Should Conservative and Libertarian Law Students Consider a Career in Legal Academia?

As I’ve noted on this blog before, and despite the occasional contrary protestation, there is no doubt that conservatives and libertarians face discrimination when seeking academic jobs. But that shouldn’t necessarily stop a motivated individual from pursuing an academic career. Here are some additional things to consider:

(1) The amount of discrimination one faces is highly dependent on subject area. If your field is constitutional law, environmental law, international law, or other highly politicized fields, you will likely face substantial discrimination. If, on the other hand, your field is tax, international business transactions, or ERISA, it’s unlikely anyone will give a rat’s patootie what your political views are. It’s probably marginally helpful to be a liberal law and economics scholar in various commercial law fields, but you are likely significantly better off being a libertarian in those fields than someone with a “critical studies” background who thinks that economics is bunk.

(2) Something like 80-90% of law professors are, broadly speaking, on the “left.” But “the right” wins approximately 50% of all elections. So if you desire to have influence on American politics, or to use your academic job as a springboard to a judgeship or a political appointment (which don’t interest me in the slightest), you have a significant advantage if you are “on the right.”

(3) Not surprisingly, people on the left have a different worldview than do people on the right. This means that non-liberal academics will find their scholarly ideas less likely to be preempted than will liberals. In my own case, much of my early academic work was about how economic regulation harmed members of minority groups who lacked political power, and how court decisions that limited such regulation helped them. I won’t claim this was a brilliant insight; indeed, it seemed kind of obvious to me. But it’s not something that my academic colleagues had pursued, and indeed, they typically found my thesis counter-intuitive. (Speaking of discrimination/hostility: I presented a paper early in my career at a leading New England law school, and a member of the faculty came up to me after the talk and said, in a somewhat menacing voice, “I see right through what you are trying to do here David, and don’t think you’re getting away with it.” The controversial topic that spurred such outrage? The history of the regulation of Chinese laundries in the 19th century American West.)

(4) While conservatives and libertarians may find it difficult to take advantage of certain liberal academic networks (consider Obama’s biography from the time he was recognized as a “star” at Harvard for an idea of what I’m talking about), there are institutions out there whose mission is to specifically help budding non-liberal academics. The Institute for Humane Studies provides scholarships, advice, and mentoring to libertarians. The Federalist Society has an increasingly active faculty division, which taps in to a small but still influential network, provides post-law school fellowships, and otherwise tries to aid its members who want academic jobs. I benefited early in my career from an Olin Foundation fellowship, which paid for a year’s sabbatical that turned out to be highly productive. And I should add that many liberal academics are entirely fair-minded, and quite a few have been of great assistance to me at various points in my career.

(5) Anecdotally, discrimination against conservatives and libertarians has gone down significantly since I was first on the market in the early ’90s. The main reason, I think, is that almost every law school has at least a few “right-wingers” on the faculty. This serves two functions. First, it harder to demonize new applicants when “Charlie down the hall is such a nice guy.” (“Demonize” is not too strong. An otherwise very nice professor who recently commented on a paper of mine told me that before he met me, and having read my writings, he thought I “would have two horns and a tale.”) Second, it’s much harder to engage in overt discrimination against conservatives and libertarians when there are conservatives and libertarians around. Again anecdotally, conservatives and libertarians are FAR more likely to get entry-level callbacks or interest from lateral committees when there is at least one conservative or libertarian on the appointments committee.

(6) Finally, and perhaps most important, being a law professor is a great job, at least for those who like to write and teach. I suppose there are some individuals who will nurse a grudge their entire career if they feel they “belong” at a better law school, but their views are too controversial to climb the academic ladder. But really, the difference between life at, say, the number 70 law school and the number 20 law school, compared to the difference between being a law professor at any reputable school and working at a big law firm, is pretty minimal. This is especially true these days, as blogs, SSRN, university presses, and other mechanisms to publicize one’s work have severely diminished the monopoly power law reviews and invitations to present at top-15 schools–both of which are inordinately sensitive to the rank of the school an author is employed by, as opposed to the quality of the underlying scholarship–once had over the dissemination of ideas.