Toward Improved Intellectual Diversity in Law Schools
Dent, George W., Jr., Harvard Journal of Law & Public Policy
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.
I. 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. …