The governance model that has led to this dysfunction in legal education must be replaced.
Ten years ago, when I started teaching and writing in law and religion, I noticed an interesting thing. When I told people, particularly in a professional setting, about my area of scholarly interest, I often received a puzzled, wary question: “What makes you interested in that”? No one had ever asked me such a question in the early part of my career, when I wrote about contract law, statutory interpretation, and international trade. In those days, people would nod absent-mindedly when I told them about my work. Such subjects were taken as a given, I suppose. They were the sort of things in which law professors naturally would take an interest.
Law and religion was different. I didn’t usually perceive hostility in the questions (though once at a conference, a professor from a foreign university whom I had just met, upon hearing my scholarly interest, launched into a denunciation of accommodations for religious believers in his country, a subject on which I had not expressed an opinion). But I detected, as I say, a puzzlement and a wariness, as though I had unintentionally, and perhaps unwisely, revealed something about myself. For a law professor to take an interest in religion was unusual and a bit unsettling. It was something one had to explain.
One’s scholarly interests typically reflect a variety of factors, professional and personal. When I got my first law school job, my dean said I could teach either contracts or property. I picked the former, and I have been teaching contracts ever since. I wrote about statutory interpretation and international trade at the start of my academic career because my practice as a young attorney with the Justice Department had focused on those matters and the subjects were familiar to me.
I switched to law and religion later, for more personal reasons. Midway in the journey of our life, I received chrismation and became an Orthodox Christian. I grew active in my church and thought I should try to integrate my professional and personal commitments. I proposed an academic center on law and religion at my new institution, which eagerly embraced the idea. The center celebrates its tenth anniversary this year.
The Rarity of Faith
My interlocutors were right, therefore, to suspect that some personal motivation lay behind my interest in law and religion. They were right, too, that my motivation was unusual. Northwestern Law Professor James Lindgren has published a survey revealing that religious commitments are comparatively rare on American law faculties. “Even compared to other professors,” he writes, “law professors are much less religious.” About 40 percent of law professors, according to Lindgren’s survey, are atheists or agnostics. (The percentage of atheists and agnostics may be even higher among elite law professors). Among Americans with graduate or professional degrees, by contrast, the percentage of atheists and agnostics is substantially lower, only 15 percent. Law professors are also “less likely to attend religious services than their non-professorial counterparts,” Lindgren writes.
Lindgren writes that Christians, specifically, are “underrepresented” on law faculties, compared to the general population. About 75 percent of Americans are Christians of some kind; less than 40 percent of law professors are. By contrast, Nones are highly “overrepresented.” About 20% of Americans say they have no religious identity; among law professors, the percentage is almost double that, about 37 percent. Non-Christian religions—Buddhism, Hinduism, Islam, Judaism, etc.—are also “overrepresented” in the legal academy, he says, compared to their numbers in the general population.
One must take such surveys with a grain of salt. Lindgren concedes that he only had an 11 percent response rate—“fairly low for an academic survey,” though still “higher than most public opinion polls.” And there’s no reason, necessarily, why faculties should reflect the distribution of religious belief in the general population. But if Lindgren’s numbers are in the ballpark, they are very interesting, and they raise three questions: first, how has this situation come about; second, does the comparative underrepresentation of religious believers in the American legal academy make any difference; and, third, what, if anything, should be done?
I can’t address these questions fully here, but let me make a start. As to the first question, Lindgren writes, “the numbers are stark enough to suggest at least some degree of systematic discrimination” in hiring and promotion, though he notes that “only a relatively small percentage of law professors report that they have experienced religious discrimination in doing or seeking their jobs.” Intentional discrimination may explain part of what’s going on, but subconscious bias likely has a greater role in the underrepresentation of religious believers on American law faculties. (I don’t know enough about anti-discrimination law to say whether such bias would be actionable, though I doubt it). More than people realize, faculties are clubs that tend to self-replicate. Professors naturally hire and promote colleagues who resemble themselves in terms of demographics, educational background, and, especially, worldview. Indeed, human nature being what it is, professors often see such resemblances as neutral job qualifications. The fewer religious believers there are on a faculty, the fewer there will be in the future.
One intriguing possibility has to do with politics. Religion need not be politically conservative, of course, and a “Religious Left” exists in America. But surveys consistently show that people with strong religious commitments tend to identify with the Republican Party, while Nones and secular Americans tend to identify with the Democrats. (The numbers may well differ for some groups, like African Americans, a question that deserves greater study). Scholars like John McGinnis and others have shown that Democrats and progressives overwhelmingly predominate on law faculties, and it would be surprising if this fact didn’t have an impact on hiring and promotion decisions, especially the former. If faculties perceive religious belief as a proxy for conservative views, especially on social issues, that could help explain why religious believers are underrepresented on law faculties.
What Gets Left Out
The answer to the second question is clearer. The comparative absence of religious believers makes a profound difference in American legal education. To be sure, with respect to some legal questions, religion is not especially relevant. Piety wouldn’t change one’s reading of the Federal Rules of Civil Procedure. And law professors have an obligation to teach our students the nuts and bolts of legal doctrine as it is.
But religious perspectives would enrich our discussion of law and offer our students perspectives they currently lack. For example, centuries of Christian reflection exist on many legal questions, in areas as diverse as contracts, criminal law, torts, property, legal ethics, and, of course, church and state. Few American law professors think to ask, though, what Christian learning has to say about these questions, and doing so would not be a good career move. With a few notable exceptions, elite law reviews have little interest in articles exploring Christian ideas about law, especially ideas that seem to align with a politically conservative perspective. Indeed, one recent study argues that articles that portray religion in a positive light tend to appear in less prestigious journals than articles that portray religion more negatively. For law professors to get their ideas heard, they must make themselves “part of the conversation,” and writing about religious perspectives is not a good way to do that.
The Relevance of Religion
This is not to say that law professors deliberately discriminate against religious perspectives, though surely some do. Rather, law professors take it as a given that such perspectives have little useful to offer. Ever since Langdell transformed it in the 1870s, American legal education has been resolutely secular. Notwithstanding Holmes’s jibe that he was the world’s greatest living legal theologian, Langdell famously excluded metaphysical explanations in order to focus on positive case law. His successors deride Langdell as reductive, but retain his concept of law as a social construct to which religious concerns and critiques are irrelevant at best. A century-and-a-half later, religion remains absent from American legal education, except in small pockets like jurisprudence courses or other specialized offerings. It would take a lot to change that.
This leads to the third question: what, if anything, should be done? Law schools could do more to seek out and promote candidates who bring religious perspectives to their work and teaching—something that would be entirely consistent with the laudable goal of increasing the representation of ethnic and racial minorities on law school faculties. I doubt such an effort will be forthcoming, though. For the reasons I’ve explained, most law professors see religious perspectives as irrelevant to their work and don’t perceive their absence as a serious problem. This is true even at law schools with religious affiliations—again, with some notable exceptions. Besides, increasing ideological diversity and inclusiveness is not a priority for most law faculties.
This is a pity, because religious perspectives on law would offer much to our students. It is not simply a matter of knowing the historical foundations of our laws or appreciating the critiques of the past. Religious perspectives would offer students insights into current legal controversies. For example, in America today, we are debating whether the state may constitutionally order churches to close during an epidemic. In legal terms, the cases often turn on a balancing test, in which courts weigh the government’s interest in curtailing an epidemic against the burden that closure imposes on the practice of religion. To understand the cases, students need to hear, not only the secular perspectives of most law professors, but the perspectives of people inside faith communities, who can explain why believers find orders to close such an imposition. The comparative absence of religious law professors makes it less likely students will hear both sides.
As for me, I can only say this. When I first became interested in law and religion, a colleague at another school, referring to the legal academy’s lack of interest in the sort of work I proposed to pursue, encouraged me, half-jokingly, to have the courage to be “useless.” Ten years later, I can’t say how successful I’ve been. But I’m doing my best.