Paul L. Caron

Thursday, August 11, 2022

What Do Law Professors Believe About Law And The Legal Academy?

Eric Martínez (Graduate Student, MIT) & Kevin Tobia (Georgetown; Google Scholar), What Do Law Professors Believe about Law and the Legal Academy? An Empirical Inquiry:

Legal theorists seek to persuade other jurists of certain theories: Textualism or purposivism; formalism or realism; natural law theory or positivism; prison reform or abolition; universal or particular human rights? Despite voluminous literature about these debates, tremendous uncertainty remains about which views experts endorse. This Article presents the first-ever empirical study of American law professors about legal theory questions. A novel dataset of over six hundred law professors reveals expert consensus and dissensus about dozens of longstanding legal theory debates.

Law professors also debate questions about the nature of the legal academy. Descriptively, which subjects (e.g. constitutional law) and methods (e.g. law & economics) are most central within the legal academy today? And prescriptively, should today’s legal academy prioritize additional areas (e.g. legislation) or methods (e.g. critical race theory)? There is great interest in these questions but no empirical dataset of experts’ views; this results in uncertainty about which views experts endorse. This Article’s empirical study also clarifies these questions, documenting law professors’ evaluation of over one-hundred areas of law.

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The legal theory and legal academy findings support implications for legal scholarship, education, and practice. Clearly, debates about law and the legal academy’s evolution should not be settled by a survey. Nevertheless, insofar as law professors are experts about these issues, it is instructive to discover and carefully examine what views those experts hold, so as to help determine which views are most likely to be true and how the legal academy ought to develop.

Update:  Ilya Somin (George Mason), What Law Professors Think About Legal Issues - and Why it Matters:

Tobia's and Martinez's (TM) findings on the views of law professors are potentially significant. When it comes to their general political orientation, lawprofs are overwhelmingly on the left. TM's survey results shows that 81% of their sample of lawprofs at top 20 schools (as ranked by US News) identify as "liberal" compared to 12% who are "middle of the road" and 7% "conservative." Indeed, "conservatives" of all stripes are heavily outnumbered just by the 22% who identify as "very liberal." The sample of professors at top 50 schools not in the top 20, is only slightly less liberal (72% liberal, 14% middle of the road, 12% conservative).

This result is consistent with previous studies of law professor ideology. But TM's data is more recent and more comprehensive. In addition, because it was produced by scholars who are themselves on the left, it is hard to dismiss as just self-interested griping by conservatives.

An ideological imbalance this great is significant, and likely has at least some skewing effect on research and teaching. That's true even if the imbalance is not due to discrimination in hiring (though evidence suggests some probably is). To be clear, I do not claim that law faculties' ideological balance should "look like America" or that such a result would be achieved if only there were no discrimination in hiring. We don't need the former, and the latter almost certainly isn't true. But, for a variety of reasons, it would be better if the ideological skew were not as great as it currently is. For example, much social science research indicates that ideological homogeneity in groups accentuates various cognitive biases and inhibits the pursuit of truth.

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