Is legal scholarship politically biased?

My colleagues Eric Posner and Adam Chilton have posted a new paper: An Empirical Study of Political Bias in Legal Scholarship. The paper is short and the findings are interesting. Here’s the abstract:

Law professors routinely accuse each other of making politically biased arguments in their scholarship. They have also helped produce a large empirical literature on judicial behavior that has found that judicial opinions sometimes reflect the ideological biases of the judges who join them. Yet no one has used statistical methods to test the parallel hypothesis that legal scholarship reflects the political biases of law professors. This paper provides the results of such a test. We find that, at a statistically significant level, law professors at elite law schools who make donations to Democratic political candidates write liberal scholarship, and law professors who make donations to Republican political candidates write conservative scholarship. These findings raise questions about standards of objectivity in legal scholarship.

I have my own reservations about the Segal/Spaeth method of coding ideology, but I will put them aside for now. Posner and Chilton are admirably agnostic about the question of causation. They entertain the possibility that legal scholarship is substantively biased, but also the possibility that causation runs the other way round. For what it’s worth, this (quoted from the paper) is my own hypothesis about what explains their data:

[Perhaps] when applicants for legal academic positions go on the job market, they select a field in which they believe that they could make the most important contributions, from a moral or ideological standpoint. For example, a liberal applicant who believes that courts have failed to provide adequate protection to criminal defendants may select constitutional law or criminal procedure. This person would then write left-leaning articles over the course of her career.

In any event, this paper is sure to be the talk of the town.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).

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