Eric Posner and Adam Chilton of the University of Chicago Law School have just posted a new working paper, “An Empirical Study of Political Bias in Legal Scholarship.” For any who have spent time in and around the legal academy, the abstract won’t contain any surprises:
Law professors routinely accuse each other of making politically biased arguments in their scholarship. They have also helped produce a large empirical literature on judicial behavior that has found that judicial opinions sometimes reflect the ideological biases of the judges who join them. Yet no one has used statistical methods to test the parallel hypothesis that legal scholarship reflects the political biases of law professors. This paper provides the results of such a test. We find that, at a statistically significant level, law professors at elite law schools who make donations to Democratic political candidates write liberal scholarship, and law professors who make donations to Republican political candidates write conservative scholarship. These findings raise questions about standards of objectivity in legal scholarship.
I can already see a lot of commentary being written on this article, and that’s a good thing. An even better thing would be for other legal scholars to probe a bit deeper by attempting to measure which areas of legal scholarship are most susceptible to political/ideological bias and which are not. (My intuition tells me that constitutional and international law will rank on top of any susceptibility list.) Though Posner and Chilton only focus on elite law faculties, it’s probably true that all law schools, regardless of their ranking, have faculty members who frequently pepper their work with political/ideological biases. In some of my own early writings on aviation law, when I was much more impressed with the “Law & Economics” movement than I am today, I committed the mortal sin of making certain papers into advocacy pieces for further liberalization of the transnational air transport market. No one chastised me for it because, to be frank, having an ideological bent is taken as a matter of fact in almost all forms of legal scholarship. In fact, to not have one would be, well, boring.
This situation shouldn’t be allowed to continue, though it’s difficult right now to conceive of how legal scholarship could become more disciplined and thus less prone to ideological taint (implicit or explicit). One potential step toward upgrading the objectivity of legal scholarship would be to move away from the current law-review model altogether whereby student editors pick their respective journal’s articles each year. A system of blind peer review — especially for elite journals — is sorely needed. More ideological diversity in law schools would probably help, too, but social conservatives and libertarians are sometimes difficult to come by. (This might change, however, if law schools, unlike other academic departments, were thought to be congenial to conservatives.) I don’t expect anything to change in the near future and the institutional resistance to change — a pathology not exclusive to legal academia — will be formidable. Still, it’s time for legal academia to grow up, even though the profession shows little desire to do so.