emerged as a major way station on the path to a career in the legal teaching profession." (14) Furthermore, advanced degrees became more prevalent with 23% of professors holding LL.M.s, 17% having Master's degrees in non-law areas, and 5% having obtained Ph.D.s. (15)
Richard Redding's 2003 study sampled tenure-track new hires from 1996-2000. (16) He found that inbreeding had become more severe, with 33% of professors obtaining their law degrees from either Harvard or Yale, 66% from the top twelve schools, and 86% from the top twenty-five schools. (17) This led Redding to conclude that "[i]t may be a de facto prerequisite for a faculty appointment to have graduated from a top law school, for almost all law professors have done so." (18) Gender and racial equality had increased, with 43% of the new hires being women, and 30% of new law professors coming from ethnic or racial minorities. (19) Also, the importance of clerking continued to grow, with 57% of new hires having had such an experience. (20) Redding also noted a change in trends regarding advanced degrees, with LL.M.s and Master's degrees being held by only 13% and 16% of the sample respectively, but the percentage of Ph.D.-holding new hires having doubled from Borthwick and Schau's study to 10%. (21) Emerging as a trend in new law professor backgrounds was prior teaching experience (37%), including time as a visiting assistant professor of law (or VAP, 16%). (22)
More recently, Katz et al.'s 2010 social network analysis of the American law professoriate similarly finds a pattern of inbreeding characterized by "an extremely skewed distribution of social authority--even more than is present in other intellectual disciplines in the social sciences." (23) Additionally, George and Yoon have found that law schools have "continu[ed] to hire tenure-track professors who share the same credentials and experiences as tenured faculty ...," (24) Thus George and Yoon determined that for the 2007-2008 hiring cycle, what mattered was attending Yale, Harvard, or Stanford; having publication in top law journals; having a clerkship; having a post-JD teaching fellowship; and not having been out of law school for a decade or more. (25)
Finally, McCrary et al. recently looked at the pool of law professors at the top thirty-four law schools in the country as of 2011. (26) They found faculties to be overwhelming male and white, with 41% holding J.D.s from Harvard or Yale. (27) Over a quarter had Ph.D.s, and more than half had clerked and served on law reviews. (28) While these studies throughly focused on gender, racial, and intellectual diversity (the latter dealing with the area of law professors' Ph.D.s), political diversity was not explored. Other new studies bemoaning the lack of diversity in the legal academy have likewise...