Causes and Consequences of the Legal Academy’s Lack of Political Diversity

The Harvard Crimson reports that 98 percent of political donations made by the Harvard Law School faculty goes to Democrats. This disproportion suggests that the lack of political diversity at elite law schools is no better than when I reported on it in my own study ten years ago. As the Anglican church was said to be the Tory party at prayer in nineteenth century England, the legal academy today remains the Democratic party at play.

Already comments dismissing the import of the study are to be found on the internet, such as the observation that the donations at Koch Industries may be similarly one-sided. That misses the point. The concern is not about the political donations per se, but that their distribution suggests that intellectual atmosphere at schools like HLS is politically insular. Lawyers, as  Alexis De Tocqueville said, are the political aristocrats of American society, and our elite law schools importantly shape their education. Moreover, law school professors play a large role in the production of new legal ideas and reforms.

There are, no doubt, many reasons for such gross ideological imbalance.  One that is little discussed is network effects. It is quite rational to adopt the predominant views of one’s faculty and one’s academic profession for both professional and personal reasons. First, in much of academia, it is very hard to judge the absolute quality of the output. In the absence of a market test, as in business, academic scholarship may be judged more subjectively for the purposes of hiring, tenure, and promotion.  Why take a chance that one’s colleagues might discount work by someone not in line  with their views?  Second, in an increasingly partisan world, social relations are made smoother by falling in with the party line of colleagues. Academia has some aspects of an exclusive club, and it is most useful to be a clubbable man or woman.

The dramatic political imbalance creates two different sets of losers.  Left-liberal students are worse off, because their views are less likely to be challenged by an overwhelmingly left-liberal faculty. Being forced to defend one’s deepest convictions improves legal and intellectual skills. The second loss accrues to society because of weaker competition in the market for academic ideas.  A predominantly left-liberal academy is unlikely to develop ideas on the right side of the political spectrum.  At the same time, its professor are likely to be less inclined to push back on ideas with which they largely agree.  The result is a weaker, less diverse set of proposals on the intellectual shelf for policymakers to use.    To be sure, think tanks take up some of the slack, but academics do have an advantage in standing outside the immediate hurly-burly of politics. They can offer policies that may be currently impossible to enact, but nevertheless set an innovative agenda for the future.