Paul L. Caron

Tuesday, January 8, 2019

McGinnis: Liberal Bias Makes Law Schools Bad For Democracy

Following up on my previous posts:

John O. McGinnis (Northwestern), The Embedded Left-Liberal Assumptions of the Legal Academy:

The assumption that law schools should have a left-wing orientation is deeply problematic. Universities should have as their objective the production of knowledge, not activism. ... [D]emocratic stability is bolstered from having an engine that tries to discover truths even amidst its divisions of interest. And activism interferes with the university’s production of knowledge, because it leads directly to ideological discrimination and the erection of roadblocks of orthodoxy that impede truth seeking. To be sure, the law has a normative dimension, but norms also are a form of knowledge to which people can add and which they can refine. Thorstein Veblen thought that law schools had no more business in the university than schools of fencing, in part because they did not aim at producing knowledge. Moyn is proving him right.

The idea that law schools should steer students away from legal practice is an equally bad idea, particularly because it is bound up with another strand in Moyn’s essay—that law schools should imbue their students with a skepticism about the rule of law. This trope—drearily familiar from the critical legal studies movement—is obviously an ideological one as well. And in my view an indefensible one. To be sure, good societies have an imperfect commitment to the rule of law. But societies that lack that regulative ideal are truly dreadful ones.

Moreover, it is hardly obvious that lawyers at big law firms do not contribute more to society than cause lawyers, if one believes that the market economy does more in the long run for the poor than direct government intervention. By all means let this issue be debated, but law schools should not operate on a contrary assumption. Moreover, the contrary assumption will undermine the sense of proud professionalism that will allow many lawyers to lead happy and useful lives.

In the nineteenth century the case method was indeed the sum and substance of legal education. Now there is a welcome plurality of methods. If only there were a greater plurality of jurisprudential and political economy perspectives! Sadly, Moyn’s essay shows that left-liberalism is so ingrained in the legal academy that this kind of genuine pluralism will not appear for many generations. And that is the real problem law schools pose for the university and democracy.

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The liberal, or more accurately elitist, bias of law schools is so taken for granted that one hardly notices it anymore.

Posted by: Mike Livingston | Jan 9, 2019 4:20:42 AM

"Moreover, it is hardly obvious that lawyers at big law firms do not contribute more to society than cause lawyers, if one believes that the market economy does more in the long run for the poor than direct government intervention. "

Yes, truly the large law firms that represent banks with their boots on the throats of lower-income Americans do contribute more to society than the *cause lawyers* who protect consumers from those banks. I am not a crackpot but also guys the earth is totally a two-dimensional rhombus. IT JUST IS.


Posted by: Unemployed Northeastern | Jan 8, 2019 7:54:06 PM

The intellectual merits of flat versus graduated taxes were debated long before Blum and Kalvin, let alone Mirrlees, which really is the point. The new ideas you and the academy so impulsively celebrate are seldom actually new. Instead, they are all too typically rather ancient, all too often long-discredited, and all too inevitably dressed up in comically clumsy vocabulary. The tragedy is that today's "intellectual gymnasts" are often so ignorant that they genuinely believe that every idea that occurs to them is both ingenious and important.

Posted by: Mike Petrik | Jan 8, 2019 7:36:29 PM


Since when are the same old postmodern/critical approaches innovative? Most academic fields have moved beyond postmodernism, Marxism, and Freudianism. The true innovative approaches today are based on evolutionary biology/cognitive science.

Posted by: Scott Fruehwald | Jan 8, 2019 5:33:16 PM

Prof. McGinnis misunderstands the selection bias of higher education, including legal education. He treats liberal and conservative as symmetric, but at different ends of a single political spectrum. They are not.

Universities attract intellectuals who are willing to entertain new ways of thinking. Conservatives, by definition, are predisposed to think about things the way they have always been thought of. “Gimme that old time religion. It's good enough for me.” By this, I do not mean political conservatives; I mean intellectual conservatives. Robert Nozick, for example, was politically conservative, but intellectually innovative.

Folks who prefer traditional ways of thinking (intellectual conservatives) tend, on average, to be politically conservative as well, because traditional ways of thinking almost always favor the status quo. They often find the intellectual gymnastics required to succeed in an innovative intellectual atmosphere uncomfortable.

Folks who enjoy new ways of thinking are often politically liberal. But their willingness to entertain new ways of thinking sometimes leads them to make very politically conservative contributions. Thus, for example, James Mirrlees, a socialist, produced the intellectual foundations for the flat tax. Liberal tax academics, similarly, are in the forefront in urging abolition of the estate tax, for efficiency reasons.

The key selection bias for academics is willingness to think new thoughts – approach problems from new directions – not political orientation. The latter is somewhat correlated with the former, which is why universities, the best of which reward the thinking of new thoughts, tend to appear politically liberal.

Posted by: Theodore Seto | Jan 8, 2019 3:17:14 PM